标签归档 西安夜网论坛

　　The picture shows that the presiding judge of this case is in court.

　　guide reading

　　With the increasing admiration of the public for the concept of healthy living, yoga has gradually become a popular choice for the masses to keep fit. However, seemingly simple yoga exercise may also suffer sports injuries and lead to disputes. Recently, the People’s Court of Jinan District, Fuzhou City, Fujian Province concluded a case of tort liability dispute caused by yoga injury. After hearing the case, the court held that the yoga studio, as an institution specializing in training and teaching services, failed to fulfill its sufficient security obligations and should bear the main responsibility of this case. At the same time, the customer, as a person with full capacity for civil conduct, should be aware of the related risks of practicing yoga, but he continues to practice after feeling unwell, and there is also fault in the occurrence of damage results, so the responsibility of the yoga studio can be appropriately reduced. While fully safeguarding the legitimate rights and interests of consumers, the judgment of this case also reflects that the people’s court fully applies the concept of active justice to civil trial work, effectively exerts the rule-leading and value-oriented functions of judicial judgment, and plays a positive role in the standardized governance of service industries such as sports and fitness.

　　Fitness is risky and exercise needs to be moderate.

　　On December 10, 2021, Duan paid 3380 yuan to a yoga studio through WeChat and became an annual card member of the yoga studio. The next day, Duan transferred 5719 yuan to the yoga studio to buy a personal trainer course package. During the period from December 11th, 2021 to January 22nd, 2022, Duan frequently made an appointment with the yoga instructor Li in the yoga studio through WeChat and did yoga exercises.

　　In early January, 2022, Duan felt discomfort in his left hip after attending a private yoga class, and told his coach Li. After listening, Li said that this is a subluxation strain of the femoral head after normal exercise, so let Duan continue to do some rehabilitation and relaxation training in the yoga studio. Duan, out of trust in the coach, continued to go to the yoga studio for classes.

　　The injury becomes more serious, and fitness hurts the body.

　　On January 20, 2022, Duan went to the hospital for examination because of unbearable pain. The X-ray diagnosis report showed that Duan had degenerative changes in his left hip joint. On the 23 rd of the same month, Duan went to the orthopedic hospital for magnetic resonance examination, and the imaging diagnosis was: a small amount of effusion in the left hip joint space.

　　From March to May, 2022, Duan’s symptoms have not been alleviated, and he went to the hospital for examination and treatment many times. He was also hospitalized at the end of April and discharged on May 18th. The diagnosis conclusions given by the hospital are as follows: 1. Hip joint disease (left hip arthritis) edema (mild bone marrow edema in the left acetabulum and mild bone marrow edema in the upper femur of the left femur); 2. Abnormal findings of diagnostic imaging examination in other parts of musculoskeletal system (mild degeneration of pelvis), etc.

　　After leaving the hospital, Duan found a yoga studio to find a solution.

　　The negotiation ended in vain, and the judge was asked to judge.

　　Since then, Duan and coach Li have repeatedly communicated and negotiated related compensation matters, but the two sides have never reached an agreement, so Duan sued the yoga studio and Li to the court. The defendant argued in the lawsuit that Duan confirmed in the WeChat chat with Li that the range of yoga movements taught by Li was very small, and the teaching intensity was low, and Li only demonstrated the movements and told the essentials of the movements, and Duan stretched himself, so Li did not press Duan’s body, so there was no fault in Li’s yoga teaching, and Duan’s injury was not caused by Li, so the defendant should not bear the responsibility.

　　In addition, as a sport, yoga practitioners should practice in a step-by-step manner according to the flexibility of their ligaments and the strength of bone structure. Duan, as a practitioner, should fully understand the dangers of practicing yoga. He is eager to achieve success and frequently asks for classes at his own risk, so his injury result is caused by his improper practice. According to the law, if the victim intentionally or neglects the occurrence or expansion of the same damage, the liability of the compensation obligor may be reduced or exempted.

　　There is a causal relationship after two appraisals.

