Research On The Constituent Elements Of Self Willing Risk Rule

Generally speaking,assumption of risk refers to the victim have already noticed the existence of danger,or know that he/she will be exposed to some risks.In terms of these,the victim still take risk to do things and leads to a harmful result.The rules of assumption of risk originate from law in other countries.Our Chinese academic circles have been holding different opinions on this.In the past ten years,there were two summits of debate,and finally this law was formalized into the Civil Code.This law is suitable for the cultural and sports activities with an certain risk and give an equal position for the participants who take part in the certain risk activity.As for the participants who suffered injure in the activity,if in a situation that satisfies the constituent requirements of assumption of risk,the law no longer pursue the infringer’s responsibility blindly and exempt other participants from liability for damages.There are some problems of confusion about principle of offset against negligence and application about fairness principle in the understanding and application of the rules of assumption of risk.The disputes in theoretical research and between different judges were caused by unclear constituent elements of the rules.The author gained enlightenment from sorting out the existing research results on the rules of assumption of risk in foreign laws and analyzing the differences on our law environment.The constituent elements of the rules can be concluded by sorting the judges’ views on typical cases and then to find out the common ground.By reading different references,then to sort out the differences between the rules of assumption of risk and other relevant concepts,that would be helpful to set the constituent elements of the rules.It is including: “the reasonable definition of the certain risks in the cultural and sports activities”,“the certain risks” refers to inherent risks.The result of damage can be accepted by the victim because that is caused by the realization of inherent risk;Cultural and sports activities include competitive sports activities and sports which are familiar to the public.The key element to judge the subjective aspects of participants are their being in the know and willingness.Being in the know refers to the participants who know the degree of danger inherent in risk;Willingness refers to proactively approach risk without coercion.Other participants should have no purpose or gross negligence.Define the activity participants and other activities participants,and regulate the range of subjects.Conclude the exclusion situations of event organizer liability,and organizer’s security responsibility,which should not exceed the reasonable range.