The Application of self-risk Rule of Civil Code in Sports Tort disputes
Source of information: people's court report
The voluntary risk rule refers to the rule that the victim voluntarily bears the possible damage and puts himself in a dangerous environment or situation, and the actor who causes the damage is not responsible. In the compilation of tort liability, Article 1176 of the Civil Code legalizes the risk rule for the first time, and defines the scope of application as "sports and sports activities with certain risks", which is mainly applicable to sports tort disputes and other cases. The author attempts to systematically sort out the difficult problems of legal application of such disputes in trial practice by analyzing the adjudication documents of sports tort disputes involving voluntary risk rules tried by courts all over the country after the implementation of the Civil Code. and put forward some suggestions on the trial ideas and adjudication rules.
I. Perspective of related problems in judicial practice after the implementation of risk-free rules in the Civil Code
As the formal implementation of the Civil Code has been only more than a year, the number of judicial practice cases involving voluntary risk rules is still relatively limited. Through the full-text search of referee documents for key words such as "voluntary risk, sports, sports, civil code".2021In 2000, courts across the country concluded sports tort disputes involving the rules of voluntary risk in the Civil Code.65Pieces. Judging from the current cases, the problems such as the disunity of the identification standard, the scope of application, the principle of imputation and the proportion of liability before the implementation of the voluntary risk rule have been alleviated to a certain extent after the implementation of the Civil Code. For example, in the identification standard, it is clear that voluntary participation is caused by the behavior of other participants, and the situation of intentional or gross negligence is excluded; in the scope of application, it is clear that it is a cultural and sports activity with certain risks. In the principle of imputation, the principle of fairness, the principle of fault or the principle of offset of negligence are no longer mixed to avoid the generalization of tort liability, but the new system brings new problems and challenges.
1.The denotation and connotation of "cultural and sports activities" is not clear enough. In a narrow sense, it refers to cultural sports activities, which is limited to the scope of sports activities; in a broad sense, it includes not only all kinds of sports activities, but also all kinds of recreational activities for the purpose of fitness, leisure and entertainment. At the same time, it is still controversial whether this sports activity must belong to multi-human activities with other participants, and whether single-person activities such as rock climbing, "Flying Fox Tower" and gliding belong to the sports and sports activities in the rules of voluntary risk.
2.The identification standard of "having certain risks" is not clear enough. In terms of severity, the degree of having a certain risk is obviously lower than that of "having danger", but how to effectively distinguish a certain risk from a low risk? in practice, it is controversial whether to distinguish and define the risk of sports activities according to the nature of sports, that is, "inherent risk", or to judge the degree of risk according to the specific conditions in sports.
3.The definition of "voluntary participation" is not very clear. "voluntary participation" generally means that one is willing to participate without being forced by others, and is to engage in an activity according to one's own subjective will. However, in some cases, such as personal injury caused by participating in martial arts as a result of the provocative behavior of the other party, it belongs to the category of passive voluntary or voluntary participation; whether participating in the training camp means voluntary training confrontation with the trespassers in the same group? there are still different opinions.
4.It is difficult to distinguish "intentional or gross negligence". Because of the complexity and creativity of sports activities, especially competitive sports, the flexible use of techniques and tactics, and the unpredictability of competition results, it is also difficult to restore the injury process at the sports technical and theoretical level, to reasonably judge the degree of connection between fouls and sports activities, and to objectively define the intentional or gross negligence of the actor.
5.It is difficult to determine the degree of responsibility of event organizers. Due to the differences among different regions, communities and schools, it is necessary to fully consider and reasonably limit the security care obligations of different management subjects, and reasonably distribute the matching responsibility for the construction of sports facilities standards, which puts forward higher requirements for the exercise of judges' discretion, whether it can take into account fairness and rationality.
Second, a probe into the thinking of the trial of the "five elements" applicable to the risk rule of self-willingness.
In view of the above problems, through the analysis of Article 1176 of the Civil Code, it can be known that the application of the risk rule needs to meet five elements: first, the victim voluntarily participates in cultural and sports activities with certain risks; third, the victim must have the ability to understand or foresee the risk; fourth, the victim is harmed by the behavior of other participants. Fifth, other participants did not have intentional or gross negligence on the occurrence of the damage. Further analysis of the key words in the above five elements can be divided into "cultural and sports activities", "having certain risks", "voluntary participation", "other participants" and "intentional or gross negligence".5A key word.
