自甘风险论文：论自甘风险
夏威夷果多少钱一斤
【中文摘要】自甘风险作为一个古老的抗辩事由,在18、19世纪西方工业化时期蓬勃发展,成为雇主免除其工伤事故责任的抗辩事由。随着社会经济政策的调整以及法律观念的变迁,该规则在雇佣领域遭到摒弃的同时,却在侵权法其他领域得到多方面的适用,法院在判决的过程中也赋予了它的含义。虽然在比较过失原则的冲击下引发了该规则各种类型存废的争议,但它在某些领域仍具有不可替代性,并在实践中得到证明。我国对此并无相关法律,但在实务中却时有法官援引该规则进行裁判的情况发生。我国是一个成文法国家,这样的法官造法是危险的,但由此也说明了移植该制度的现实性与必要性。由于我国的立法空白,以及理论研究的缺少,在实践中处理相关问题时经常出现概念认识不清、性质定位模糊的情况。就以自甘风险得到普遍适用的体育侵权领域为例,这类案件在我国经常作为受害人同意来处理,模糊了自甘风险与受害人同意之间的界限。这不仅不利于责任的合理分配,也不利于当事人合法权益的维护。本文将较为全面的分析自甘风险的基本理论,对其适用范围进行清楚的确定。在借鉴国外成熟经验和先进制度的基础上结合我国的实际,作出制度设计。论文主体部分共分三章,内容简介如下：第一章首先是从发展史、构成要件及类型几个方面对自甘风险进行概述,并对其定义进行分析界定。以便能在发展史的沉浮中观其前景,在要件的构成中究其本质,在类型的区分中抠公章
取其精华。本章梳理自甘风险的基本内容,也意在使读者对自甘风险有一个较为全面的了解,为后文的阐述做铺垫。第二章重点对自甘风险行为的主体、客体和意思表示三个要素进行分析。主要通过相关案例及立法,对自甘风险受限的适用主体以及具有适用倾向性的领域进行具体分析,并在第一章类型概述的基础上进一步解读自甘风险的意思表示。对自甘风险适用范围的界定,一方面是在肯定自甘风险规则适用的可操作性和存在的必要性,另一方面也是对自甘风险规则滥用的否定。第三章是整篇论文的落脚点。该章在借鉴他国立法和实践经验的基础上,肯定自甘风险规则的存在价值和现实意义,论证了我国构建自甘风险制度的可行性,并为该制度的构建提出具体的立法建议。
麒麟花怎么养
多少次挥汗如雨【英文摘要】As an ancient defence, Assumption of Risk was growing vigorously in eighteenths and nineteenths centuries during the Industrial Revolution, which became the defence for the employers to exempt from liability in industrial accidents. With the adjustment of social and economic policies as well as the change of concepts in law, on one hand, the rules was abandoned in the field of employment; on the other hand, it has been adopted effectively in other areas of Torts from veral aspects. In addition, there are more meanings added to it during the process of the court decision. Although there is
网上商店a dispute regarding the abolition issue of the rule (when it is in different terms), with the considerable impact of the Comparative Negligence doctrine, it is still irreplaceable in certain areas, and has been proven in practice. China does not have any related law about Assumption of Risk, whilst, in practice, the judges often make the decisions by referring the rule. As a statute country, it is harmful to have the types of judge-made law, which in turn, showing the reality and necessity of the immigration of the rule (Assumption of Risk). Due to the gap of legislation and the lack of academic rearch, problems regarding the unclear understanding of the concepts and the ambiguous positioning of the situations’ nature occur frequently, when people are dealing with related issues in real life. Take the sports torts as an example, which is the field that Assumption of Risk has been widely ud, this type of cas are usually treated as Victim Connt, which blurs the boundary between Assumption of Risk and Victim Connt. Under such circumstances, it is not only against the rational distribution of responsibility, but also detrimental to the legal rights protection of the parties.This paper will provide a relatively comprehensive analysis of the basic theory of Assumption of Risk, following this, there wil
l be a clear identification about its scope of application. Lastly, a system will be designed by using the advanced practices in other countries as references, upon this, taking the reality of China into consideration cautiously. The thesis is divided into three chapters. A brief introduction of each chapter is given below:With the aim to provide a comprehensive understanding of Assumption of Risk and to build the theoretical foundation for the elaboration in the later stages, Chapter One reviews the basic concepts of Assumption of Risk thoroughly. Initially, an overview is provided in terms of its history, key elements of its system construction and types. In the following stage, the definition of Assumption of Risk is clarified bad on a preci analysis, which tries to predict its development in the near future from its history, to capture its real nature from its construction and to take the esnce from its existing types.In Chapter Two, an analysis is conducted with a focus on three key elements of the assumption of risk behaviors, which are the subject, the object and the intention. Through relevant cas and legislation, more details are given in terms of analyzing the restricted applicable subject of Assumption of Risk and the applicable areas of it, which are with a preference. Moreover, the expression of intention will be furth
er discusd, on the basis of the outline of types of Assumption of Risk in Chapter One. With clarifying the scope of application of Assumption of Risk, on one side, it affirms the feasibility of Assumption of Risk system in its scope of application and the necessity of its exit; on the other side, it denies the abu of the Assumption of Risk system.Chapter Three demonstrates the ultimate intention of the paper, which address the value and significance of Assumption of Risk by referring to legislative and practical experiences in other countries. Furthermore, it justifies the feasibility of constructing the system of Assumption of Risk in China. Moreover, specific legislative suggestions are given in terms of its system construction.夏雨来一至三十部
