In American Torts Law, the doctrine of assumption of risk has an important meaning as one of the affirmative defenses to the negligence claim. In European Civil Law system, the corresponding concept ? for example, ‘Handeln auf eigene Gefahr’ in German Law, ‘acception des risques’ in French Law ? is generally acknowledged, although these concepts have restricted meaning compared to ‘assumption of risk’ in Anglo-American law system. Furthermore, Draft Common Frame of Reference(=DCFR) for Principles, Definitions and Model Rules of European Private Law recently proposed that ‘acting at own risk’ is to be prescribed as a defense in addition to the consent of the person suffering damage in the tort claims (DCFR VI-5:101).
However in Korean Civil Law, the doctrine of assumption of risk has been scarcely considered and the specific problems such as the accident in sports game or in the dangerous area which could be regulated by the doctrine of assumption of risk or the corresponding concept have not been fully discussed. In these respects, this article aimed to introduce the doctrine of assumption of risk in American torts law and to compare this doctrine with the concept of ‘Handeln auf eigene Gefahr in German law. In addition, this article have an object to further the academic discussion with regard to these themes in Korea.
The doctrine of assumption of risk has been developed into four categories: Express Assumption of Risk, Implied Primary Assumption of Risk, Implied Unreasonable Secondary Assumption of Risk and Implied Reasonable Secondary Assumption of Risk. Therefore this article surveyed these four categories separately and concluded that three categories are still recognized as an affirmative defense while the category of the Implied Unreasonable Secondary Assumption of Risk is merged into the doctrine of Comparative Negligence.
On the other side, ‘Handeln auf eigene Gefahr’ in German law is a narrower concept than the doctrine of assumption of risk, because the concept does not connote the category of express assumption of risk. And the main area of ‘Handeln of eigene Gefahr’ such as the accident in free ride or sports game is now regulated by the traditional doctrine of German law. Therefore in Germany ‘Handeln auf eigene Gefahr has not developed into a separate doctrine.
This article also considered the doctrine of assumption of risk in the viewpoint of Korean Civil Law and concluded that some categories of the assumption of risk have the corresponding doctrines in Korean Civil Law. However, the category of implied reasonable secondary assumption of risk and the fireman’s rule are not found in Korean Civil Law. Therefore these themes require further academic discussion between Korean scholars. Furthermore, unlike the legal problem of the accident in free ride, the problem of the accident in sports game is scarcely discussed in Korea. The doctrine of assumption of risk could give the useful reference to the future discussion on this problem in Korea.