Element 1: the understanding and application of "stylistic activities"-- three-in-one interaction
It is inappropriate to understand the term "stylistic activities" in a narrow and broad sense. Since the word "style" is limited before "activity", rather than "sports", from the understanding of legislative language, the author thinks that it can include cultural activities, sports activities and activities with the dual attributes of culture and sports. That is, "three-body unity". Cultural activities refer to mass cultural and recreational activities aimed at meeting the needs of spiritual life, including art performances, art competitions, park and temple fairs, electronic entertainment, playground projects, outdoor Reality Show and other activities. According to the provisions of the Sports Law, sports activities generally include competitive sports activities and mass sports activities for the purpose of fitness and leisure, which can be divided into competitive sports, social sports and school sports. In addition, some informal sports or training, such as shooting practice, shooting practice, etc., can also be understood as sports activities. At the same time, with the development of the integration of culture and sports, there will be more activities with both cultural and sports attributes, such as knee wrestling, arm wrestling, shuttlecock kicking and other folk games, which not only have the nature of folk culture, but also have the nature of competitive competitions; and for example, sports events with cultural attributes, for contestants, it is to participate in sports activities, while for spectators, it is to participate in cultural activities. At the same time, it should be noted that sports and sports activities must be interactive, although they may not be in direct physical contact, but they should be attended by more than two people, and the harm suffered by the participants is not due to their own inattention, or the organizer's improper organization failed to fulfill its safety and security obligations, but by other participants in the event. For example, when weightlifting is injured by barbell, gymnastics error injury, track and field sprain, single slip fall injury and so on, because it belongs to individual activities, the risk rule should not be applied.
Element 2: the understanding and application of "having certain risks"-- the combination of time and space human elements
From the perspective of judicial practice, the concept of "risk" in the risk rule mainly refers to the "inherent risk" of sports and sports activities, that is, the danger that can not be avoided within the normal scope of sports and sports activities, which can be divided into explicit and recessive. The dominant risk is shown in the risks that ordinary people can foresee, such as in fast car racing, highly confrontational boxing, Sanda and other high-risk sports, the risk rule should be applied. Hidden risks show the potential risks that may exist in a particular sports situation, which can be assumed by using the three elements of time, space and people. "time" means that there is a strong physical collision or increased antagonism at a certain time and situation; "emptiness" means that the risk occurs within certain physical boundaries, for example, in the playground of ball games; "people" is the damage caused by the behavior of other participants, and the three elements are indispensable and happen at the same time or exist at the same time, resulting in the occurrence of hidden risks. For example, in volleyball, badminton, tennis, table tennis and other competitions, when hitting the ball, it happens to hit other participants' vital parts of the body and cause them to be injured, then the self-risk rule can be applied. At the same time, it is worth noting that in some rehearsal, training, teaching and other activities, such as martial arts training, technical and tactical simulation, because this kind of activities are generally risk controllable, but the risk still exists. If the time, space and human factors cause harm at the same time, the risk rule can also be applied.
Element 3: the understanding and application of "voluntary participation"-- the unity of cognition and behavior
From the semantic understanding, "voluntary participation" does not go against the will of the participants and participates in activities without coercion, coercion or deception. if the forms of voluntary expression are further subdivided, the author believes that it can include three aspects: voluntary appearance, subjective voluntary and cognitive voluntary, so as to achieve the unity of knowledge and practice. Voluntary appearance refers to a voluntary form of appearance, which may include oral consent in the form of oral consent to participate in a sports activity, written consent, such as the signing of a written consent, and tacit consent not to object to participation in a sports activity. For example, a willingness to participate in a provocative act may be regarded as one of the cases of implied consent. Subjective voluntariness refers to voluntary subjective forms of expression, including not being directly forced, indirectly coerced or deceived. Indirect coercion means that participants are required to participate in an activity involuntarily for some potential reason, while deception means that participants are required to participate in an activity involuntarily due to the misunderstanding of the risks of the activity caused by other participants. In judicial practice, participants have the burden of proof for non-subjective and voluntary situations. Cognitive voluntary means that participants must have a certain cognitive risk ability to express their intention to participate voluntarily when they are fully aware of the danger of sports and sports activities. whether or not to have this ability needs to take into account the age, spirit and occupation of the participants.
