Mitigation of the Absolute Application of"The Assumption of the Risk Doctrine":Taking Basketball as an Example
This study uses basketball as a case study to illustrate the issue of"self-willing risk"in mitigation.The research argues that the inability to accurately determine the subjective psychological state of the perpetrator is the main reason for the absolute application of self-willing risk in current judicial practice.In order to ensure appropriate legal application,it is necessary to assess the subjective mentality of the actor using objective criteria and corresponding legal presumption rules.In China,"Basketball Rules"has the binding force on the basketball game and can be considered as a general consensus among participants,thus serving as an objective standard for presuming the subjective mentality of the actor.The damage caused by the invading foul,two-way fouls and the technical foul in the Basketball Rules belongs to the inherent risk of basketball.Even if these fouls are committed intentionally,they do not constitute fault under tort law because there is no intention to cause harm.However,fouls defined as violations of sportsmanship and disqualification in Basketball Rules breach fundamental moral standards in sports;therefore,it should be presumed that perpetrators have intent or gross negligence towards causing harm.However,fouls defined as violations of sportsmanship and disqualification in Basketball Rules breach fundamental moral standards in sports;therefore,it should be presumed that perpetrators have intent or gross negligence towards causing harm.This presumption shifts the burden of proof onto them;if they cannot prove their lack of subjective fault,they will bear consequences for failure to provide evidence.Regarding protection of actors'interests,their duty-of-care standard should be determined accordingly.
self-willing riskbasketballacts of infringementfaultfoul
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