Application Of The Assumption Of Risk In The Civil Code

Article 1176 of the Civil Code stipulates the rule of “Assumption of risk” for the first time.Someone participates in a recreational and sports activity with certain risks voluntarily,the other participants doesn’t have to bear tort liability unless the other participants intentional or gross negligence.Through the retrieval of judicial cases in previous years,it is found that before the promulgation of the Civil Code,local courts often made judgments based on the common understanding of society and the jurisprudence developed by extraterritorial judicial experience.It is resulted in the phenomenon of confusing the assumption of risk rule with other defense reasons when applying the jurisprudence,and different judgments in the same case.Even after the promulgation of the Civil Code,the court still applied the assumption of risk rule in combination with other defense grounds in adjudication,which was contrary to the original intention of the legislator to establish the rule.Therefore,this paper attempts to discuss the constituent elements and specific application of the assumption of risk rule from the perspective of interpretation theory.Based on the judicial cases related to assumption of risk rule in the past ten years,this paper analyzes the trial thoughts of courts in cases of cultural and sports activities,and finds that there are errors in case,which confuses the assumption of risk rule with comparative negligence and the victim’s consent,or in order to ease the contradiction between the parties,multiple defense reasons are superimposed and applied,so as to increase the liability of other activity participants and share the losses of the victims.However,the difference between the assumption of risk rule and other defenses is that if the perpetrator’s conduct meets the constituent elements of assumption of risk rule,then his ordinary negligence does not constitute an infringement.In addition,the interpretation of paragraphs 1 and 2 of article 1176 should be noted that the liability of participants in other activities set out in paragraph 1 is different from the duty of organizer of the activity in paragraph 2,and the liability is naturally different.Besides,it is found that the responsibility between victims and other activity participants and activity organizers in the development of the assumption of risk rule is mainly guided by the efficiency and fairness values,by analyzing the evolution of the rule in other countries.Since the birth of the risk rule,in order to meet the development needs of the capitalist economy and the interests of employers,courts often pursue the maximization of efficiency when determining relevant cases,and expand the scope of application of the risk rule to the field of employment,and it is naturally unfair for workers to bear all the damage suffered in the process of engaging in production activities.The Civil Code draws on the experience of the common law system when bringing in the risk rule,so as to pay attention to efficiency and fairness and justice.However,due to the concise nature of the self-acceptance risk provisions and the lack of relevant judicial interpretations,the courts are still too cautious in applying the rules,which is inconsistent with the purpose of the legislator to promote the development of our cultural and sports undertakings,and such issues need to be explained.