Search On The Rule Of Application Of Assumption Of Risk Of The Civil Code

For the first time in China,the Civil Code provides for the rule of willingness to take risks as an exemption from liability.Although this provision is a new rule,it has been used in practice for a long time.In addition,the Tort Liability Law and other related laws do not explicitly provide for the exclusion of liability for the risk of self-injury,so in judicial practice,the courts have not uniformly applied the law to disputes arising from the risk of self-injury,resulting in a large number of Some courts have included the victim’s consent to the risk,some courts have included the "offset of fault",and some courts have decided to use the principle of fair attribution of liability to compensate.There are various types of risk-taking in practice.The Civil Code limits the scope of application of the rule of willingness to take risks to "cultural and sporting activities of a certain risk",and the legislator did not clearly explain the controversies arising from the application of the provision of Article 1176 of the Civil Code,whether it is "a certain risk" or "cultural and sporting activities"."The specific scope of application is extremely controversial,leading to differences in subsequent liability.In this regard,this paper will discuss the problems arising from the judicial application of the rule of self-risking,and demonstrate the criteria for the application of the rule of self-risking in the context of the Civil Code through a systematic interpretation method.Starting from the theoretical basis of the rule of self-adventure,the unique judicial practice significance of the rule of self-adventure will be confirmed,and the subject of application cannot simply exclude minors,nor can the "audience" be included in the category of victims or other participants.For risky sports and cultural activities,the scope of risk and negligence should be determined according to the objective standards of ordinary rational people.The legal effect of the self-giving risk rule is to exclude liability,which has a great impact on the compensation or relief of the parties,and should adopt a strict standard of proof of liability to determine the way of liability of the parties.