民法典自甘冒险制度评析与理解适用

Analysis and Understanding of the Voluntary Risk System in Civil Code

《民法典·侵权责任编》(二审稿)确立了"自甘冒险"规则,《民法典》颁布时,将自甘冒险规则作为一项单独的法定免责事由。自甘冒险规则的确立是在权益保障和行为自由之间作出的合理平衡,一方面对自甘冒险者的合法权益进行维护和补偿;另一方面,引导人们慎重参与具有一定风险的文体活动,达到减少损害、预防风险的目的。但该规则的适用中,仍需结合立法目的明确什么是"具有一定风险的文化活动",同时,因其对行为人来说,要么不承担责任,要么承担全部责任,与基于过错而确定责任承担的规则不符。且从体系上讲,即使适用自甘冒险规则也不能排除适用过失相抵规则。

The second edition of the Civil Code establishes the rule of victim’s voluntary assumption of risk. The rule of victim’s voluntary assumption of risk was taken as a separate legal exemption. The establishment of the voluntary risk-taking rule is a reasonable balance between the protection of rights and interests and the freedom of behavior. On the one hand, we should protect and compensate the legitimate rights and interests of those who are willing to take risks;on the other hand, we should guide people to carefully participate in recreational and sports activities with certain risks, so as to reduce damage and prevent risks. However, in the application of the rules, it is still necessary to clarify what "cultural activities with certain risks"in combination with the legislative purpose is. At the same time, it is not consistent with the rule of determining the responsibility based on fault because it is not responsible for the actor or bear all the responsibility. And from the system point of view, even if the self willing risk rule is applied, it can not exclude the application of the fault offset rule.