Research On The Construction Of The Civil Selp-Help Behavior System

Civil self-help behavior, as a kind of private relief, play an increasing big role in the maintenance of the parties'legal rights and conservation of judicial resources which can deal with civil disputes effectively. In many civil law and common law countries and regions, this system has been explicitly included in legislation, but our legislation of the self-help behavior is still blank. Civil self-help behavior is an act to protect one's legal rights when legal rights have been violated and the time is too late to request public remedy or is obviously inadequate to do so. It belongs to the scope of the private relief as same as the self-defense and emergency.This article starts with the concept of the civil self-help behavior, distinguishes it from the self-defense and emergency and the lien system, so as to define the civil self-help behavior strictly, then analyzes the nature of civil self-help behavior and the elements of the civil self-help behavior from the purpose element, situation element, method element and limit element, discusses the historical development of the civil self-help behavior. This article discusses the law philosophy base which is people-oriented, the jurisprudence base which is the balance of public power and private rights, and the legislative value which is the unity of order and justice of the civil self-help behavior. The article describes that it is necessary to construct the civil self-help behavior system in our harmonious society and it is important to reduce litigation cost and conserve judicial resources. On the base of comparative study of the legislative content and the legislation example of the civil law and common law on the civil self-help behavior, the article concludes that we should make a general provision of civil self-help behavior in the "Civil Code" general principles and make typical provisions in the sub-rule. This article claims that we promote the legalization of the civil self-help behavior at the same time restrains the right of one party as to protect the right of another, so as to construct a rational civil self-help behavior system.