Research On The Application Of The Voluntary Risk Rule In Sports Infringement Dispute

In recent years,with the improvement of living standards,people pay more and more attention to the pursuit of a healthy life,the awareness of national fitness is getting stronger and stronger,and the sports atmosphere is getting stronger and stronger,and everyone recognizes the importance of physical health issues and the necessity of popularizing sports for all.Since the inclusion of the risk rules in the Civil Code has provided clear legal provisions to regulate the liability issues arising from tort disputes in sports activities,there are clear legal rules of adjudication after the occurrence of disputes,providing the rule of law guarantee for the general public to participate in sports activities,and the judicial level has ushered in a new opportunity for the trial of tort disputes in sports activities.However,we have to admit that two years after the promulgation of the Civil Code,there are still deviations in judicial practice regarding the scope of application of the rule in sports activities,and the courts have difficulty in accurately examining the subjective state of mind of the victims,resulting in different judgments and confusion in the final outcome of the cases.The above situation brings certain obstacles to the correct application of the new rules of the Civil Code,and in the final analysis is not conducive to the construction of a strong sports country in China.Based on the above situation,this article selects the cases related to the infringement of sports activities in judicial practice since the self-giving risk rule was explicitly incorporated into the Civil Code,and discusses the problems in the application of the self-giving risk rule in sports activities.The first part of the article briefly analyzes the concept,legal attributes and constitutive elements of self-giving risk.The second part takes two cases of sports tort disputes as the starting point and analyzes the difficulties in the application of the self-giving risk rule in sports tort disputes,including the controversial scope of "cultural and sports activities of a certain risk",the difficulty in determining the victim’s "voluntary participation",and the difficulty in judicial practice in the confusion of the application of the self-giving risk rule.The third part of the paper analyzes the difficulties in the application of the "self-induced risk rule" in sports tort disputes.The third part firstly defines sports activities and their risks,discusses the scope of sports activities to which the self-giving risk rule applies,and lays a theoretical foundation for the subsequent application of the self-giving risk rule in sports tort disputes,secondly clarifies the meaning of "voluntary" in the self-giving risk rule,and distinguishes the self-giving risk rule from the victim’s consent.Finally,we analyze the mixed use of the principle of fair liability in sports tort disputes and the reasons for it.Part IV addresses the dilemma of application in Part II,proposes to accurately grasp the meaning of "certain risk" and "cultural and sports activities",and refine the examination of the victim’s "voluntary participation".It is hoped that these three proposals will be useful for promoting the rule of law in sports in China.