Throw a brick to attract jade, and discuss it.
Risks and legal responsibilities of outdoor adventure sports
First of all, I would like to thank the leaders of the Autonomous Region Sports Bureau, the Autonomous Region Social Sports Center and the co-organizer Guangxi Mangrove Outdoor Club for their trust and arrangement. I had the honor to meet with leaders, elites, seniors, professionals and fans of outdoor sports clubs in Guangxi to discuss the development plan of outdoor sports in Guangxi and the opportunities, hidden dangers and countermeasures in the process of outdoor development. Looking at the hundreds of outdoor elites under the stage, less than ten people are familiar with it in memory and can recognize it. In just ten years, it can be said that the waves behind the Yangtze River push the waves before, and talents come forth in large numbers. It can be seen that I am deeply moved by the rapid, extensive and huge changes in the development of outdoor sports in Guangxi! According to the arrangement of the meeting agenda, this paper mainly discusses the legal issues such as the risks and legal responsibilities of outdoor sports, trying to find out the possibilities and methods of reasonable evasion within the existing legal framework. The so-called stones from other mountains can attack jade, so let's take it as a brick to attract jade for the time being. In order to highlight the characteristics of risks and responsibilities of outdoor sports, we will not talk about ordinary outdoor sports here, but only outdoor adventure sports. Please forgive me.
One,
Concept:
1、
Adventure: The so-called adventure generally refers to going to a dangerous place where no one has been or few people have been. Specific to outdoor sports, it can be extended to outdoor sports with potential dangers and unexpected hazards in the natural environment outside the tourist built-up area or open area, including but not limited to: crossing the virgin jungle desert snowfield, climbing extremely high mountains, drifting in streams and canyons, exploring tiankeng caves, climbing coastal rock cliffs, etc.
2、
Risk: refers to possible, potentially unpredictable and completely preventable dangers or injuries. In outdoor adventure sports, it means that although the cognitive ability of ordinary participants can be predicted, it is difficult to accurately judge the danger or harmfulness of its occurrence and result. Such as lightning, falling rocks, mountain torrents, sliding, stepping on the air, drowning, snake bites, etc. Swimming in the open floodplain in the rain may be struck by lightning, but when and who will be struck by lightning? Is it injury or death? Walking through the forest and grass, you may be bitten by a snake, but who will you bite? Is it poisonous or not? Death or injury? Predictable, but the possibility of occurrence and result is risk.
3、
Legal liability: civil, criminal or administrative liability according to law. Here I mainly talk about civil liability and administrative liability, especially civil liability.
Second,
Organizational forms of outdoor adventure sports: different types of organizational forms have different economic and legal relations, which will lead to different risk liability consequences.
1、
A single person; The so-called lone ranger.
2、
Natural person combination. It is also divided into non-profit portfolio and profit portfolio. Non-profit combination is also commonly known as AA self-help combination, that is, an activity combination composed of two or more natural persons voluntarily according to the rules of "sharing at public expense, self-help to complete tasks, and taking risks at their own risk"; For-profit combination is a combination in which an individual (one or more people) is the initiator or organizer of an activity, and other expenses except the public expenses of the activity are charged to the participants in advance, or a fixed amount is agreed not to be settled, such as the leader fee, organization fee and equipment use fee, or the participants share the leader-sharing fee, and the fixed fee is not refundable.
3、
Business combination. That is, the combination of operating legal persons or community organizations, such as outdoor goods stores, sporting goods sellers, outdoor sports clubs, operating outdoor websites, etc. As the sponsor and organizer, publicly convene activities to unspecified relative persons. Business combination includes fixed expenses and non-fixed expenses, regardless of whether it is profitable.
