Judicial Dilemma And Way Of Self-help Behavior

Self-help behavior, as a very important reason of legitimate acts, the present criminal lawcommunity pays a little attention to it. Many scholars think the predicaments of justice in theself-help behavior can be solved by legislation. In fact, whether legislation is viable or there isa more reasonable fashion is still unknown. Given all of this, in order to promote thedevelopment of self-help behavior theory research in China, explore another break of judicialpredicaments of self-help behavior, provide feasible advice for helping judicial workersdealing with corresponding situations. This paper involves the following specific content.Firstly, clarifying the basic theory of the self-help behavior. Secondly, after a rethinking oflegislation and hot spot criminal cases, carefully set the requirements of the establishment ofthe self-help behavior. Besides, this paper elucidates the position of unjustifiable self-help onsentence in the law application and related rules of sentencing.In addition to the preface and epilogue, the text has more than forty thousand words, isdivided into four parts to judicial predicament and outlet of self-help behavior.The first part: the basic definition of self-help behavior. This part mainly discusses thedefinition, basic characteristics, distinctions of the related concepts. In the perspective ofcriminal jurisprudence, the accurate definition of self-help behavior should be: a personsuffering illegal violation, who has no public aid force in emergency situations, to avoid theirrights recovery impossible, damage to the rights of the infringer to rely on its own, would beaccepted by social conventions and spirits of legal order, but has not clearly stipulated by laws.Because of self-help behavior has the necessity of the objective and subjective justification,self-help behavior can be a reason of legitimate acts, the person who helps himself can beremitted the responsibility of the criminal law.The second part: the analysis of the judicial dilemma of self-help behavior. Through ananalysis of facts、reasons and results、main differences of a series of hot spot cases, it isconcluded that the current judicial dilemma is mainly qualitative and quantitative. The formercan be divided into judicial dilemmas of justifiable and unjustifiable self-help, the lattermeans the judicial dilemma of penalty of unjustifiable self-help. It reflects in two aspects:whether unjustifiable self-help can be greater independent sentencing plot or not, still havedifferent understanding. If it’s for greater sentencing plot, as given a lighter or mitigated punishment or be exempted from the plot, there is no conclusion.The third part: the reflection of legislation of self-help behavior judicial predicament. Some scholars put forward the break of current judicial predicament should be self-helpbehavior’s legislation. After a review to its basic views and reasons, this paper finds fault withthe realistic foundation and theoretical defects of this viewpoint. In terms of rational,legislation is not the only means to solve the judicial dilemma, but should be a last resort.Crucially, due to the legislation of the self-help behavior does not accord with the currentlegislation trend, has inherent risk and lack of practical feasibility. It looks like an overhead oridealistic choice.The fourth part: breaks of self-help behavior judicial predicament. According to judicialpredicament, this section sets up the premise of self-help behavior, body condition, subjectivecondition, limit conditions, timing, and after fact reporting obligations one by one, andprovides the referee of expelling the action from sin. As regard to unjustifiable self-help, thepaper combines the theory of sentencing, defines the over-degree of a limit, analyzes itscharges may involves, makes its independent sentencing position clearly, and puts forwardapplicable rules of unjustifiable self-help when there are many plots. Besides, reasons ofexpelling the action from sin would be concerned. There is no need to deny the fact thatself-help behavior is both a blessing and a curse, so it is necessary to admit it under strictlimits for best apply effect. In order to receive education and punishment, we should pay moreattention to argument of these cases. While unjustifiable self-help shall be deemed to beindependent and greater discretionary sentencing plot, and should be for discretionarysentencing plot can be mitigated punishment or be exempted from punishment. With respectto unjustifiable self-help cases which involve many plots, we should not only pay attention tothe independent sentencing plot, also should fully consider other sentencing plot, and dealwith applicable rules of competition in accordance with a variety of plots. Referring itsargument, we should not only to interpret from what is independent from the plot, but alsoought to seek appropriate legal basis.