Research On The Application Of Assumption Of Risk Rule In Civil Code

Article 1176 of the Civil Code stipulates the assumption of risk rule for the first time.The establishment of this rule fills the vacancy in legislation,unifies the judicial trial standards,and can effectively promote the sound development of our country’s cultural and sports undertakings.However,how it applies to judicial practice as a new legal norm is still in the blank stage,so it is necessary to further explain the content of this rule.Accordingly,based on the status quo of judicial application of the assumption of risk rule in our country,this paper analyzes and defines the scope of application,constituent elements,and responsibility of the rule,and puts forward suggestions for the application of the rule in judicial practice.By collecting and applying cases of assumption of risk rule,this paper analyzes the status quo of judicial trials and finds the following problems in judicial trials: the fields of application are too general,there is a lack of consistent constituent elements and identification standards,and the method of sharing responsibilities is not uniform.And from this,a series of legal thinking is extended.This paper identifies the scope of application of the assumption of risk rule from the two aspects of the applicable field and the applicable subject.Using a combination of generalization and enumeration to define the scope of "cultural and sports activities",it is concluded that cultural and sports activities mainly include confrontational competition activities and cultural and recreational activities,excluding outdoor adventure travel activities,and the degree of danger in cultural and sports activities.Only by meeting the standard of "certain risk" can it fall into the applicable field of the assumption of risk rule;in addition,the subject of the rule’s application includes not only the competitors but also the audience.Based on the theoretical analysis of the constitutive elements proposed by comparative scholars,this paper holds that the constitutive elements of the assumption of risk rule include "the victim knows the risk,the victim accepts the risk voluntarily,the damage is the result of the actualization of the inherent risk,the perpetrator does not have the intention to or gross negligence",and at the same time interpret the necessity of each constituent element,and give specific and operable identification standards.Regarding the issue of liability in the assumption of risk rule,this paper believes that the voluntary risk rule is an independent exemption from liability.Once applied,it will have the effect of exempting the doer from liability,and eliminate the application of negligence rule and equitable liability principle;secondly,it is clear that The organizer’s responsibility assumption standard and responsibility method can effectively coordinate the responsibility between the actor and the organizer.