4、
Controversial combination. The nature of this type of organization is controversial. Common ones are: ① commercial outdoor websites launch outdoor activities to unspecified parties not in the name of the website itself, but in the personal name of its authorized or designated moderator; (2) Running an outdoor club is not in the name of the club, but in the personal name of the person who has an employment or affiliated relationship with it, publishing and convening activities on various websites and forums (that is, online fishing). In fact, the club plans and implements activities; (3) Outdoor activities with commercial advertising revenue (there are plug-in advertising agents or empty advertising spaces) Outdoor activities initiated by QQ group owners to the "masses" in their own names. Although the fees charged for such organization activities are not necessarily profitable, and some are even public welfare, in jurisprudence, such a combination is generally presumed to be an organization activity with commercial purposes, because it is suspected of operation or profit, or has actual or potential commercial interests, such as promoting websites or outdoor products of a certain brand in order to gather potential consumer popularity. Unless the sponsor can provide enough credible evidence to prove that there is no interest relationship in any form between himself and the website, club and advertiser. In fact, this kind of self-testimony is very difficult, including the difficulty of evidence collection, the relevance with witnesses, and the singleness of evidence. It is also difficult for judges to accept.
Third,
Risk types of outdoor adventure sports:
Classification according to the source of harmful factors:
1、
Risks caused by natural forces: including hazards caused by meteorological disasters, geological disasters and wildlife attacks; This is the most common, frequent and unpredictable sudden invasion caused by outdoor exploration. Such as lightning strikes, avalanches, mountain torrents and poisonous snake bites.
2、
Man-made injury risk: including the injury caused by the organizers and participants of the activity intentionally or negligently, including the injury to themselves or others. For example, pranks cause others to fall, jump over a stream and knock others over, causing injuries, and fall and get injured.
3、
Risk of injury caused by a third party: the injury caused by people or events other than the organizers and participants of the event. For example, the harm caused by third-party reasons such as traffic, accommodation, diet, guides, and disputes between people and animals in activities. Such as casualties caused by chartered car accidents, diseases caused by unclean diet, and being bitten by dogs when crossing villages.
According to the nature of the hazard:
1、
Inherent hazard risk (or main hazard risk): the potential, foreseeable or unique and inherent hazard risk of the exploration activity itself. Including natural forces and some man-made risks. Different exploration projects have different inherent dangers. For example, in Deng Ji, high snow mountain, heavy snow, strong wind, hail, avalanche, severe cold, sliding, high disease, blindness, temperature loss, collapse, loss, misleading, weather forecast error, rescue failure, etc. Are inherent risks; In the rapids drifting in the canyon, mountain torrents, capsizing of ships, rock collision, drowning, disappearance, temperature loss, collapse, misjudgment or manipulation of boatmen, collision of two ships and failure of rescue are all inherent risks.
2、
External injury risk (or secondary injury risk): the risk brought by others besides the internal injury risk. For example, drifting shippers provided leaking ships, mountaineering cooperation provided leaking gas cylinders, and the team leader used a broken flat belt upstream, and so on.
3、
Accidental hazard risk: sudden hazard risk that is not within the scope of internal and external hazard risks and cannot be reasonably foreseen. For example, when the rock fell, a snake suddenly appeared in the crack of the stone, and was frightened to loosen the rope lock and fell down, and was injured.
Fourth,
Legal provisions and legislative prospect of outdoor adventure sports risk liability;
1、
Unfortunately, there is no law and regulation in our country that clearly stipulates the responsibility of outdoor exploration. Even in the current laws and regulations, there are no chapters or specific laws specifically tailored for the responsibility of outdoor exploration. The Sports Law, as a special law regulating sports, has no provisions; The General Principles of Civil Law is not a civil code; The State Council's "National Fitness Regulations" also does not exist. Sadly, the Supreme People's Court's Opinions on Several Issues Concerning the Trial of Personal Injury Compensation Cases has no supplementary provisions in this regard. I thought that the Supreme People's Court had given a judicial reply to the case of personal injury compensation for the "7.9" Zhaojiang mountain torrent in Wuming, Guangxi, and incorporated the basic jurisprudence of this reply into the Tort Liability Law promulgated on February 26th last year and implemented on July 6th this year, but this is not the case. Outdoor adventure has become a very popular and popular form of mass sports, and the cumulative number of participants is not less than 1 100 million every year, which has almost become the most characteristic mass sports fitness in China. Moreover, there have been hundreds of outdoor risk accidents and disputes in recent years, but there is no existing law to clearly adjust the norms. This cannot be said to be a major legal deficiency or a loophole. In real life, there are fewer people involved in subverting the government, participating in underworld organizations, occasionally whoring, dogs biting people and spreading pornographic jokes. However, the state has already enacted laws, and the laws are strict. This shows that the legislature under the leadership of our party is not very concerned about mass outdoor sports, and it is really eccentric. Of course, this is a joke. I hope the country will legislate for outdoor exploration as soon as possible.
