Study On The Application Of Assumption Of Risk Rule In The Injury Accidents Of Primary And Secondary Students

Article 1176 of the Civil Code clearly defines the assumption of risk rule of participating in sports activities in China’s Basic Law for the first time,which is of great significance for the treatment of injury accidents of primary and secondary school students.However,according to the data of the judicial documents,there are not only the phenomena that the scope of application of the assumption of risk rule is vague,the applicable personnel are not clear,the determination of "voluntary participation" is different,and the determination of "gross negligence" is difficult.In judicial application,it is often mixed and misused with the rules of comparative negligence,fair liability,and alternative liability,which cannot play its due role.The reasons are not only the limitations of legislation itself and the unclear theoretical concepts,but also the influence of the guidance of law and policy,the "kidnapping" of moral concepts,the shackles of trial thinking and the deficiencies of the existing insurance system.In order to change the current dilemma of the application of the assumption of risk rule in the injury accidents of primary and secondary school students,it is necessary to not only analyze and define its applicable elements in a specific way,but also strengthen the judicial identification ability of the court.Furthermore,it is necessary to provide a reasonable reference for the trial with the risk type construction.In addition,clarifying and strengthening the security obligations of primary and secondary schools and improving the student injury insurance system are also important tools to balance the applicable value of assumption of risk rule and the protection of minors.In addition to the introduction and conclusion,this paper is mainly divided into four parts:The first part: To clarify the role and significance of the assumption of risk rule in the application of injury accidents to primary and secondary school students,we will comb the theoretical meaning and evolution process of the assumption of risk rule at home and abroad,explore the intrinsic value of the assumption of risk rule.Explaining the constitutive requirements and legal effects of assumption of risk rule in the Civil Code will lay a theoretical foundation for the empirical research and further analysis of specific applicable points in the following text.The second part: By analyzing the current situation of the application of the assumption of risk rule in injury accidents in primary and secondary schools,based on judicial documents and practical cases,it is found that there are two main problems in the judicial application of the assumption of risk rule: on the one hand,the applicable standards of assumption of risk rule are different;On the other hand,it is a mixture and misuse of rules such as comparative negligence,fair liability,and alternative liability.The main reasons for the above problems are the confusion of similar rules and concepts,the limitations of legislation itself,and the guidance of legal policies,moral concepts,and judicial thinking.In addition,the inadequacy of the student injury insurance system is also an important reason.The third part: Combining the current situation and difficulties in the application of the assumption of risk rule,considering the special subject status of primary and secondary school students,this paper analyzes and sorts out the key points of the application of the assumption of risk rule in the Civil Code.Clarify the scope of recreational and sports activities that have certain risks in primary and secondary schools,construct a visibility chart for risk identification of primary and secondary students,clarify the relationship between different sports rules and the determination of "gross negligence",and clarify the safety and security obligations of primary.By explaining the pain points and difficulties in the application of these provisions,it is hoped to provide effective reference for judicial practice.The fourth part: Exploring the design of supporting systems for changing the application of assumption of risk rules to the "vulnerable" dilemma.Firstly,it is necessary to strengthen the judicial identification of assumption of risk case trials.Improve the professionalism and fairness of the trial by strengthening judicial interpretation,case guidance and introducing expert assistants;Secondly,it is necessary to clarify the safety protection obligations of primary and secondary schools in the application of voluntary risks,and establish a full process of risk prevention and control;Finally,it is necessary to improve the student injury insurance system,better alleviate the worries of students and schools,and promote the protection of the rights and interests of minors and the application value of assumption of risk.