　　In June, 2022, Duan entrusted a judicial appraisal institute for appraisal, and the appraisal opinions issued by the judicial appraisal institute were as follows: 1. There is a causal relationship between the consequences of Duan’s current left hip injury and the injury caused by practicing yoga in the yoga studio on December 29, 2021; 2. Duan’s delayed construction period is evaluated as 120 days, the nursing period is evaluated as 90 days, and the nutritional period is evaluated as 60 days.

　　During the litigation, according to the application of the yoga studio, the court entrusted another judicial appraisal institute to re-evaluate whether there is a causal relationship between Duan’s left hip injury and yoga practice, as well as the missed construction period, nursing period and nutrition period. The opinions of the judicial appraisal opinion issued by the judicial appraisal institute on October 14, 2022 are as follows: 1. There is a complete causal relationship between Duan’s practice of yoga in a yoga studio and his left hip injury; 2. Duan’s delayed construction period is 120 days, the nursing period is 90 days, and the nutrition period is 60 days.

　　Both parties are at fault and bear primary and secondary responsibilities.

　　Based on the facts of the case and relevant evidence, the court held that citizens have the right to life and health, and the actor should bear tort liability for infringing upon the civil rights and interests of others due to his fault. Duan’s left hip injury has a complete causal relationship with the yoga exercise directed by Li, as evidenced by the appraisal opinions issued by two appraisal institutes.

　　As an institution specializing in yoga training and teaching services, the yoga studio should provide students with a safe fitness environment and professional fitness services. It failed to fulfill its sufficient security obligations, resulting in Duan’s injury, and continued to arrange Duan to do yoga exercises after Duan told him that his left hip was unwell. It was at fault for Duan’s injury and should bear the main responsibility of this case.

　　As a person with full capacity for civil conduct, Duan should be aware of the risks associated with practicing yoga, have a considerable sense of self-protection, and have a full understanding of his physical condition and endurance. However, after feeling the discomfort of the left hip joint, Duan did not choose to see a doctor in time, took the initiative to stop training, and continued to carry out yoga training. He himself was also at fault for the occurrence of the damage result, which can appropriately reduce the liability for compensation of the yoga studio. Li is a yoga instructor in the yoga studio, and Duan was injured in yoga teaching, so his employer yoga studio should bear the liability for compensation.

　　In the end, combined with the actual situation of the case and the degree of fault of both parties, the court ruled that the yoga studio should bear 70% of the liability for compensation, and Duan should bear 30% of the liability himself.

　　After the judgment, neither party appealed, and the judgment has taken legal effect.

　　■ referee analysis

　　The combination of fault liability principle and fault offset system

　　Natural person’s right to health and body should be protected by law. When engaging in social activities, all civil subjects should fulfill the necessary duty of care, respect the rights and interests of others, and avoid causing damage to the rights and interests of others. Any act that causes damage to the rights and interests of others due to negligence or neglect shall bear the corresponding liability for damages. Article 165 of the Civil Code of People’s Republic of China (PRC) clarifies that the principle of general tort liability is the principle of fault liability, that is, unless there are special provisions in the law, generally speaking, the civil subject should bear the liability for damages only when the civil rights and interests of others are infringed by fault (intentionally or negligently); If there is no fault, it is not responsible.

　　It is worth noting that Article 173 of the Civil Code states that when the victim is at fault for the occurrence of damage or the expansion of the damage result, the liability of the compensation obligor for damages shall be reduced or exempted according to law, that is, the fault shall be offset. As an important system of damage compensation, the effect of the principle of negligence offset is reflected in three levels: first, for the infringer, the effect of the principle of negligence offset is reflected in the reduction or exemption of his liability for damage compensation. Second, for the infringed, it is reflected in the fact that his claim for damages is restricted in entity, and he has lost part or all of his claim for damages. Third, for the court as a referee, it is reflected that the judge should distribute the damage results fairly among the parties according to specific standards and determine the responsibility. Negligence offset, in essence, is to consider the faults of the offender and the victim to determine the primary and secondary responsibilities, rather than offset each other.

