论自甘冒险抗辩在过失体育伤害归责中的有限保留

The Limited Reserves for the Defense of Risk Assumption in Negligent Sports Injury

通过有效的抗辩来免除或限制体育领域过失责任的承担,对于体育活动的正常开展和维持体育竞技的活力非常重要。一般认为,自甘冒险是体育伤害过失较为常见的抗辩事由。随着传统的自甘冒险抗辩在现代英美判例法实践中丧失其独立性,明示的自甘冒险和次要的默示自甘冒险也逐渐退出体育领域,但在以Knight案为典型的一批判例中,主要的默示自甘冒险却得以在体育领域保留和延续下来,并在此基础上派生出固有风险理论等。

Excluding or limiting the negligent liability in sports through the effective defense is significant for maintaining the vitality of sports. It is generally believed that risk assumption is a usual defense for negligence in sports injuries. As the traditional defense referring to risk assumption lost its independence in the modern Anglo-American case law practice, express risk assumption and secondary implied risk assumption also have faded out in sports area. However, in some cases, typically as Knight v. Jewett, primary implied risk assumption has continued to be applied in this area, and developed some derivative theory, including inherent risk.