Research On Civil Self-Help Behavior In China

With the development of social economy and the improvement of citizens’ legal consciousness,in order to balance fairness,justice and efficiency,civil self-help behavior has been formally included in Article 1177 of the Civil Code,which has become the cause of exemption from tort liability in the general provisions of the compilation of tort liability.Together with justifiable defense and emergency avoidance,it constitutes a systematic private remedy system.Before the promulgation of the Civil Code,"self-relief" or "self-help behavior" was often used in judicial practice,but no uniform application opinions were formed.After the introduction of the Civil Code,the number of civil self-help cases is increasing,but the single legal provisions only describe the applicable premise and circumstances of self-help,and simply list the measures that can be taken,such as the seizure of property.Therefore,there are still different opinions of judges and contradictory results in the judicial practice of self-help cases.To clarify the constituent elements of civil self-help acts,to specify the necessary scope of the limit elements and reasonable measures,and to clarify the procedural content of the act of applying for public relief after the event is an urgent problem to be solved in legislation,and also the focus of unified judicial application.This paper summarizes the case focus and court views of relevant civil self-help acts,explores the main problems existing in the judicial determination of civil self-help acts,and carries out a jurisprudential analysis on the constituent elements,limit standards of civil self-help acts and the procedural content of the application for public relief acts based on academic theories.On this basis,it provides relevant suggestions for the improvement of civil self-help acts.This paper consists of three parts:The first part mainly starts from the three relevant cases selected,and analyzes and summarizes the focus issues of the case according to the different views and results of the adjudication.The second part takes the focus issues of the above cases as the discussion center,and carries on the legal analysis of the content of each problem,that is,the connection analysis of the identification analysis,the limit analysis and the application for public relief after the civil self-help act.The third part puts forward suggestions on the basis of jurisprudential analysis.In order to unify the application of civil self-help acts,the Civil Code should clarify the constituent elements and applicable rules of civil self-help acts,define the necessary scope and reasonable measures in the limiting elements and give examples,and clarify the effect and operation procedure of applying for public relief after the event.