　　Returning to this case is essentially a combination of the principle of fault liability and the system of fault offset. First of all, institutions engaged in yoga training and teaching services should provide students with a safe fitness environment and professional fitness guidance services, and do their best to ensure safety within reasonable limits. Yoga is a dangerous sport. In the process of practice, the staff of the yoga studio should guide the students to complete the corresponding actions according to the intensity suitable for their own foundation, and give necessary safety tips. In the case of knowing that the students are unwell due to the practice actions, they should not continue to arrange yoga exercises, which will aggravate the injuries of the students. Therefore, the principle of fault liability applies and the yoga studio bears the main responsibility. Secondly, students, as adults with full capacity for civil conduct, should also know the related risks of practicing yoga, have a considerable sense of self-protection, avoid causing self-harm in yoga exercise, and should also bear part of the responsibility for the expansion of the damage results.

　　At the same time, the principle of negligence offset has its subject scope of application. If the victim is at fault for the occurrence or expansion of the damage, it should be applied to reduce the compensation liability of the offender. There should be no objection. It is worth noting that in judicial practice, when a third person who has a specific relationship with the victim has the following circumstances and is at fault for the occurrence or expansion of damage, the principle of negligence offset may still be applied:

　　(1) Legal representative

　　The legal representative is the guardian of a person without or with limited capacity for civil conduct, and has the legal obligation to supervise, protect and take care of the person without or with limited capacity for civil conduct. If the legal representative neglects to perform his guardianship duties, resulting in damage to the ward, based on the guardianship relationship between the legal representative and the victim, the principle of negligence should be applied to reduce the liability of the offender.

　　(2) Staff

　　If a staff member causes property losses to the employer due to the infringement of others in the course of performing his duties, if the staff member is at fault for the occurrence or expansion of the damage, his fault is regarded as the fault of the employer, and the fault can be applied to offset and reduce the compensation liability of the infringer.

　　■ Expert comments

　　Strengthen the supervision of fitness practitioners and operators.

　　Ding Zhaozeng, Associate Professor of Fujian Normal University Law School

　　The verdict of this case conforms to the provisions of Article 165 of the Civil Code of People’s Republic of China (PRC), "If the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability" and Article 173, "If the infringed is at fault for the occurrence or expansion of the same damage, the liability of the infringer may be reduced".

　　On the one hand, in the fitness and yoga courses, the service contract relationship is formed between the members and the yoga institutions, and the instructors need to formulate targeted courses according to the students’ physical conditions and fitness goals, and provide professional guidance during the practice. If the members’ sports are injured due to the coach’s mistakes, the coach and the organization may have to bear the corresponding tort liability.

　　On the other hand, gymnasiums, yoga studios and other institutions should fulfill their security obligations to members, create a good and safe fitness environment, ensure the safety of supporting service facilities in business and management places and the qualification compliance of coaches, so as to effectively protect the personal and property safety of members. However, the security obligations of gymnasiums, yoga rooms and other institutions are not infinitely expanded. If a member is a person with full capacity for civil conduct, he should have a reasonable understanding of his own health, and should also have a sense of safety and self-protection about the exercise environment and sports equipment. Members should arrange exercises scientifically and reasonably according to their own physical conditions to achieve the purpose of safe and healthy exercise. If members fail to fulfill their duty of care, they should bear certain responsibilities for the consequences of their own damage.

　　This case also reflects that the current fitness and yoga consumer markets need to be standardized. On the one hand, the entry threshold for fitness and yoga coaches should be improved, and the skills training and quality education for coaches should be strengthened. Coaches should hold certificates, and coaches engaged in fitness and yoga should hold China Fitness Yoga Grade Certificate. On the other hand, we should strengthen the standardized and legal management of gymnasiums and yoga studios. As soon as possible, formulate and improve the unified standards of fitness, yoga training, grade evaluation and other aspects, so that fitness and yoga training have rules to follow and rules to follow. In addition, it is also necessary to clarify the supervision departments of the fitness and yoga industries, strengthen the supervision of practitioners and operating venues, rectify and clean up the fitness and yoga venues with irregular operation in time, and standardize the industry order.

