Study On The Legal Application Of The Rules Of Assumption Of Risk In Civil Code

In 2021,the Civil Code of the People’s Republic of China came into force,and its Article 1176 provides for the assumption of risk rule,which is the first legal document formally providing for the assumption of risk rule in China.The incorporation of the assumption of risk rule into the Civil Code fills the previous legal gap,improves the composition system of the tort liability codification,solves many controversies existing in the previous judicial practice,and provides adjudication guidelines for the future judicial practice.The introduction of the assumption of risk rule in cultural and sports activities is conducive to safeguarding the enthusiasm of participants in cultural and sports activities and respecting the freedom of behavior of participants in cultural and sports activities.Facing the problems of unclear elements of judicial application,mixed application with other rules and unclear scope of application left in China’s previous judicial practice,further research is needed to clarify the legal application of the assumption of risk rule.The paper is divided into three parts: introduction,body and conclusion,and the body is divided into four chapters:The first chapter defines the concept of the rule of assumption of risk by sorting out the origins of the concept of the rule of assumption of risk,and analyses the core elements of assumption of risk,one being the existence of risk in the activity,but knowing that the activity has risk or voluntarily participating in it.It also compares the concepts of assumption of risk with those of victim consent and negligence,and examines the legal attributes of the assumption of risk by identifying the differences between them,in order to provide theoretical support for the following study on the issues related to the rule of assumption of risk.The second chapter discusses the legal status of the autarky rule in the Civil Code.There has been a controversy over whether the autarky rule can serve as an independent exclusion of liability,focusing on whether the victim’s consent and the rule of offsetting fault can completely replace the autarky rule in solving the relevant problems and whether the focus of the solution lies in respecting the autonomy of the parties or the reasonable apportionment of damages.We will discuss the theoretical support for the use of the assumption of risk rule as an independent exclusion of liability in cultural and sports activities,taking into account the history of the Civil Code and previous discussions on whether the assumption of risk rule can be used as an independent exclusion of liability.The third chapter summarises the elements of the judicial application of the rule of assumption of risk based on the provisions of Article 1176 of the Civil Code.By analysing the previous views on the elements of assumption of risk and summarising the strengths and weaknesses,it is considered that the elements of the rule of assumption of risk for cultural and sports activities in the Civil Code include the following four aspects: the objective existence of a certain risk,the victim’s knowledge of the existence of the risk,the victim’s voluntary acceptance of the risk,and the absence of intent or gross negligence on the part of the perpetrator.The objective existence of risk should be inherent in cultural and sports activities;the determination of the victim’s knowledge of the risk should be judged in relation to the victim’s own awareness,the popularity of the activity itself and,if Hoon is the organiser of the activity,whether the organiser of the activity has fulfilled its obligation to inform of the risk;in the determination of the victim’s voluntary acceptance of the risk,the explicit assumption of risk is easily known and the implied assumption of risk can be introduced In the absence of intent or gross negligence on the part of the perpetrator,the perpetrator should be allowed to exclude himself from liability by opting for the risk of self-inflicted liability rule in the event of ordinary negligence such as minor foul play.The forth chapter examines the scope of application of the constitutive elements of the assumption of risk rule.The first part discusses the scope of application of the assumption of risk rule to activities,pointing out that the riskiness of so-called "cultural and sports activities" should be limited to a certain range,and that neither too high nor too low can be included in the scope of application of the assumption of risk rule to cultural and sports activities,and It is also suggested that the application of the assumption of risk rule should be excluded by analogy in other areas,and that the increasingly specific term "assumption of risk" should not be used to describe the behaviour of victims in other areas to avoid confusion in its application.The second part discusses the subjective scope of application of the at-risk rule,arguing that the criterion for defining a participant in a cultural or sporting activity is whether the person is involved in the activity and has suffered the risks inherent in it.It is agreed that persons with less than full civil capacity can also be the subject of the autarkic risk rule,but for reasons such as different expectations of risk and protection of the rights and interests of the injured spectators,spectators of cultural and sports activities should be excluded from the scope of application of the subject matter,and the damages of spectators can be remedied through the tort of negligence or the rule of set-off.