Comment Of Self-help Behavior Legislation

The related theoretical study of self-rescue action is not thorough,that it have occurred from time to time in social life, and the judicial practice is not unified, it’s difficult to guide people’s behavior accurately. Therefore, it is very urgent to define the concept of self-rescue action, constructs its constitutive requirements, find out ways to solve the judicial dilemma effectively. This article uses the method of comparison, defines the concept and elements of self-rescue action, distinguish with the other actions. The method of case analysis to sort out the case in the judicial practice, the current situation of self treatment cases and the difficulties and its causes, leading some scholars which based on the self-rescue action legislation perspective. However, the current state of the rule of law idea in our country and the prevalence of the stable social order that self-rescue action lost the realistic foundation of legislation, there is no practical value about legislation. And from the perspective of comparative law discusses the shortcomings of foreign experience in the relevant legislation, legislative effect on self rescue behavior from the vertical analysis of law and value perspective to be questioned, and finally from the inherent defects of self-rescue action discusses the difficulty and risk of. To be a theoretical reflection on legislation of the view, the author puts forward the present situation the feasible control way-"ought to be" judicial settlement mode, thus tries to solve the minimization of the cost, also once again from the practice of legislation of the views of falsification. The provisions of the existing criminal law and criminal procedure law, has been adopted in the judicial practice by the theory of constitution of crime and the principle of legality, to save behavior provides overall crime. The provisions of the criminal law provide a direct method for justification in the judicial practice of the self-rescue action pursuant. The last part of the paper is the special case of self-rescue action, such as excessive self rescue, provides treatment. In conclusion, although the self-rescue action and self-defense, emergency hedge as private relief, can be contained into the whole social order of law spirit, but attention should also be paid to the damage is hard to be controlled. The latent risk destroy the social order and the rule of law. Therefore, whether it is personal, or judge, the application shall be to maintain the necessary restraint. In order to individual rights and freedom are appropriately recognized and respected, and safeguarding democracy and the rule of law society, public interest and order.