　　Bright pictures/vision china

　　[thoughts]

　　editorial comment/note

　　Labor refers to the activity that people create material wealth and spiritual wealth necessary for their own survival and development through their own hard physical or mental efforts. In the new era, labor education has been picked up again, and schools have gradually begun to jointly carry out labor education practice with society and families. But in reality, labor education is often reduced to a simple task in daily teaching, a simple physical education, skill learning, and even alienated into entertainment, punishment and domestication. This paper holds that the lack of understanding of the connotation of labor and labor education still leads to some misunderstandings in the practice of labor education, such as the "servitude" of cognitive mental work that makes learning and labor oppose each other, the "play" that replaces the real pleasure of labor, and the lack of continuity in labor education, which needs serious reflection based on the connotation of labor education, and has certain practical pertinence, hoping to bring inspiration to readers.

　　1, learning "servitude" put learning and labor in opposition.

　　In recent years, labor education has been promoted to the same position as moral education, intellectual education, physical education and aesthetic education, so some schools have vigorously carried out labor education practice. Some open up schools to build farms and guide students to carry out productive labor practice; Some combine social resources and rely on labor education practice bases to organize students to experience labor. Social practice activities of learning agriculture and learning industry are carried out regularly every year in many places. However, while increasing the opportunities of labor experience, we will find a conventional concept that students’ daily study is not labor. This is really worth reflecting on. Isn’t learning itself labor?

　　In fact, learning itself is also a kind of labor, and learning is cognitive mental labor. Soviet educator Suhomlinski believes that "labor education begins when students sit behind desks and study. Desk is the most complicated machine tool, which makes children, teenagers and teenagers feel that it is shameful to be careless, and laziness and idleness are sad. It is the most difficult thing for students to establish this understanding in education". Learning is a kind of labor that promotes the combination of wisdom and hands’ efforts. In this labor, learning is labor, while knowledge is the result of labor efforts. Under the background of digital labor era, the function of labor gradually turns to the existential function of realizing personal self-worth and obtaining the sense of value and meaning of existence. From this perspective, completing labor outside of learning may not be able to obtain more sense of value and existence than learning process.

　　If learning is labor, why talk about labor education now? Why didn’t the mental work, which occupies the main position in students’ life at present, achieve the purpose of labor education? Why do schools often oppose mental labor and productive labor, and think that too much emphasis on intellectual development leads to insufficient labor experience? This is because the mental work of learning is alienated, and learning has been externalized as "labor".

　　To recognize that learning is externalized as "labor", we need to trace back the essence of learning, a mental labor, and re-examine the current learning process of students. From Marx’s definition of labor, we can see that labor is firstly a process between man and nature. In the process of material exchange with nature, people increasingly realize the common attributes of things and phenomena, and find the regularity and connection between them, while mental labor is expressed in the form of representation, concept and reasoning. Learning this mental work ultimately points to scientific understanding of things, which is also an essential attribute for learning to become mental work. At present, students’ learning has gradually become "externalized labor" pointed out by Marx. Marx said in the Manuscript of Economics and Philosophy in 1844: Labor is an external thing for workers. In labor, he does not affirm himself, but denies himself. Instead of feeling happy, he feels unfortunate. Instead of freely exerting his physical strength and intelligence, he makes himself physically tortured and mentally destroyed. Once the external force stops, he will escape from labor like a plague. This exposition of externalization of labor seems to be just right to describe the study of today’s students. Students’ study is not to scientifically understand reality, but to pursue external material needs. The "tearing books after the college entrance examination" repeatedly exposed by the media reflects the students’ escape from this externally imposed task. Therefore, learning is no longer real labor, and it no longer has the function of liberating physical strength and intelligence.Instead, it becomes "hard labor", so it has little effect on improving students’ labor literacy.

　　2. "Gamification" makes students lose their interest in labor.

　　Corresponding to the fact that learning has become "hard labor", other forms of labor education that are gradually emerging show a trend of "gamification". Some schools carry out interesting and wonderful labor activities to attract students, and some schools integrate labor education into spring outing. On the one hand, this can improve students’ enthusiasm for participating in labor, but on the other hand, we need to pay attention to avoid blurring the difference between labor and games. Labor is the process of externalizing oneself, while game is the process of internalizing reality. The fuzziness of the difference between labor and games is more obvious in the digital age. Digital labor blurs the time-space boundary between entertainment and work, and dispels the traditional antagonistic relationship between play and labor.

