| 摘要: |
| 我国《民法典》将自甘风险规则纳入侵权责任编，为体育活动的开展提供了法律指南，是立法对司法的有力回应。自甘风险规则的确立虽在实证法角度有了定论，但其背后蕴含的法教义学理论与具体适用方面仍有讨论之余地。鉴于此，应对“一定风险”“其他参加者”以及与自甘风险相关的一些概念作出合理解释。应通过实质判断，明确无民事行为能力人与限制民事行为能力人参与体育活动自愿的意思表示，实现民事主体行为与其年龄、智力与精神健康状况相统一。与此同时，明晰比较法研究中的“接触式体育运动”与“非接触式体育运动”，为区分我国不同体育活动的责任和义务提供理论证成。根据新修改的《体育法》中体育保险的相关规定，建议为不同的主体提供差异化的体育保险服务，再审慎思考人工智能背景下AI机器人参与体育活动能否适用自甘风险规则，不断丰富该规则的理论脉络与时代架构，方可逐渐形成体育活动下自甘风险规则的体系化认知。 |
| 关键词: 自甘风险 体育活动 体育保险 责任承担 合理注意义务 人工智能 |
| DOI： |
| 投稿时间：2022-12-19 |
| 基金项目: |
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| Study on Assumption of Risk Doctrine and thought on the Development of Sports Activities |
| ZHANG Xuancheng |
| (Law School, Shanxi University, Taiyuan 030006 , China) |
| Abstract: |
| China’s Civil Code incorporates the assumption of risk doctrine into the Tort Liability part, which provides a legal guide for the development of sports activities and is a strong response of legislation to justice. Although the establishment of the assumption of risk doctrine has a conclusion from the perspective of empirical law, there is still room for discussion on the legal dogmatic theory and specific application behind it. In view of this, the interpretation of “certain risks”, “other participants” and some concepts related to the assumption of risk doctrine should be reasonably explained. Through substantive judgment, it is necessary to clarify the voluntary intention of a person having no capacity for civil conduct and a person with limited capacity for civil conduct to participate in sports activities, so as to realize the unification of civil subject behavior with their age, intelligence and mental health status. At the same time, it clarifies the “contact sports” and “non-contact sports” in comparative law research, and provides theoretical evidence for distinguishing the responsibilities and obligations of different sports activities in China. According to the relevant provisions of sports insurance in the newly revised Sports Law, it is suggested to provide differentiated sports insurance services for different subjects, and then carefully consider whether AI robots can apply the assumption of risk doctrine to participate in sports activities under the background of artificial intelligence, and constantly enrich the theoretical context and era framework of the rule, so as to gradually form a systematic understanding of the assumption of risk doctrine under sports activities. |
| Key words: assumption of risk doctrine sports activities sports insurance bearing of responsibility reasonable duty of care artificial intelligence |
