Research On The Judicial Application Of Self-willing Risk Rules

The self-resignation risk rule,as an ancient defence,has its origins in the ancient Roman proverb "no harm to the consenter".After hundreds of years of development,in countries outside the region,this rule either as a reason for exemption or as a reason for reducing liability,the rule system is stricter than before.and there is still a certain space for application in modern society.After discussion and demonstration by legislators,in the Civil Code adopted in 2020,this rule was officially written into it as a cause of exemption,becoming an important part of China’s tort liability law system,providing a basis for the accurate determination and division of responsibility for relevant acts.The self-willing risk rules were involved in the judiciary before the promulgation of China’s Civil Code,such as the sports field and the transportation field,but due to the lack of clear and unified provisions,the application situation was relatively confusing,resulting in many "different judgments in the same case",which affected the fairness of the trial.After Article 1176 of China’s Civil Code clearly stipulates the self-willing risk rule,it does not mean that the discussion of the rule is over,but has entered a new stage.That is,the stage of self-willingness to improve,and some issues need to be further explored,such as the distinction from the relevant rules,the ambiguity of the scope of application,the problem of different criteria for determining "participation",and the problem of unclear positioning of the organizer.First,this paper analyzes the concept,historical origin and constituent elements of the self-willing risk rule from the legal basis of the self-willing risk rule.Then,based on the current legislative and judicial status of our country,raise questions through typical cases;Then,with the help of the historical development experience of extraterritorial self-willing risk rules.It will be demonstrated,combined with China’s actual situation,and improve China’s self-willing risk rules.As an independent cause of defense,the self-willing risk rule distinguishes between selfwilling risk and victim consent,self-willing risk and negligence,self-willing risk and fair liability from the perspective of constituent elements.Second,interpret the criteria for determining "certain risk" from three aspects: the source of risk,the perception of risk,and whether "adversarial" is required.Third,defining "cultural and sports activities" in terms of the number of people and the nature of the activities;"Participation" is interpreted broadly in the spirit of the legislation.The fotth is to clarify the responsibilities of the organizer from the scope of legislative interpretation and duty of care.