2、
In the current judicial practice, we can only refer to some legal principles or universal provisions to regulate and adjust the responsibility of outdoor exploration. For example, AA self-help adventure is generally based on the principle of "voluntariness, fairness, honesty and credit" in Article 4 of the General Principles of Civil Law; We should judge the general tort liability principle in Article 106, the negligence offset in Article 13 1 and the fairness principle in Article 132. For commercial and for-profit outdoor adventure sports, the liability for risk damage is generally handled with reference to the relevant provisions of the Contract Law, the Consumer Protection Law and Article 6 of the Supreme Law "Opinions on Several Issues Concerning the Trial of Personal Injury Compensation Cases", that is, the commercial and for-profit outdoor adventure sports are simply regarded as a general service contract relationship or a general tourism consumption relationship, and the liability is identified as breach of contract or general infringement. The same type of case has different legal relations and different judgments, but different types of cases have the same legal relations and the same judgment results, which is unfair. Why is it unfair? Because outdoor adventure is a high-risk sports event with the greatest correlation with natural factors and its own factors, its risks are sudden and changeable, so it is difficult to avoid and prevent, and the consequences vary from person to person. It has the distinct characteristics of uncertainty of hazard occurrence, hazard object and hazard result. In addition, participants in outdoor adventure sports have a basic understanding and judgment of the activity risk and risk responsibility commitment convention or commitment agreement in advance through their own common sense, pre-departure training or being told, and finally voluntarily participate in adventure activities in various forms. This constitutes an "adventure" behavior in tort law, that is, knowing that there are risks in the activity, but willing to bear these risks to participate in the activity, and willing to bear the constraints of risky behavior practices or agreements. "Knowing that there are tigers in the mountains, I am willing to be eaten by tigers", which is the characteristic of daring to take risks at my own risk. It is the essential boundary between outdoor adventure sports and ordinary folk communication activities, and constitutes a public order and good customs that outdoor adventure industry generally recognizes and voluntarily abides by (foreign countries are laws, but domestic countries can't just call it public order and good customs). It is not only different from playing billiards, running and doing yoga, but also different from traditional sightseeing services. Therefore, no matter whether its combination form is AA self-help or profit-making activities, as long as the participants have full civil capacity, I voluntarily participate, and I do not raise clear objections to the agreement or agreement on risk liability. As long as the organizer has no intention or gross negligence, the law should fully respect the principles of voluntariness, fairness, honesty and credit, and free disposition of civil rights. We should not ignore the risks inherent in the adventure itself, as well as the liability convention and prior agreement. As long as there are casualties, we should assume that both organizers and participants are at fault, share the civil liability after the risk event, and artificially create a "harmonious" rule for outdoor exploration. On the surface, the harmonious rule seems to solve the financial difficulties and mental pain of the risk victims and stabilize the conflict of interest in the case. However, the harmony rule does not fully consider the basic legal fact of the inherent risks and characteristics of outdoor adventure, and forcibly adjusts the customary practices and conventions of outdoor adventure, which not only violates the judicial principle based on facts and the civil legal principle of honesty and credibility, but also undermines the public order and good customs of outdoor adventure risks. There are only two consequences: first, the parties are not satisfied. Second, everyone is worried about themselves. Outdoor adventure sports and even competitive mass sports activities will end or develop abnormally. Fortunately, judging from the final judgment of the "7.9 Zhao Jiang mountain torrent personal injury compensation case", although the appeal reason of "at your own risk" has not been fully adopted, it has been recognized that participants in outdoor activities with certain exploration should know the risks, make reasonable judgments and be responsible for their own safety; For the results of personal and property damage caused by natural factors, the promoters and teammates are not at fault and do not bear the liability for compensation, but they should bear the limited liability for fair compensation. However, the effective judgment of Beijing's "compensation case for the death of snow crossing in Beiling Mountain" basically adopted the self-indulgent adventure theory of outdoor adventure, and determined that the outdoor website of Lvye, the promoters and other participants in the activity were not at fault for Xia Zi's accidental death, and rejected all the claims of the relatives of the deceased. However, it can be said that in AA self-help outdoor adventure activities, as long as the organizers and participants have no intentional injury or gross negligence, the risk responsibility of accidents with inherent risks is borne by the victims themselves. "At your own risk" has become a recognized and widely accepted rule in judicial practice.