　　Labor is a serious process of giving, and the joy of labor lies in creation. This kind of giving also explains the self-externalization of labor. Students devote their physical strength and intelligence to the labor process and gain certain results. The pleasure that students feel in their work is the pleasure of creating things because of self-sacrifice, not fun. There is a difference between labor and games. Games can naturally bring satisfaction to children, but labor itself has no interest in children, so the interest in labor needs to be cultivated and developed consciously. The "gamification" of labor makes many activities look interesting, but there is no labor in essence, and students can’t gain interest in labor. Suhomlinski believes that the interest in labor should be manifested as "they realize that they can act on nature, make plants give fruits, and use tools to process wood or metal into needed shapes". Therefore, in the practice of labor education, we need to judge whether the interest in the labor process comes from giving and creating, or is interfered by other factors such as gamification.

　　The contribution in the process of labor can cultivate positive labor values and make students love the working people and respect the fruits of labor. At the end of the 19th century, a "new" school appeared in France to train people engaged in "advanced knowledge occupations". In this school, students treat manual labor just like games and sports, because they don’t have to live by manual labor in the future. Although this school is located in the countryside, the students are far away from farmers’ lives. Although they are also working, they can’t really understand and study various social relations. Rousseau believes that only by taking part in labor in person and understanding all its complexity and arduousness according to experience can students judge the social significance of a production department in the future. Therefore, if we don’t regard labor as a serious process, we can’t cultivate our feelings for the working people, and we can’t cultivate our appreciation for the obtained survival materials.

　　3. Labor education stays in experience and ignores daily self-service labor.

　　At present, the labor practice of studying industry and agriculture in some areas is vigorously carried out, and an institutionalized labor experience system is gradually formed based on the construction of learning industry and agriculture bases. However, the persistence of these activities is worthy of attention. Most schools spend one week each semester leading students to experience labor, but they only stay in the experience once each semester, and there is a lack of cohesion between the activities, which is easy to make the labor experience become a casual entertainment. What’s more, some schools organize students to pull weeds in wasteland, and students regard pulling weeds as a kind of hard labor. This kind of labor experience of "working without teaching" deepens students’ rejection of manual labor. Therefore, the experience of labor must be complete, so that students can see the results of labor and feel satisfied with the achievements they have made through their own labor. If we just stop at pulling weeds without letting students experience the significance of pulling weeds for the growth of saplings, it will be difficult for this labor experience to play its due role. To lead students to plant wheat seedlings, we should let them see the process of wheat seedlings growing, heading and harvesting, and even let them see the process of wheat grains turning into food. At this time, the sense of pleasure comes not only from obtaining external products, but also from experiencing the sense of value and existence of labor.

　　In fact, daily self-service labor is just the way to implement the principle of continuity of labor education. However, these are often ignored in schools and families. Schools spend time and energy to organize off-campus labor practice, but at noon, catering staff bring students lunch to the classroom, "depriving" students of the opportunity to experience self-service. The relationship between man and self is at the core of the three attributes of man, which also means that students’ self-service labor plays a vital role in students’ all-round development. Self-service labor can be regarded as the beginning of labor education. No matter what kind of productive labor he is engaged in in in the future, self-service will become his obligation and habit, and it is also the habit of cultivating people to observe discipline, meet their personal needs by doing it themselves, and form the habit of respecting others. When students get food effortlessly, it is difficult to ask them to respect food and labor.

　　4. Strategies and suggestions for getting out of the misunderstanding of labor education practice.

　　"If there is labor, there may not be education". Labor needs to satisfy three relational attributes, namely, man and self, man and nature, and man and society. The basic contents of labor are: self-service labor, productive labor and social welfare labor. Labor education is a practical activity based on physical labor and material production labor, exploratory innovation labor and artistic aesthetic labor, which is manifested in independent life in family life, practice and hands-on operation in study, public welfare activities in society and various professional labor. Therefore, the strategy to get out of the misunderstanding of labor education practice is to balance people’s different forms of labor demand through diversification.

