[Q&A Civil Code · Statement by Case]
Key words
Taking risks, responsibility for fault, responsibility for fairness
Overview
Sports activities have become increasingly popular with the upsurge of national fitness. In my spare time, I can meet three or five ball friends and compete with each other, which not only enriches daily life, exercises the body, but also enhances feelings. However, accidents will inevitably occur in sports, such as injuries due to hitting, confrontation, or collision. At this time, how to assume responsibility has attracted much attention.
In some previous cases, when the defendant was not at fault, although the court would not hold that he was liable for tort, in order to settle the matter, it would judge the defendant to give the plaintiff a certain amount of compensation in accordance with the principle of fairness to comfort the injured. For example, at the end of 2019, in the second instance of Zeng Mouling and Li Moumei’s health rights and physical rights disputes, the court in a certain place in Sichuan believed that the two parties freely combined badminton doubles practice activities, and that the two parties were not at fault, and determined based on the principle of fairness. Li Momei gave 40% compensation to Zeng Moulin’s personal injury, totaling more than 25,000 yuan.
Now, with the implementation of the Civil Code, the principle of self-willed risk will help to end the problem of different judgement standards in local courts, so that participants in sports activities will be relieved of worries and avoid “who is injured is justified”.
Case
On the morning of April 28, 2020, the plaintiff, the defendant and four people outside the case played a badminton match. During the game, the badminton hit by the plaintiff and the defendant hit the right eye. After the incident, the plaintiff was accompanied by the defendant to the hospital. On July 6, the hospital issued a diagnosis certificate showing that the plaintiff’s right eye had atrophy before the operation, and the best corrected visual acuity in the right eye after the operation was 0.05. The plaintiff will be told to the court on the grounds that his physical rights have been violated.
On January 4, 2021, the Beijing Chaoyang Court conducted a public trial of this case and pronounced a verdict in court. It held that the plaintiff knew the risks of badminton and still participated voluntarily and put himself in potential danger. It should be deemed as self-willed to take risks. The defendant did not have intentional or gross negligence, so in accordance with the provisions of the Civil Code on self-contained risk, the judgment rejected all the plaintiff’s claims.
Law
Voluntary participation in cultural and sports activities with a certain risk, and the victim shall not request other participants to bear tort liability if the actions of other participants are harmed; however, other participants have intentional or gross negligence in the damage.(Article 1176)
Experts say
Guo Tiantian (Judge of the People’s Court of Chaoyang District, Beijing)
The principle of self-willing risk helps the healthy and orderly development of cultural and sports activities
This case is the first civil case in which the Chaoyang District Court applied the “self-willed risk” clause after the implementation of the Civil Code.
The plaintiff claimed that the defendant’s violation of his body was a general tort applicable to general fault liability. In this case, the defendant committed the injurious act, the plaintiff suffered bodily harm, and there is a causal relationship between the two. Therefore, the key to determining whether the defendant constitutes an infringement lies in whether the defendant is at fault.
The defendant claimed that the plaintiff constituted a self-willed risk and that the defendant should not bear tort liability; the plaintiff claimed that the defendant had gross negligence, even if there was no gross negligence, fair liability sharing should be applied.
Badminton is a typical antagonistic sport. In addition to the risks of sprains and strains, the more prominent risk is that the contestants are easily hit by badminton. As a fan of badminton for many years, the plaintiff should be aware of and foresee the abilities of himself and other participants and the dangers of this sport, but he still voluntarily participates in the competition and shall be recognized as the No. 117 of the Civil Code Self-willed risk behaviors stipulated in Article 16. In this case, only if the defendant has intentional or gross negligence, he shall be liable for tort damages, otherwise he shall not be liable.
The defendant did not have too much time to consider and judge when returning the ball, and the highly tense atmosphere of the game would cause the participants to focus on sports. It is difficult to require the participants to carefully consider each behavior. The duty of care is limited to sports ethics and rules that are more relaxed than the general duty of care. The defendant’s smashing offense was a normal technical action of this type of sport, and there was no obvious violation of the rules of the game, so it should not be deemed to be grossly negligent.
Fair liability means that both parties have no fault for the occurrence of the damage and the law does not provide for the application of no fault. Based on the concept of fairness, both parties share the loss, but the scope of application should be strictly limited. This case does not have the conditions for applying fair liability in accordance with Article 24 of the Tort Liability Law and Article 1186 of the Civil Code. On the contrary, how to determine the responsibilities of the circumstances involved in the case has been determined by the Article 117 of the Civil Code. Article 16 clearly stipulates that the case does not have the conditions for the application of fair liability. The “Several Provisions of the Supreme People’s Court on the Application of the Time Validity of the Civil Code of the People’s Republic of China”, which came into effect on January 1, 2021, clarify that before the implementation of the Civil Code, victims voluntarily participate in cultural and sports activities with certain risks and are damaged by civil activities. In dispute cases, the provisions of Article 176 of the Civil Code shall apply.
In the end, the Chaoyang District Court rejected all claims of the plaintiff in the first instance judgment.
Adventurous risk is a new rule formally established in the Tort Liability of the Civil Code. The Civil Code strictly limits its application to certain dangerous cultural and sports activities, and it only applies to damage caused by the actions of participants, and cannot be applied at the same time as the provision of fair sharing of losses. The establishment of this clause has positive significance for the unification of judicial judgment standards and the healthy and orderly development of cultural and sports activities.
Please scan the QR code to watch Guangming.com “Guangming Cloud Statement”
(Interviewed by Guangming Daily reporter Jin Hao)
“Guangming Daily” (Edition 04, January 08, 2021)
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责编：姚坤森 ]
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