体育侵权中自甘风险规则的规范解释——以《中华人民共和国民法典》第1176条为中心

Normative Interpretation of the Rule of Assumption of Risk in Sports Torts—Centered on Article 1176 of the Civil Code of the People s Republic of China

我国《民法典》中自甘风险规则的确立,是对学理认识和司法实践的制度因应。前民法典时代,自甘风险规则的付之阙如,不仅导致适用范围不统一、责任承担存在分殊,还导致减免责规范关系不清,并引发了司法困境。基于此,要发挥自甘风险规则的制度功能,需要对其主客观要件与限定性要件加以明确,厘清《民法典》第1176条与其他条文的衔接关联。自甘风险中的“自甘”是指“自愿参加”,包括明示自愿和默示自愿,而“风险”是指特定且适当的固有风险。在体育侵权中,“文体活动”应限缩为正常开展并具有相应规则的体育活动,观众仅承受风险却并未制造风险,不应对其适用自甘风险。不能仅通过是否违反运动规则来判断是否尽到合理注意义务,还应根据加害人的主观状态以及客观的外在情况,来综合判断行为人是否具有故意或者重大过失。应从事前告知义务、事中保障义务和事后补救义务三个方面,来对活动组织者的责任认定加以限制。自甘风险规则有独立存在的价值,不宜将其与过失相抵规则混为一谈,适用自甘风险之后将不再具有适用公平责任的正当性。

The establishment of the risk of assumption of risk in China s Civil Code is an institutional response to doctrinal understanding and judicial practice.In the former Civil Code era,the lack of the risk of assumption of risk not only led to the lack of uniformity in the scope of application and the disparity in liability,but also led to the unclear relationship between the norms of liability reduction and exemption,and caused judicial difficulties.For this reason,in order to bring into play the institutional function of assumption of risk,it is necessary to clarify its subjective and objective elements as well as its qualifying elements,and to clarify the connection between Article 1176 of the Civil Code and other articles.The term“assumption of risk”in the context of risk means“voluntary participation”,including both express and implied voluntariness,while“risk”refers to a specific and appropriate inherent risk.In sports torts,“cultural and sporting activity”should be limited to sporting activities that are normally conducted and have appropriate rules,and spectators should not be subjected to risk without creating it.The duty of reasonable care should not be judged solely on the basis of a breach of the rules of sport,but also on the basis of the subjective state of the perpetrator and the objective external circumstances to determine whether the perpetrator was intentional or grossly negligent.The liability of the organiser of the event should be limited by the duty to inform beforehand,the duty to safeguard during the event and the duty to remedy afterwards.It is not advisable to confuse it with the rule of negligence,as the application of assumption of risk would no longer justify the application of equitable liability.