| Recreational and sports activities constitute a special area for risk allocation provided by Chinese Civil Code. However, due to the special features of recreational and sports activities in risk appetite, socialization and entertainment, traditional considerations for risk allocation such as creation and control of risks, avoidance and dispersion of risks, cost and benefit, as well as trust protection have failed to work in this area. Some participants who place themselves in a dangerous situation in recreational and sports activities have no intention to bear the loss or to release the liability of other parties, thus the conclusion of exemption based on the voluntary participation of the injured party cannot be made. The decisive factor for risk allocation in recreational and sports activities is the inherent and common nature of the risk itself. Adopting a lower standard of care in this area to avoid unnecessary damage is more in line with the essence of this special nature. The lowering of the standard of care for recreational and sports activities is legislatively manifested as responsibility for gross negligence. Therefore, when determining whether gross negligence is constituted in the judicial process, the court should consider whether the inflicting parties have failed to exercise the duty of care to avoid unnecessary damages in the context of the specific recreational and sports activity. The theories of expansion or limitation of the scope of recreational and sports activities both fail to consider the special nature of the risk of recreational and sports activities, which should be considered when delineating the application scope of the rules of assumption of risk in the recreational and sports activities provided by Article 1176 of Chinese Civil Code. |
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