Research On The Assumption Of Risk Under The Background Of Civil Code

After several legislative proposals,the Civil Code was amended to establish the risk of self-involvement rule as one of the exemptions of the tort liability.This innovation of the Civil Code has made the judicial application of the self-satisfied risk rule free from the situation that it is impossible to rely on.However,because of the significant differences between this provision and the previous judicial practice,localized interpretation and research are necessary.The author analyzes this rule in order to provide valuable suggestions.The first part of this paper compares the concept and type of self-giving risk rules.Drawing on the idea of sports accident risk,the type structure of assumption of risk in China is summarized into three specific types: activity risk,activity injury and activity accident.The second part addresses the problem of confusion and cross-application assumption of risk with negligence offset and equitable liability in judicial practice,and compares the differences between the assumption of risk and these two similar rules.The second part addresses the problem of confusion and cross-application assumption of risk with negligence offset and equitable liability in judicial practice,and compares the differences between assumption of risk and these two similar rules.The third part examines the constitutive elements of the localized risk of self-giving rule,which is a matter of deep controversy in the academic community.The author,based on the summary of scholars’ viewpoints and the case search on the website of judges,believes that the rule should be composed of four parts: the risk of cultural and sports activities,the victim’s willingness to risk and objective damage,and the absence of intentional or gross negligence of the aggrieved party.The fourth part of the study of the legal effects of self-giving risk.The author discusses the legal effects of the self-giving risk rule in different contexts according to the different subjects and by situation.Between the aggressor and the victim,under the condition that the aggressor is not intentional or grossly negligent,the aggressor is not liable for damages;while the organizer of cultural and sports activities and the victim’s liability is determined by the key to the performance of the organizer’s safety and security obligations,the organizer of the activity fails to fulfill its safety and security obligations,the victim cannot be completely exempted from liability on the grounds of self-giving risk.The fifth part of the author puts forward suggestions to improve the difficulties of judicial application of the self-giving risk rule in current judicial practice.The author believes that,first of all,the interpretation of cultural and sports activities should follow the usual interpretation,that is,cultural and artistic activities and rival sports activities should belong to the scope of application of the Assumption of risk rule,and the typology enumerates the circumstances that exclude the application of the rule,mainly including hobby activities that do not have activity rules and illegal cultural and sports activities.Secondly,the key factor for judging self-giving is "knowledge",and the determination of knowledge in the types of express and implied self-giving risks is discussed separately.Finally,according to the application of the principle of imputation with the relevant provisions of China’s tort liability codification and civil procedure law on the burden of proof and standard of proof.It is worth noting that if the strict application of the allocation of the burden of proof affects the fairness of the judgment,the judge should be given a certain scope of discretion to require the relatively strong party to bear a greater burden of proof to ensure that the trial results are substantially fair.