| Assumption of risk is not a purely branch-law issue that only involves criminal punishability. On the one hand, the unitary criminal law thinking represented by the “imitation accomplice” model mistakenly applies the “actor-actor” responsibility allocation model to the “actor-victim” responsibility allocation; and on the other hand, it restricts the function of the assumption of risk to distinguishing between crime and non-crime, but neglects its significance at the level of primary norms. The analytical framework for the issue of assumption of risk consists of two levels, i.e., legal nature and legal responsibility. At the level of legal nature, firstly, from the perspective of the distribution pattern of rights, certain situations of assumption of risk are sufficient to directly negate the violation of the duty of care. Secondly, when it is determined that the perpetrator has violated the duty of care, further investigation is needed to determine whether the illegality of the negligent act can be exceptionally excluded based on the victim's commitment. At the level of legal responsibility, it is possible to reduce or even exclude the criminal punishability of the act due to the “fault of the victim”, or to reduce the tort liability of the perpetrator for damages through the “counteracting of negligence”. |
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