论竞技体育中自甘风险规则的适用及其限制

On the Application and Limitation of the Self-willing Risk Rule in Competitive Sports

我国《民法典》中首次正式确立了自甘风险规则,但并不是所有发生在竞技体育活动过程中的风险都可以适用自甘风险规则进行抗辩。自甘风险规则的适用具有较为严格的限制,只能适用于“自愿”参加文体活动且因该活动的“固有风险”而遭到伤害的案件,而排除适用自甘风险规则的条件是加害人对损害的发生具有故意或重大过失。一般过失与重大过失的区分取决于行为人对规则的违反程度以及其注意义务的高低。如果加害人的行为是出于泄愤、挑衅以及其他故意的目的,或者较大程度地违反规则导致行为人受伤的,则不能免除其侵权责任甚至是刑事责任,但要注意刑法介入竞技体育活动的界限,需要以行为人严重违反体育规则、对生命健康以及身体安全法益造成重大损害且通过行业自治及其他手段仍然无法得到有效救济为前提。

China’s Civil Code formally established the self-willing risk rule for the first time,but not all risks that occur in the process of competitive sports can be defended by applying the self-willing risk rule.The application of the self-willing risk rule has relatively strict restrictions;it can only be applied to cases where participation in a cultural and sports activity is“voluntary,”and harm is caused by the“inherent risk”of the activity.The precludence of applying the self-willing risk rule is that the perpetrator was intentionally or grossly negligent in the occurrence of the damage.The distinction between general negligence and gross negligence depends on the degree of violation of the rule by the perpetrator and the level of his duty of care.If the perpetrator’s behavior is for the purpose of venting anger,provocation,and other intentions,or if the perpetrator is injured to a large extent by violating the rules,he cannot be exempted from tort liability or even criminal liability.However,it is important to note the boundary of criminal law involvement in competitive sports activities,it needs to be premised that the perpetrator seriously violates the rules of sports,causes significant damage to life,health and physical safety,and still cannot obtain effective remedies through industry autonomy and other means.