| As an ancient imputation principle in tort liability law,the rules of assumption of risk is derived from a law saying of ancient Roman law “no harm is done to volunteers”,but it has been controversial since its inception because of its strict legal effect.In foreign countries,the rules of assumption of risk has undergone a long evolution since its birth,and with the rise of the imputation principle of fault liability,the rules of assumption of risk has gradually declined.In our country,the history of the rules of assumption of risk is not long,but we can always see cases involving the rules of assumption of risk in practice.In foreign countries,the rules of assumption of risk is gradually abandoned,while in China,the application of the rules of assumption of risk is common,showing a trend of gradually rising.Then gradually abandoned the rules of assumption of risk in abroad,is it necessary to follow the foreign practice in our country,since the rules of assumption of risk whether also has its independence and the rules of assumption of risk how to specific applicable in our country,especially in responsibility identification,and whether there is any need to China the rules of assumption of risk legislation such as the problem is we need to consider carefully.This paper is divided into five parts to carry on a series of analysis to the rules of assumption of risk.In the first part,the author identifies the rules of assumption of risk and analyzes the differences between the rules of assumption of risk and similar systems by using the method of comparison.The second part,through the development history of the rules of assumption of risk to comb,the comprehensive understanding of the rules of assumption of risk,especially its independence in foreign countries has been questioned by the majority,has shown a backward trend.However,the existence of risk society makes us have to re-examine the rules of assumption of risk.In today’s world full of unknown risks,the self-risk rule still has the significance of being independent of other exemption defenses in tort law.The third part,through the domestic and international comparison of the treatment of the rules of assumption of risk,and the above will be self-risk rules and similar system discrimination,understand the development of the rules of assumption of risk in China.Self-adventure in our country has its meaning of independent existence,but there are many problems.The fourth part,mainly combining with the above analysis and the actual situation of our country,puts forward some problems since the rules of assumption of risk,apply in judicial practice is not standard,such as duty reduction and exemption situation did not distinguish and confused with similar system,the lack of legislation and the applicable scope we need to further solve the problem such as how to define all.The fifth part,mainly according to our country’s judicial practice,the theoretical circle calls as well as the related provisions in civil code(draft),as well as mentioned in the fourth part of the existing problems,and puts forward some Suggestions of legislation in our country since the rules of assumption of risk,and on the basis of legislative proposals,since the rules of assumption of risk in our country to build the model of judicial application.Think since the rules of assumption of risk can be widely used in risky activities,namely applicable range should not limit is too narrow,but can be quoted from the main body of the rules of assumption of risk need to be strictly limited,that it doesn’t lead to the abuse of the rules of assumption of risk,at the same time should be add on the exemption of risk-taking apply for in the hope of a better real justice. |