Element 4: the understanding and application of "other participants"-substantive participation in activities
"other participants" literally refers to people who take part in sports and sports activities who cause harm to others, but other participants also have a narrow and broad understanding. In a narrow sense, it refers to the direct participants in the activity, that is, the people who directly participate in the activity, such as the players on the field, the racing driver in the car race, the boxer in the boxing match and so on. In a broad sense, it refers to the people who may cause harm to the participants in the course of the activity, such as referees on the football field, service staff on the side of the field, caddies, spectators and so on. The author believes that, in a broad sense, the injuries caused by other participants who are not involved in the activities, except those caused by the referees on the field, are not inherent risks of the sport itself, but are unforeseeable, because the organizers have failed to fulfill their safety obligations, so it is not appropriate to apply the voluntary risk rule. Therefore, on the basis of substantive participation in activities, "other participants" should be understood as participants who directly participate in the activities in the venue, as well as indirect participants related to the content of the activities, such as referees, coaches, alternates and so on.
Element 5: the understanding and application of "intentional or gross negligence"-- normalization of purpose and result
The voluntary risk rule applies only to the no-fault behavior or general negligence of other participants. However, the particularity of sports activities, especially competitive sports, is that its core meaning is to improve the level of sports skills, thus resulting in sports skill norms, in which technical fouls, tactical fouls or moral fouls may occur. This usually does not have the purpose of hurting the opponent, but it may cause the result of hurting the opponent, and there may be a deviation between the behavior consciousness and the result consciousness. It is necessary to distinguish different situations and pay attention to "normalization of purpose and result". Both the consciousness of behavior and the consciousness of result are intentional, that is, there are both intentional fouls, hope for the occurrence of injury or laissez-faire injury, which is obviously intentional, such as the act of getting out of control and biting each other's ear in a boxing match and deliberately kicking an opponent based on vengeance in a football match. For the case that the behavior consciousness is intentional but the result consciousness is negligent, that is, although the actor intentionally violates the rules of the game, his purpose is not to hurt the opponent and does not want or allow the injury result to happen. because of its clear subjective understanding of intentional fouls, there are still overconfident faults that can be avoided in the consequences of gullible injury, which should belong to gross negligence and apply the principle of fault liability and so on. For the negligent injury caused by conscious negligence, because the actor is not aware of the existence of fouls, the "careless mistake" is obviously a general negligence, and the voluntary risk rule should be applied. For the actor, there is no negligent injury caused by fouls, such as tackling the ball to the wrong person in the football match, knocking over the person and injuring the person, the risk rule is also applicable. At the same time, it should be noted that even if the victim signs different forms of express voluntary risk agreements such as the letter of responsibility for Voluntary participation in Sports, it is obvious that the actor cannot be naturally exempted from liability for infringement of others' rights to life and health out of intentional or gross negligence.
III. Two issues that need to be paid attention to in the application of voluntary risk rules.
1.On the determination of the responsibility of the organizers of the event. Because of the different nature of different sports and sports activities, the standard of determining whether the general event organizers have fulfilled the necessary security obligations is also different. Some sports and sports activities require the organizers to inform participants of the risks in detail; some activities do not require the organizers to inform the participants of the risks in accordance with daily experience, as the inherent risks of these activities are known to the general public and are more familiar to the participants. For example, participating in a marathon, the risk of sunburn, knee injury, collision and other sports injuries during normal running does not need to be specifically informed by the organizers. However, accidental damage other than the inherent risks, such as abnormal weather changes, should be clearly communicated to participants. Therefore, in specific cases, it is necessary to treat differently according to the different nature of sports and sports activities, and comprehensively consider whether the organizers have taken adequate and appropriate safety protection measures, designed plans to deal with unexpected situations, and whether reasonable relief measures have been taken in time after the occurrence of damage, in order to accurately judge whether the organizers of the activities have fulfilled their security obligations. With regard to the "reasonable" or "equivalent" security obligations that schools or other educational institutions should undertake in school sports activities, it should be analyzed according to the factors such as teachers' teaching, differences between regions and schools, construction of sports venues and facilities, specific environment and sports situation, etc.
2.On the question that the analogy applies to the live audience. As mentioned earlier, participants and other participants should substantially participate in relevant sports and sports activities, but if we analyze from the perspective of athletes to the perspective of spectators, regarding the audience as the main body of sports activities, the viewer of a sports activity is actually more likely to participate in a cultural activity of watching sports, then there is a risk that the spectator can foresee that the athlete may cause injury to the audience. For example, the audience outside the field was injured by the football flying out of the football field and so on. The author believes that this situation is in line with the inherent logic of the voluntary risk rule, and this rule can be applied. However, in this case, other spectators can not be regarded as other participants to apply the rule, such as the injury caused by conflicts and fights between the audience, of course, does not apply the voluntary risk rule.
(the writer is a postdoctoral researcher of East China University of political Science and Law and a senior judge of Shanghai higher people's Court.)
Shanghai Shixin Law Firm
