体育伤害案件适用法律的误区及补正——“林州少年篮球伤害案”判决评析

Misunderstanding and Remedy of Legal Application in Sports Injury:Based on the Case of Lingzhou Teenagers Basketball Injury

"林州少年篮球伤害案"判决认为,体育运动的参与者应对体育伤害风险负注意义务,由此构成《民法通则》第130条规定的共同危险行为。该判决未能认识到体育侵权的特殊性,从而在法律适用上走入误区。我国法院也有采纳自甘风险或公平责任裁判同类案件的判例,但亦陷入形式正义与实质正义冲突的困境。在《侵权责任法》实施以后,该法第24条规定的损失分担规则可以补正前述条款之不足,并有利于缓解矛盾、促进和谐。

In the case of Lingzhou Teenagers Basketball Injury, the players were held liable for the risk incurred in sports, based on the rules of joint dangerous act in Article 132 of General Civil Law. However, the sentence ignored the specialty in sport tort, leading to the mistake in legal application. Other courts try in other ways, such as the rules of assumption of risk or equitable liability, but they also result in the conflict between formalism and Substantive justice. After the enforcement of Tort Law, the rule of loss sharing in Article 24 will remedy the disadvantage of the above rules and may cause the function of relieving conflict and promoting the harmony.