3、
When outdoor adventure becomes one of the best activities in the national fitness campaign, the occurrence of risk accidents in sports cannot be completely avoided and becomes a common injury, and the dispute over its responsibility becomes a difficult problem that restricts the healthy development of the national fitness campaign, the reality and necessity of legislation appear. Although the handling of any social event in China will be "China-like", and the legislation is no exception, since it is aimed at the outdoor adventure introduced from western countries, the basic principles and legal basis of its legislation cannot completely abandon the existing foreign laws and make them completely China-like. Apart from ideology, firstly, human behavior rules are universal, secondly, similar behavior activities are homogeneous, and thirdly, the common moral value judgments of human society are similar. As an activity accompanying western global maritime trade and inland missionary movement, outdoor adventure has a history of nearly 300 years, and the relevant legal norms of its risk liability have gone through the process from fair arbitration to court decision, from judicial precedent to statute law, from jurisprudence to legal regulation. Although there is no legislation in this field in China, Article 16 of the Regulations on the Administration of National Automobile Sports approved and implemented by the State Sports General Administration clearly applies to the sports regulations issued by the FIA, requiring the contestants to conclude a contract with the event organizer by filling in the registration form, and requiring the contestants to promise that in the event of death, injury or property loss of the racer himself or other racers, passengers and crew members will, It is not allowed to participate in organizing and sponsoring competitions with the state sports administrative department, the organizing committee, sponsors, officials, service personnel, representatives, organizations designated by the competition committee, and any army, local organizations, all employees, companies and individuals; Moreover, when entering a competition or activity in the stage or activity area, the above guarantee will be extended to any other contestants, service personnel and their agencies. Article 18 also stipulates that in order to properly handle accidents, organizers and organizers of all sports events or activities must apply for adequate social public liability insurance and staff accident injury and medical insurance. Participants must take out personal accident insurance or third party liability insurance in advance. Vehicles participating in competitions or activities must meet the technical regulations of FIA and China FIA on safety, and they must also apply for relevant insurance in advance. The Measures for the Administration of Foreign Mountaineering also clearly stipulates that foreign mountaineering teams should sign mountaineering agreements with designated domestic mountaineering cooperation units, that is, the rights and obligations of both parties are determined by the mountaineering agreement contract. Of course, the mountaineering agreement should also stipulate the mountaineering risk responsibility. Although automobile sports are not adventure sports, they are high-risk sports. Although mountaineering by foreigners in China does not mean mountaineering by China people, it is an outdoor adventure with the nature of adventure. It can be seen that the rules of "the risk responsibility should be borne by the participants themselves", "the risk responsibility should not be investigated by the other party or the third party" and "the risk responsibility should be borne by themselves or the insured insurance institutions" and the principle of determining the risk responsibility contract should be applied to the risk responsibility of high-risk and high-risk sports competitions and outdoor adventure sports, which has been recognized by the State Sports General Administration and formulated as laws or regulations. This is a very gratifying little progress! It can be said optimistically that if one day the State amends the Sports Law or formulates the Regulations on Personal Injury Liability for High-risk Sports and Adventure Sports, three basic legal viewpoints will be adopted: one is risk liability, the other is contract risk liability, and the third is the transition from risk liability to insurance liability.
