Discussion On The Legal Application Of The Civil Self-Help In China

As an important means to protect the legitimate rights and interests of civil subjects,private remedies have been recognized by both theoretical and practical circles.But before the Civil Code of the People’s Republic of China(hereinafter referred to as“The Civil Code”)came out,our country’s legal norms only clearly stipulated the self-defense behavior under the private relief system,however,the self-help behavior under the system of private relief has not been clearly stipulated,which has also caused the predicament of no legal basis in judicial practice,to a great extent,self-help acts in the maintenance of the legitimate rights and interests of civil subjects to play a role.It was not until January 1 that the Civil Code first 2021self-help as a form of tort exemption,article One Thousand,one hundred and seventy-seven of the Civil Code clearly states that when the lawful rights and interests are infringed,the victim can perform civil self-help actions without incurring tort liability provided certain conditions are met.This provision fills the gap in the legislation of civil self-help behavior,not only consummates our country’s private relief system,but also provides the legal basis for the judge to try the civil self-help behavior type case in the judicial practice.However,since the Civil self-help Act is included in the Civil Code for the first time,not only the legal provisions are somewhat general,but also the corresponding judicial interpretation has not been issued to provide theoretical guidance for judicial practice.By consulting and analyzing the judicial cases concerning civil self-help acts since the implementation of the Civil Code,it can be clearly found that there are some outstanding problems in the application of civil self-help Act in our country,such as the disunity of the identification standards of the constitutive elements of civil self-help Act,the unclear legal liability provisions of improper Civil self-help Act,and the bad link between Civil self-help Act and civil execution procedure.Based on the above-mentioned background,this article will adhere to the problem-oriented,based on the judicial cases after the Civil self-help Act is incorporated into the Civil Code,this paper analyzes the outstanding problems in the application of civil self-help in our judicial practice and puts forward some pertinent and practical suggestions,with a view to improving our legal system of civil self-help behavior,to give full play to the value of civil self-help behavior to contribute a little.