Limit Analysis Of Self-help Behavior

In order to fully guarantee the civil subject’s freedom of conduct and to protect its own legal rights and interests more effectively in civil activities,the civil code clearly stipulates the self-help behavior in Article 1177,which fills the long-standing legislative gap.This article comprehensively covers three aspects of the self-help Act:the constitutive elements,the limit judgment and the legal consequence,among which the limit judgment of the self-help Act is particularly important for the application of this article.According to Article 1177,the standard of judging the limit of self-help behavior can be summarized as follows: only when reasonable measures such as detaining the infringer’s property are taken within the necessary scope of protecting one’s legitimate rights and interests,can it be considered that the limit of self-help behavior has not exceeded the necessary limit.According to this statement,the definition of the limit of self-help behavior is still vague and general.For example,what is the “Legal right”here? What criteria should be met by different measures in the so-called “Necessary scope”? What other means should be included in “Such reasonable measures”? How should the degree of rationalization of these instruments be determined? The article does not give a clear response to the above-mentioned issues,so this article as a starting point for analysis and discussion,with a view to judicial practice to determine self-help behavior to provide some ideas.This paper is divided into three chapters.The first chapter is about the legitimacy of self-help behavior and the necessity of its “Limitation”.On the one hand,it affirms the legitimacy of self-help behavior from three angles: human nature basis,cultural basis and functional value.On the other hand,on the basis of the recognition of its legitimacy,the author holds that the self-help behavior should be limited as necessary because: firstly,the self-help behavior itself has the instinct of right expansion and abuse,if left unchecked,it will breed violence and cause social order disorder;The limitation of self-help behavior is due to the equality of the protection of legal rights and interests.Thirdly,the necessary limitation of self-help behavior to some extent strengthens the legitimacy of self-help behavior.The second chapter focuses on“Legal rights and interests”from the subjective and objective aspects.On the objective level,firstly,the scope of legal rights and interests protected by self-help behavior is analyzed from the two aspects of rights and legal interests,having the source of legitimacy and the possibility of recovery,and having to grant private relief to the civil subject authorized by law;secondly,in view of the non-recoverable nature of the right of the person,it is more appropriate to determine the right of self-help behavior protection and relief as property right.As far as the legal interest is concerned,the interest based on possession can also be the protection scope of the legal right of self-help.In addition,this article also puts forward that the legal rights and interests protected by self-help behavior should have the reality of damage.For the real right and the factual state of possession,the damage should be the actual damage that has already occurred,and for the creditor’s right,there should be a great realistic possibility of the damage,especially for the creditor’s right that has not yet been paid off,self-help by the victim should also be permitted as long as there is a substantial realistic possibility of harm.On the subjective level,it is considered that the limit of self-help behavior requires “Legitimate rights and interests”,which should not be retaliated for the purpose of protecting one’s own legitimate rights and interests,the purpose and the measures taken by the self-help behavior should be approximately the same and the general rational person standard should be adopted to judge the equivalence.The third chapter focuses on the analysis of “Necessary scope”and “Reasonable measures”.First of all,the “Necessary scope”of different measures are refined and clarified objectively.Among them,in the measure of detaining property,the value of the property is greater than the value of the right protected,but the question of whether the property is unique and indivisible is beyond the necessary scope is particularly discussed,it was concluded that such a situation should not be deemed to be beyond the scope of necessity.Secondly,in the determination of “Reasonable measures”,as to the measures for the seizure of property already specified in Article 1177,the author holds that the determination of“Reasonableness”of the measure should be based on the premise that it does not violate the law or public order and good customs,and that the determination of“Reasonableness”of the measure should be made from a dynamic perspective.As for the judgment of “Such reasonable measures”,it is considered that,on the premise of not violating the law or public order and good custom,it should include three typical measures of restraining personal freedom,recovering the debtor and destroying property,and on this basis,the rationality of the three measures is analyzed one by one.