Study On The Application Of The Rules Of Assumption Of Risk

The promulgation of the civil code not only makes a unified summary of China’s original legal system,but also introduces some new legal systems,one of which is the self willing risk rule.The establishment of the rule of voluntary risk in the civil code is of great significance to China’s judicial practice.It not only unifies the scope of application of voluntary risk,but also solves the situation of "different judgments in the same case" in the previous practical departments;It also defines the responsibility,which reflects the fairness and justice of China’s law.Therefore,the author did not elaborate the relevant provisions of the civil code and put forward some suggestions on the application of risks.Firstly,this thesis discusses the basic theory of self willing risk rule.This thesis introduces the basic concept of voluntary risk,distinguishes two concepts similar to voluntary risk: fair liability and negligence offset,and analyzes the constituent elements of voluntary risk from four aspects through its concept;Two types of explicit and implied risk are identified.Secondly,it introduces the specific application of the voluntary risk rule in China’s judicial practice.It is discussed from three aspects: different subjects,different categories and the situation where the self willing risk rule is not applicable.Thirdly,through some specific cases to illustrate the relevant problems in the application of the self willing risk rule before and after the promulgation of China’s civil code.Before the promulgation of the civil code,the rule of voluntary risk was often confused with the system of fair liability and contributory negligence in judicial practice,resulting in confusion in the trial results;In addition,there are different opinions on whether the scope of application of the self willing risk rule should be moderately expanded or strictly limited;After the application of the self willing risk rule,there is a lack of relief for the damage of the victims.Through these problems,the author puts forward the specific improvement suggestions to lay the foundation for the following text.Finally,some suggestions are put forward for the future application of the voluntary risk rule in China.This paper holds that as an exemption,the scope of application of the voluntary risk rule should be further limited,and its meaning cannot be expanded,let alone applied to other types of cases by analogy;The "recreational and sports activities" and "intention and gross negligence" stipulated in the self willing risk rules should be clearly defined;There are some similarities between the voluntary risk rule and the standard terms,which can be applied together,but we should pay attention to some concurrence in the application of the invalid standard terms;Since the voluntary risk rule requires the injured party to be fully responsible,the insurance system can be introduced to provide appropriate protection for the injured party to avoid attacking the enthusiasm of participating in cultural and sports activities.The author hopes that the improvement suggestions can promote the better development of the self willing risk rule and ensure that organizers and participants can safely participate in cultural and sports activities,so as to promote the further improvement of China’s civil code.