| "Civil code" article one thousand one hundred and seventy-six of this law in the form of law for the first time since the rules of risk,the establishment of the rule is one of the highlights and tort liability of innovation,from the legislative level to realize the breakthrough from scratch,has been clear about the writing activities to damage cases,the responsibility of the parties,since unwilling to risk case provides new referee basis.As a new system in the tort liability system,self-willing risk is a new system in the tort liability system,and the courts are constantly in dispute when applying this rule.Therefore,in order to ensure the correct and efficient application of the self-willing risk rule,it is necessary to take the provisions of the Civil Code as a starting point and deepen the Study the legal application of willingness to risk.This paper first briefly describes the concept,types and constituent elements of self-willing risk,and then analyzes the judicial practice of self-willing risk rules,and conducts research on the basis of the establishment of self-willing risk.Before the establishment,my country has accumulated a certain amount of judicial Practical experience,but there are problems that the scope of application is too broad and the mode of adjudication is not unified.Although the risk of self-willingness in the era of the Civil Code has ended the previous embarrassing situation of "unable to rely on",it also highlights some new problems to be solved.The scope of application of the voluntary risk clause is not clear,and there is no further definition and explanation.When understanding and applying this rule,it is easy to be confused with the negligence offset situation,and there is still negligence offset within the scope of the application of voluntary risk.Applicable space.Finally,in view of the problems existing in my country’s judicial practice,the following solutions are proposed: on the one hand,the negligence negligence rule should be introduced appropriately,and the negligence negligence rule should be applied when the victim is at fault,so as to prevent the situation where the judgment result is too single;On the one hand,the scope of application of the self-willed risk rule is clarified by means of explanation,mainly from four aspects: clarifying the meaning of a certain risk,defining the scope of cultural and sports activities,limiting the scope of other participants,judging intentional and gross negligence.Provide sufficient justification for judicial decisions.With the official implementation of the "Civil Code",how to understand and apply the self-willed risk clause is an urgent problem that needs to be solved at present.The improvement and development of the self-willed risk rule still requires continuous exploration by the theoretical and practical circles. |
