Research On The Legal Application Of The Self-willing Risk Rule In The "Civil Code"

The self-willing risk rule has a long history.In essence,it is an exemption from liability in tort liability law,that is,the infringed voluntarily participates in risky activities,and the loss caused by it should be borne by itself.Before the promulgation of the Civil Code,this rule was not stipulated in the tort liability law at that time.In judicial practice,the application of this rule has problems such as inconsistent constituent elements,vague scope of application,and unclear basis for application.For these problems,the principle of fair liability or negligence is mostly applied in legal practice to resolve them as a compromise.This way of handling often leads to the phenomenon of different judgments in the same case and different reasons for the same judgment,resulting in judicial confusion.Now,Article 1176 has been newly added to the Civil Code,which for the first time establishes the self-willing risk rule as a reason for exemption,and limits the application conditions and scope of the self-willing risk rule.This is self-willing risk A major breakthrough in the application of the rules in my country provides a basis for the judicial system to handle such cases and points out the direction.However,in order to accurately apply the self-willing risk rule,it is necessary to do a good job in legal interpretation,establish unified constituent elements for it,strictly distinguish it from several rules that are easily confused with it,and accurately define "risky cultural and sports activities".”and clarify its scope of application.This article takes judicial adjudication as the entry point to conduct research on the above issues.This paper includes three parts: introduction,body and conclusion.The introduction mainly introduces the origin and time of introduction of the self-willing risk rule,and puts forward the problems existing in the legal practice of this rule in our country;The insufficiency of the study of this rule;taking the opportunity of establishing the self-willing risk rule as an independent exemption from liability in my country’s Civil Code,it points out the direction for the future interpretation theory.The main text is divided into three chapters: the first chapter is an overview of the self-willing risk rule,which expounds the origin,development and the reasons for the change of the self-willing risk rule.The changes,taking the promulgation of the Civil Code as a node,respectively pointed out the predicament that the Civil Code could not rely on before the promulgation of the Civil Code,and the newly added laws after the promulgation of the Civil Code established the self-willing risk rule.The second chapter analyzes the application conditions,scope of application and the definition of "risk" of the self-willing risk rule,summarizes the problems existing in the application of the rule,and provides a direction for the legal interpretation of the new provisions in the next step.The third chapter is how to improve the legal application of the self-willing risk rule,unify the application conditions,limit the scope of application,and strictly distinguish the rule from the easily confused rule.On the basis of summarizing the preceding paragraphs,the conclusion puts forward the limitations of the newly added provisions in the author’s opinion,hoping to make appropriate improvements to further clear the obstacles to the application of the self-willing risk rule in our legal practice.