Comments On Article 1176 Of The Civil Code (Assumption Of Risk)

As an important type of legal literature and a legal service tool,legal commentaries are of great value for theoretical research and guidance on judicial application.In the post-Civil Code era,legislation,judiciary and academic research have accumulated certain materials and achievements,which provide the necessary conditions and mature opportunities for legal commentary.Including.Article 1176 of the "Civil Code" is a clause of the self-willing risk rule,which has important practical significance for maintaining the overall fairness of the society and promoting the development of cultural and sports undertakings.However,before the promulgation of the "Civil Code",the theoretical controversy over whether the self-willing risk rule was included in the code ran through the entire legislative process,and the three drafts submitted for review were revised several times.However,Article 1176 of the finally established "Civil Code" is quite different from the traditional self-willing risk theory.It has obvious localization characteristics in terms of scope of application,constituent elements and normative effects.The relevant concepts have certain characteristics in judicial application.explain space.At present,the relevant theoretical researches on the self-willing risk rule mostly focus on the field of norm comparison and application,and there are few researches on the clause itself and norm structure.In order to meet the needs of judicial practice,this article intends to discuss the relevant elements of the self-willing risk rule from the perspective of commentary as an explanatory reserve,so as to avoid applicable conflicts or contradictions in the subsequent judicial practice of the system.The self-willing risk rule originated from Anglo-American law.The Civil Code is the first time that my country has recognized the validity of the rule at the level of legal norms,making it a statutory independent defense in the tort liability section,with the legal effect of complete exemption from liability.However,it is different from the victim’s consent system,negligence countermeasures and other defenses in terms of theoretical basis,scope of application and legal effect.Paragraph 1 of Article1176 stipulates the constituent elements of the voluntary risk rule.The positive elements include four aspects: voluntary,risk,cultural and sports activities and damage results.Among them,voluntary is premised on risk perception,and minors can also express voluntary;Certain risks refer to the inherent risks of cultural and sports activities,which are necessarily related to the development of the activities;cultural and sports activities refer to activities that are generally recognized by the society and are legal,risky and confrontational;the source of damage must be other participants in the same activity.the audience cannot be regarded as other participants.Negative elements include intentional or gross negligence,and the general negligence of the perpetrator does not deny the application of the voluntary risk rule.Paragraph 2stipulates the responsibilities of the event organizer,including the responsibility for breaching safety and security obligations and the responsibility for education management,and clarifies that event organizers and event participants apply different responsibilities and standards of duty of care.The burden of proof rests on the defending defendant(that is the other participant who caused the damage).The specific responsibilities of event organizers are governed by Articles 1199 to 1201 of the Civil Code.According to the existing theoretical achievements and practical materials,this paper makes a preliminary explanation of the types of activities,the definition of the subject and the proof of the requirements in the self-willing risk rule in the form of commentary.In the future judicial application of the self-willing risk rule,necessary refinements and supplements should be made from the perspectives of the scope of application,constituent elements,and the responsibility of the event organizer,in order to better connect Article 1176 with the "Civil Code" system and related provisions.Applicable to further promote the prosperity and development of my country’s cultural and sports undertakings.