自甘冒險的法理與定位──以日法台之比較為中心

The Theoretical Position of Assumption of Risk: A Comparative Study of Japan, France, and Taiwan

我國學說自外國法繼受自甘冒險概念，實務亦受學說影響，於運動傷害案件大量適用自甘冒險法理。然而，值得進一步探究者為，各學說建構之自甘冒險法理是否有所異同？實務上除運動傷害以外，尚有何些案例適用自甘冒險？為何多於運動傷害案例才適用自甘冒險？比較法上除了積極適用自甘冒險之國家外，是否亦有排拒自甘冒險適用的國家，其又基於何種理由？於侵權行為損害賠償法體系中引入自甘冒險概念，於法政策上有何辯證？
本文考據日本法和法國法之繼受經驗，提出以下想法：加害人遵從某特定活動之行為規範而行動，不應視為有過失或違法，無需徵引自甘冒險法理以否定責任。其次，導入自甘冒險概念，於我國實務上已產生「將運動神聖化」之副作用，與實務對兒童嬉戲事故案件之處理相比，更屬昭然。最後，擴大自甘冒險適用，意味削弱對被害人人身之保護，也和時代發展傾向背道而馳。
建議我國實務未來於處理包含運動傷害事件之各種侵權事件時，不再以自甘冒險為由否定責任，應於個案中考慮各該活動之規則、層級、目的、當事人年齡、經驗和實力之差距、當事人的關係等因素以判斷加害人是否須負責。於立法論上，也可思考於職業運動事故之無過失責任化、擴大責任保險適用之可能性。

Taiwan’s legal doctrine has adopted the concept of“assumption of risk”from foreign legal doctrines, and this concept has had a significant influence on Taiwanese legal practice, particularly in cases of sports-related injuries. However, there are still questions worth further exploring. First, are there differences among Taiwanese legal doctrines in the construction of this legal principle? Second, aside from sports-related injuries, in what other types of cases have Taiwanese courts applied“assumption of risk”? Why does the court apply this doctrine primarily to sports-related cases? Third, besides legal systems who positively embrace this concept, are there any legal systems who deny the necessity of this concept in their tort law? What reasons underlie such rejections? Fourth, what can be said from the point of view of legal policy concerning the adoption of this concept?
This paper, referring to the experiences of Japanese and French law of their inheritance and application of this concept, make the following three arguments: Firstly, if a tortfeasor complies with the rules of a specific activity, his actions should not be considered negligent, and there should be no need to invoke“assumption of risk”as a basis of denial of his responsibility. Secondly, the introduction of this concept in Taiwanese tort law seems to have unintended consequences, which can be called the“sanctification of sports”in court practice. This is evident when compared to children-playing-related injuries. Thirdly, expanding the application of“assumption of risk”means weakening the protection of personal injury victims. This result seems to go against the trends of societal development.
For these reasons, this paper suggests that in the future, when dealing with various tort cases, Taiwanese courts need not to invoke the concept of“assumption of risk.”Instead, consideration should be given to factors such as the rule, level and purpose of the event, and also the disparities in the age, experience and strength of the parties involved, as well as their relationships, to determine whether the tortfeasor should be held responsible. On a legislative level, it is also worth considering the possibility of a non-fault liability in professional sports accidents along with an expansion of liability insurance.