摘要： 自甘冒险规则虽然整体上得到了裁判者的普遍认同,但学界与实务界对其表达的“参与者仅对故意或重大过失行为承担责任”的价值判断依旧存有质疑。受害人自甘冒险并非免责事由,自甘冒险规则实质上是过错归责原则在文体自甘冒险领域的具体化。文体自甘冒险与其他自甘冒险在参与者过错的规范性评价上存在显著差异,前者不仅弱化了参与者的注意义务,而且也否定了自甘冒险行为本身应被评价为受害人过失的常识性观念。自甘冒险规则虽然在立法技术层面上并无问题,但“重大过失标准”的严格适用可能会导致参与者间的利益失衡。就我国的立法传统、社会现实以及当事人利益协调等因素而言,在受害人独自承担损害存在明显困难时,应在过错归责体系之外,通过公平责任的谦抑性适用要求无重大过失的参与者分担受害人的损失。

关键词: 文体自甘冒险, 注意义务, 立法技术, 价值判断, 公平责任

Abstract: Although the rule of assumption of risk has been generally recognized by judges, the academic circles and practical field still have doubts about the value judgment of “participants only bear responsibility for intentional or gross negligence”.The self-risk-taking activity is not an exemption excuse, and the rule of assumption of risk is essentially the embodiment of the fault liability principle in the field of self-risk-taking activities in sports and entertainment activities.There is a significant difference in the normative evaluation of participants' fault between self-risk-taking activities in sports and entertainment activities and other self-risk-taking activities.The former not only weakens the participants' duty of care, but also negates the common sense idea that self-risk-taking itself should be evaluated as the victim's fault.Although there is no problem in the legislative technique perspective of the rule of assumption of risk, the strict application of the “gross negligence standard” may lead to the imbalance of interests among participants.In terms of China's legislative tradition, social reality and the coordination of the interests of the parties, when it is obviously difficult for the victim to bear the damage alone, the equitable liability rule should be applied in addition to the fault liability system, requiring participants without gross negligence to share the loss of the victim.

Key words: Self-Risk-Taking Activities in Sports and Entertainment Activities, Duty of Care, Legislation Technique, Value Judgment, Equitable Liability