Research On The Application Of The Civil Code’s "Voluntary Assumption Of Risk" Rule In Mass Sports

Voluntary assumption of risk refers to the situation where the injured party voluntarily takes risky actions when he or she knows or should have known that he or she is exposed to a certain risk,so as to assumes the damage caused by the occurrence of the risk.As a widely accepted tort exemption in comparative law,the risk of selfinvolvement manifests the spirit of individualism and independent will.Prior to the implementation of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code"),China’s tort liability law did not specifically provide for the risk of self-giving,and the circumstances in which the risk of self-giving was applied varied greatly in judicial practice.When determining the risk of self-giving by the victim,judges often confused it with the victim’s consent,with negligence and with the absence of fault on the part of the aggressor.In order to address this issue,the Civil Code introduced the risk of cultural and sporting activities rule as a statutory exemption from liability.However,it is not possible to define the "certain risks","cultural and sports activities","participants" and "legal effects" mentioned in the rule.However,there is no direct answer to the question of how to define the term "certain risks","cultural and sports activities","participants" and "legal effects",which makes it impossible for the judiciary to accurately apply the rule of self-induced risks.For this reason,the scholarly community has conducted some doctrinal discussions on the application of this provision to mass sports activities,and this paper examines this.This article collects and summarises the judicial cases related to the risk of selfgiving through China Judgements Online and Magic Weapon of Peking University,and compares the judicial practice of its application before and after the promulgation of the Civil Code,and summarises three main differences,namely the scope of application of the risk of self-giving rule,including the change of the scope of the applicable field and the scope of the applicable subject,the change of the constitutive elements and the corresponding criteria for the court to determine the risk of self-giving,and the clear status of the exemption from liability of the risk of self-giving rule.An analysis of the differences shows that the scope of application of the self-giving risk rule is unclear,the elements of application are difficult to determine,and the legal effects are different.The same type of dispute has different adjudication results,which is not only easy to cause social controversy,but also easy to blur the boundaries of responsibility between the social participants of cultural and sports activities.Based on this,this article elaborates on the jurisprudential values behind the judiciary’s judgement,including theories of individualism,distributive justice and permissible danger,from the theoretical basis of self-giving risk.Different theories are justified in their application in different fields and need to be applied on a field-specific basis.At the same time,the original meaning of limiting the risk of self-gratification to a specific field,i.e.the field of cultural and sporting activities,is explained.The purpose of this limitation is to distinguish it from the principle of the offsetting of fault and equitable liability and to highlight the independent legal status of the autarkic risk rule in recognition of the risks inherent in cultural and sporting activities,in order to meet the needs of the development of mass sports.Finally,the analysis of the characteristics of mass sports,including the low duty of care of participants,the difficulty of proof for victims,and the single avenue of redress,reveals the reasons for the application of special rules on the allocation of liability,and provides a basis for justifying the application of the autarkic risk rule in specific areas.Combined with the above theories,this article proposes the optimisation of the application of the autarkic risk rule in mass sports.Firstly,the scope of application should be limited to the field of mass sports,which is much narrower than the traditional civil law meaning of the risk of self-giving.In terms of the subject matter of application,the scope of participants in mass sports is clarified,including persons with restricted capacity and spectators.Secondly,in terms of the applicable elements,the victim’s knowledge of the risk and voluntary participation are divided into two criteria,and the victim’s knowledge of the risk and voluntary participation are divided into two criteria,one being knowledge of the risk,which includes both express and implied means.Explicit risk is not inherent to the express content and requires the victim’s consent to be distinguished.Implied risk requires an inference of the subjective intent of the participant in relation to objective conditions such as age and capacity.The specific judgement should be based on the perception criteria of the general public participating in the sport.One is voluntary participation,which is judged as non-coercion or fraud,and includes both subjective and objective criteria,with no subjective "external pressure" and no objective alternative.In the determination of intent and gross negligence,the duty of care of the perpetrator is combined with the specificity of sporting rules as a condition for the determination of the duty of care from multiple perspectives.Finally,in terms of the applicable effect,the rule of autarkic risk is strictly applied by means of an interpretive approach,with the legal effect of exoneration from liability and no longer applying equitable liability,while the principle of fault should be applied to fill the victim’s losses in the case of torts not covered by autarkic risk,while excluding the application of the liability of the event organiser,thus enabling the autarkic risk rule to effectively resolve personal tort disputes in mass sports.