Five,
The responsibility of reasonably avoiding the risks of outdoor adventure sports;
Outdoor adventure sports have high risks and the inevitability of accidents. Before the state has formulated clear and detailed laws and regulations to regulate it, disputes and even litigation disputes around risk damage liability will continue to occur. How to carry out outdoor adventure sports, at the same time, reasonably avoid undue risk responsibilities and safeguard their legitimate rights and interests is an unavoidable problem in front of everyone. Here are some suggestions for you to discuss and practice:
I. General suggestions for the sponsors of AA self-help adventure activities:
1、
Only post on the website where you often post activity proposal posts, indicating that it is not a call post, that is, it is not an activity call for an unspecified group.
2、
It's best to meet only the donkey friends who often travel together, and insist on refusing minors, especially children under 16 years old. Children are persons with limited capacity for civil conduct (persons under the age of 10 are persons without capacity for civil conduct), and agreeing or accepting their participation constitutes a de facto temporary guardianship relationship. Once they are out of danger, I don't need to say that the legal consequences are known to everyone. In particular, we should advise those advocates who are very keen on organizing activities such as "all ages go to the top, and children are happy to climb the peak". Because of your kindness, you inadvertently bring yourself and your peers a risk beyond the inherent risk of sports: the legal responsibility of temporary guardians. From a moral point of view, it is also wrong to let underage children take risks.
3、
Briefly introduce the basic situation, preliminary route and itinerary of this activity, and indicate that the final implementation plan of this activity will be agreed by peers.
4、
The nature (self-help exploration) and basic risks (including but not limited to ...) of this activity are particularly prominent. Interested travelers are advised to collect information related to activities (weather, geography, geology, hydrology, maps, routes, humanities, etc. ) remind the peers to bring necessary outdoor equipment, tools and auxiliary equipment, and the peers have the right to decide whether to quit the activity halfway.
5、
Determine the person in charge of the activity with the nature of agency through temporary election or public promotion.
6、
For the way of assuming responsibility in case of risk accidents in special early warning activities, it is suggested that peers buy necessary personal accident insurance.
Two, for-profit natural persons to convene outdoor adventure organizers:
1、
Express the basic conditions and requirements of the participants and resolutely refuse minors to participate; When the guardianship obligation is increased for profit, the scope and limit of risk liability will expand.
2、
Make a detailed activity plan (intensity, difficulty, route and schedule) publicly, and explicitly ask participants to carefully judge whether their health status and outdoor skills are suitable for this activity;
3、
List the main risks of this activity in detail;
4、
The collection method and composition of publicity expenses, especially the amount of expenses other than public expenses, such as tour leader fees and organization fees; Allow participants to choose to quit halfway and promise to refund the fees other than the pool fee;
5、
In particular, it is suggested that the security obligation undertaken by charging extra fees should be within a relatively reasonable limit, and the compensation or compensation liability in case of damage accident should be within the scope of security obligation;
6、
Make clear the matters that do not undertake the obligation of safety guarantee (such as injuries caused by natural forces, injuries caused by a third party, actions that do not obey the leadership's command, injuries caused by personal factors, etc.). );
7、
Require participants to purchase personal accident insurance by themselves and provide purchasing services;
8、
Hold a pre-departure meeting to inform the activity risks and related safety precautions again.
You need to judge what the situation is according to your own situation, and the responsibility should be divided.