On 2021, Wang Yahui (trainee lawyer) of Henan Changhao Law Firm gave a presentation on the application of the principles of risk-taking and fair liability in judicial practice in the Civil Code.

This content takes the case as the cut-in point, introduced the fair responsibility principle and the risk-taking principle application rule in the judicial practice, this paper makes a comparison between the judicial thinking and rules of similar cases before and after the implementation of the Civil Code and the amendment of relevant laws.

（一） The principle of self-acceptance of risk

Article One thousand, one hundred and seventy-six of the Civil Code provides that: "where a person voluntarily participates in a cultural or sports activity involving a certain risk, and the conduct of other participants is harmed, the victim may not request the other participants to bear the liability for tort, except where the other participants have wilfully or grossly negligent in causing the harm, the liability of the organizer of the activity shall be governed by articles one thousand, one hundred and ninety-eight to one thousand, two hundred and one of this law. "

The application of the risk-taking principle is subject to:

1. The act is inherently risky and the risk is objective from the beginning, with uncertainty as to whether or not it occurs

2, the subject of the eligibility, the actor must have the corresponding civil capacity, and in accordance with the social perspective of ordinary people can foresee the existence of risk, and can make rational analysis and effective choice

3. The actor is subjectively aware and voluntary, and the actor is aware of the risks involved in the act and still voluntarily participates in it, including through oral commitment, written agreement and acquiescence in actual action

4. The performance of an act is lawful and beneficial, and the perpetrator does it not on the basis of moral constraints or legal obligations, but in order to obtain some benefit, such as physical health, physical and mental pleasure, satisfaction, sense of honor, but not contrary to public order and good customs.

The scope of application of the principle of risk-taking: the Civil Code strictly limits the application of the principle of risk-taking, and stipulates that it is applicable to certain dangerous cultural and sports activities, can include professional sports, non-professional Sports, self-help travel and other outdoor adventure activities.

（二）The principle of equitable responsibility

Principle of fair liability: refers to the parties for the occurrence of damage without fault, and the law does not apply no fault, based on the concept of fairness, by the parties to share the loss. Article twenty-four of the Tort Liability Law (which has lapsed) stipulates: "If neither the victim nor the perpetrator is at fault for the occurrence of the damage, the loss may be shared by both parties according to the actual circumstances. "

The legal situations in which the principle of fairness applies are: 1. Damage is caused by necessity, and the danger is caused by natural causes; And the measures taken by the person avoiding danger are not improper 2, the person doing the right thing for a good cause suffers damage 3, the person in full civil capacity unconsciously or out of Control Causes Damage 4, the third person causes damage to the service provider 5, the throwing object from height causes damage to the person

（三）The handling of similar cases before and after the implementation of the Civil Code

Prior to the enactment of the Civil Code,

If a similar case occurs, first of all, judge whether the tort law is applicable, whether it is a special tort, if so, apply no-fault or fault presumption, if not, apply the general tort, and second, judge whether the tortfeasor is at fault, if neither party is at fault (no intentional or gross negligence) , the principle of fair liability (majority) or the principle of risk-taking (minority) will be applied

After the implementation of the Civil Code,

If a similar case occurs, first of all, judge whether the tort law is applicable, whether it is a special tort, if so, apply no-fault or fault presumption, if not, apply the general tort, and second, judge whether the TORTFEASOR is at fault, if neither party is at fault (without intent or gross negligence) , the principle of risk-taking shall be directly applied