　　First of all, set up a cohesive and comprehensive labor education course. Dewey once said in The Waste of Education that all aspects and stages of education lack the necessary connection and cohesion with each other, which leads to conflicts and even negative effects. Similarly, in order to avoid the waste of education caused by labor education staying at the experience level, the labor education curriculum needs to pay attention to the cohesion of labor content and skills, which is reflected in the cohesion of curriculum content and the cohesion of education system. In terms of course content, it is necessary to set up labor courses that echo and connect properly according to the needs and characteristics of students of different classes and grades. In the education system, it is necessary to consolidate the skills and concepts of labor education through the cooperation between family and society. Schools can encourage students to find service jobs at home, take the initiative to participate in housework, and learn some labor skills. In addition, the content of labor curriculum also needs to take into account three basic labor education contents, namely, self-service labor, productive labor and social welfare labor.

　　Secondly, change the concept of labor education of parents and educators, so that parents and educators can establish labor education awareness. The promotion of the cooperative mechanism between labor educators and schools puts forward higher requirements for teachers and parents’ awareness of labor education. For example, some schools will arrange "homework". If teachers and parents can’t pay attention to it, the effect will be greatly reduced. In order to avoid staying in the curriculum, labor education needs to enhance the awareness of teachers and parents. On the one hand, it is necessary to interpret the connotation, function and significance of labor education in combination with the development of the new era. On the other hand, it is necessary to change the concept of labor education through necessary education and training, so that they can voluntarily carry out and cooperate with the development of labor education activities.

　　Finally, actively develop creative forms of labor and promote the combination of physical strength and brain power. Creative labor enables students to use the power of wisdom in physical labor, realize the unity of "internal thinking" and "external doing", and thus experience the happiness of labor. Wang Shaoliang, a scholar, believes that the labor values of contemporary teenagers have changed from "labor glory" to "labor happiness", that is, from "a kind of praise obtained from the outside through labor achievements" to "confirmation and affirmation of an essential force from their own labor achievements". Therefore, the development of school labor activities can not stay in simple physical labor, but needs to develop challenging creative labor that can show students’ physical and mental potential. Suhomlinski’s "creative labor theory" also points out that the content of labor education should be enriched with enough knowledge, abundant wisdom and refined talents.

　　 (Author: Ning Bentao Feng Linlin, respectively, professor of the Department of Education, Department of Education, East China Normal University, researcher of the Institute of Basic Education Reform and Development; Master student, Department of Education, East China Normal University)

　　Jimu journalist Li Xiancheng

　　On the evening of October 30, many netizens said that they heard a huge plane roar near Shenzhen Baoan Airport and saw a plane flying at a low altitude. On the evening of 30th, the staff of Shenzhen Safety Supervision Bureau of Civil Aviation responded to a journalist who said that at 6: 22 that night, a flight made a go-around due to air traffic control and deployment. When the plane went around, the engine made a loud roar.

　　Netizens broke the news that there was a huge roar at Shenzhen Baoan International Airport (Source: Network)

　　At about 6: 30 pm on October 30, many netizens reported that they heard a rush of aircraft roaring near Shenzhen Baoan International Airport and saw a plane flying at a low altitude, which shook the windows. I have never encountered such a situation before.

　　On the evening of the 30th, the customer service staff of Shenzhen Baoan International Airport told Jimu journalists that they had not received any relevant reports of aircraft anomalies. At present, Shenzhen Baoan International Airport is operating normally, and the inbound and outbound flights are operating normally.

　　Many netizens reported encountering similar situations (Source: Network)

　　At 10 o’clock on the evening of October 30, the staff of Shenzhen Safety Supervision Administration of Civil Aviation responded to a journalist who said that after detailed verification, at 6: 22 that night, a flight made a go-around due to air traffic control and deployment, and it was loud when going around. The flight landed normally at 6: 37.

　　"During the go-around process, the engine generated a loud roar. Because it is full horsepower, many netizens hear this voice. At present, it is still a normal deployment, and the more detailed situation requires more detailed investigation in the follow-up. " The above staff said.

　　Go-around, the technical term of civil aviation, also known as go-around (GA; Go Around), refers to the plane before landing to the ground, adjust the throttle to the maximum position (TO GA) and pull up the nose to return to the air and hover to land again.