Study On The Application Of The Rule Of Voluntary Risk In China’s Civil Code

China formally established the "voluntary risk" rule for participants in the field of cultural and sports activities in article 1176 of the civil code.For this rule,there have been great disputes in the previous theoretical and judicial practice,and there have been a large number of different judgments in the same case,which urgently need to be regulated by a unified legal norm.The formal implementation of the civil code responds to this practical demand.However,due to the relatively abstract provisions of rules,there is still room for further interpretation in practical application.Therefore,it is necessary to reasonably interpret the rule and give full play to the role of the rule based on the civil law system and combined with judicial practice.The full text is divided into five parts.The first part makes a basic definition of the legal provisions of the voluntary risk rule in the civil code,and clarifies the difference between the voluntary risk rule and other tort liability rules.The second part makes clear the theoretical and practical value of establishing the self willing risk rule in China by reviewing the legislative process of the self willing risk rule in China.The third part finds that there are still several problems to be solved in the current judicial practice through case induction and analysis: first,the judgment of the scope of recreational and sports activities is vague;Second,there are differences in the specific definition standards of several constituent elements;Third,there is a mixed application with other tort liability rules.The fourth part reviews the development process of the voluntary risk rule in common law countries and civil law countries,and comes to the enlightenment that the voluntary risk rule can still play an irreplaceable role in other tort liability rules on the premise of reasonably limiting the scope of application and reasonably defining the constituent elements.The fifth part puts forward the viewpoint of this paper.In the judgment of the scope of application,the judgment standard consists of "certain risk" and "recreational and sports activities".Recreational and sports activities refer to the two fields of cultural activities and sports activities.Cultural activities mainly refer to adventure cultural and recreational activities.Sports activities include not only competitive and antagonistic sports activities,but also leisure and entertainment sports activities.The nature of activities shall not violate laws and regulations and social public order and good customs,The "risk" of "certain risk" refers to the inherent internal risk of cultural and sports activities,which is triggered by the behavior of other participants and causes realistic damage."Certain" is the limit word of risk,which is between low risk and high risk,and excludes the application of high risk.The tort liability of high-risk cultural and sports activities should be handled by other imputation principles;In terms of constituent elements,they should have the ability of risk cognition,participate voluntarily,exclude intentional or gross negligence,and the damage is caused by the behavior of other participants,and the identification of these elements is reasonably interpreted in this paper;Finally,on the premise of clarifying the establishment of the self willing risk rule,the application of contributory negligence and fair liability should be excluded.