A Study Of Civil Self-Help Behavior

The Civil Code of the People’s Republic of China,which came into effect on January 1,2021,established the civil self-relief system in Article 1177 of the tort Liability Code,which was innovatively defined as a type of disclaimer.The system endowed self-relief persons with the right of self-protection under certain conditions,so that the doer could timely,effectively and reasonably protect his legitimate rights and interests.However,this regulation is abstract and general,which brings a lot of disputes to the academic circle,and produces a series of problems concerning the application of law in judicial practice.Through the analysis of the system related basic theories,through the empirical research,comparative research and other research methods to sort out the system related problems,and put forward corresponding countermeasures to solve the problems.Firstly,this paper compares and analyzes the attack theory,the right preservation theory and the public remedy exception theory,so as to conclude that the public remedy exception theory is more reasonable and conforms to the nature and positioning of self-relief.Secondly,this paper also explores the constitutive elements of self-reliance relief.Through the analysis of theoretical value and practical value and combining with the current mainstream theories,this paper holds that the constitutive elements of self-reliance relief include object elements,purpose elements,situation elements and limit elements.Thirdly,through the in-depth analysis of typical cases,this paper sums up several main problems of the current civil self-relief system:first,the application of circumstances is not clear;Second,the application of limit elements is not clear;Third,the subject of self-relief is not clear;Fourth,the responsibility for improper self-relief is not clear;Fifth,the wrong self-relief channel is single.Then combined with the domestic and foreign legislation status quo of civil self-relief system comparative study and analysis of the worthy of learning.Finally,this paper puts forward the corresponding countermeasures: first,clarify the situation conditions: mainly from whether there is urgency and whether to exclude the possibility of timely assistance of public power to discuss and analyze;Second,clear limit requirements: mainly from the detention of the obligor’s property,destroy the obligor’s property,restrict the personal freedom of the obligor,exclude the obligor resistance of these types of behavior,clear the corresponding limits of different behaviors,it is worth noting that self-relief behavior including but not limited to the above behaviors,all behaviors need to follow the principles of behavior equivalent,quality equivalent,public order and good customs;Thirdly,it clarifies the scope of application of the subject of self-relief act: combining the guiding cases of Supreme Law and the legislative purpose,it concludes that the subject of self-relief act is not limited to the right holder himself,and others can also establish self-relief act if they meet the conditions.Fourthly,it makes clear the solutions of improper self-help behavior under different circumstances: it mainly analyzes from three aspects:imaginary self-help behavior,excessive self-help behavior and abusive malicious self-help behavior.