《民法典》自甘风险规则辨析及其适用细化

On the Assumption of Risk Rules in the Civil Code and Its Application

摘要: 《民法典》将自甘风险确认为法定免责事由，明确了自甘风险规则的适用范围。司法实践应当适应立法的变化，停止宽泛适用“自甘风险”一词，避免自甘风险与受害人同意、过失相抵相互冲突现象的反复出现。在法律规范与学术理论基础上，应当明确“一定风险的文体活动”、“其他参加者”的含义，同时还应明确自甘风险规则的法律效果，以充分发挥自甘风险规则的作用。

Abstract: The Civil Code recognizes the assumption of risk as a statutory exemption and innovatively limits the scope of application of the assumption of risk rule. Judicial practice should adapt to changes in legislation as soon as possible, change the previous situation of broad application of the term “self-acceptance risk”, and avoid the recurrence of conflicts between assumption of risk and the victim’s consent and negligence. On the basis of the new legal norms and the theory, the meaning of “cultural and sports activities with certain risks” and “other participants” should be clarified, and the legal effects of the self-willing risk rules should also be clarified, so as to give full play to the role of the self-willing risk rules.