The Studying Of The Self-help Behavior

Self-help behavior in this dissertation denotes the behavior that is taken out by the force of or in the form of individual or the union of individuals to correct the judicial nonfeasance or the delay, when the obligee is in the state of incomplete right or incapability of implement or injury, or the behavior that seek remedy without lawful procedure. The legal foundation of self-help behavior is the existence of substantive legal right. The repudiation of obligor or the passive rejection and positive evasion of tortfeasor, which endanger the right of oblige, are the conditions of the self-help behavior, however the failure of ask help from the government in urgency is excluded. The cognition of an ordinary person is used to judge the qualification of a specific self-help behavior. Self-help behavior should be made in proper form with a declaration of the purpose and claim, to the one who is going to receive the self-help behavior. This declaration needs no government arbitrament. Expect that the one who is going to received the self-help behavior hold objection. If so the one who is going to received the self-help behavior sent the dispute to the government, which judge the justification of the self-help behavior according to the fact. If it is justified, it must be authorized, otherwise rejected. Self-help behavior could be of individual as well as union which is founded on the base of joint interests. The object protected by self-help behavior should be the rights or interests which belong to the one who takes the self-help behavior his own. Under some circumstances, though, the interests of the others or the society is protected simultaneously, self-help behavior only for interests of the others or the society does not belong to the category of self-help behavior.Self-help behavior could be classified into different categories according to different standards. They mainly are self-help behavior for right remedy and self-help behavior for realization right; legal self-help behavior and illegal self-help behavior; violent self-help behavior and nonviolent self-help behavior; procedural self-help behavior and substantive self-help behavior; individual self-help behavior and aggregative self-help behavior; defensive self-help behavior and aggressive self-help behavior. These classifications interlaced and associated to some extent.In the terms of jurisprudence, the base of self-help behavior mainly rests with the theory of Natural Right. The right taken by all the common people is gradually recognized, from which the theory of "human rights are endowed by heaven", which include the notion that everyone is justified to protect and remedy all his substantive rights. The self-help behavior is the externalization of this notion. There were all kinds of self-help behavior in the primitive time of human society, such as consanguineous revenge, duel and homeostasis revenge or peremptory repossession and the right of the victim to chosecompensation or revenge. All these forms show that the will and the behavior of individual prevail in the protection and the remedy of rights. With the accretion of the power of the country, the forms of the protection and the remedy of rights changed. The national will is enforced while individual will undermined, public violence having replaced the individual self-help behavior, hence, became the dominant form. In the light of historic development the relationship between law and self-help behavior has experienced three phases, which are the complete recognition and authorization, gradual limitation and. finally, completely prohibition. We hold that in the future the new phase of lawful recognition of self-help behavior with moderation. We believe the future mode of right remedy should be of both self-help behavior and hetero-helping which includes public remedy and private remedy.In the terms of economics, the functioning of law and the protection of rights relies on the social costs that they consume. Compared with the formal judicial remedy, self-help behavior has the same motive as judicial remedy. Their distinctive disparity in profit and cost, even in the degree of convenience, however, has a great influence on the choice made by people when they has some kind of dispute to solve. Both the empirical and the academic researches have made clear that there are all kinds of diseconomy with public remedy, which mainly are the difficulty and the numerous cost in foreseeing the result, the incredulity of judge aroused by judicial corruption, the sacrificed substantive justice caused by the bias of procedural justice, the obstacle of limitation period, and the practical gulf between the lawful institution and social reality. Those factors prevented the judicial remedy from achieving its result anticipated. The subjective demand and the room for self-help behavior, hence, are set hold.Self-help behavior is done to satisfy the need of individual esteem and sensibilities. The impulsion and emotional need for revenge set the primitive foundation for modern system of law. Though it has transformed into public remedy of the power of the country, they have the same origin, only differing in their respective executors.Chinese people, born with the peace-loving nature, have the cultural tradition of harmonization. The powerful agnation and family relationship create the non-contentious mode for civil social affairs. And, in China, society weights more the factors of moral judgment, pursues the ultimate aim of substantive justice. Law and its practice must fulfill the requirement of moral standard, otherwise they can hardly syncretize with the social activities. Self-help behavior is the common means used to protect and compensate the civil rights. It is done to oppose the illegal individual and business entity or to supervise the government officials. And, what's more, it is to facilitate the social credit, cultivate the sense of independence and responsibility, compensate the disadvantage and limitation of public remedy organization.Since the self-helping right is yet to be legislated for, it can be categorized as natural rights or the rights ought to have. Only after its legislation, could it categorized as legal right. Self-help right in this dissertation denotes the inalienable natural right that is entitled to natural person or artificial person to be exercised and defended by their own force with their own means and is to be legislated for. It is of relativity, remedy, instrumentality, complementarity, economics, non-procedure obscurity and dynamic nature. It should be legislated for in the civil law. Hence, the obligee could claim the right without much proceeding inconvenience and the misfeasance of the obligor and tortfeasor could be hindered.The actualization of social justice and the protection of social order are the two crucial value of self-help, in order to deter the abuse of it, the exercise of self-help right should subject to certain conditions, which include a) the existence of given substantive right, b) the obligor's unfulfillment, c) after the notification, d) a comparative peaceful way to achieve so, e) the propriety of the self-help behavior and the right, f) the subject of self-help behavior is available to be enforced, g) the declaration of intention of self-help behavior, the conditions of collective self-help behavior include: a) a number of person voluntarily uniting into a group on the base of joint interests or shared faith, b) carrying out the self-help behavior on the base of joint interests or shared faith of the members, c) mainly taking peaceful way, d) some compelling threaten as supplement e) written declaration to the obligor before self-help, f) the propriety of the self-help behavior and the right.The standard for suitability of self-help behavior mainly rests on whether the result consists with the aim of justice and equality, the propriety between the purpose of self-help behavior and the tort. And the res should be available to be enforced. The institution of self-help should be legislated for in the civil law of China. The validation of it will facilitate the perfection of defensive and exercising mode of civil rights, improve the protection of the legal rights and interests of both natural and juridical persons and provide more remedy mechanism. Further more, it will clarify the boundary between legal and illegal activities, ensure the implement of self-help, help the judge to deal with the cases related to self-help . Ultimately the legislation will motivate the initiative of people to protect and exercise their rights, establish the authority of law and assist the judicial departments with the efficiency and the reduction of social cost.As for the mode for the validation of self-help, in China we could adopt the integrated mode of written stipulation in law and validation in the judicial precedent. On one hand, the 'Civil Code' could stipulate the self-help right; on the other hand, the judicial precedent could function as complement when there is a limitation of law. Relying on the exercise of self-help right, the legal limit of self-help will be graduallyclarified. The private exercises provide the practical support for the transformation of the function of government, realize the social justice, promote the legal procedural protection, and enhance the law-abiding sense for individuals.The force for right remedy is derived from the fact that everyone has his own mental and manual dower, and has his instinct of self-conservation and family-conservation. The primary executor of this force is an individual or a group of individuals (family or association). After the establishment of the nation, according to the faith of social contract, individuals transfer the endower to the public organization, conditionally and partly. Then the executor has enlarged its sphere including the individual, the group of individual and the organization of public power. The original resource of self-help right of public power organization is the alienation of the endower of every individual. Therefore, there is a law of conservation of self-help right functioning during the process of allocation and alienation between individuals, groups and the nation. As long as the remedy of the public power organization is efficient and timely, there is no need for the remedy of the other two forms, and vice versa. However the two extreme situations only exist theoretically. The practical allocation of the self-help right is quite intricate, between those three, because of their respective sensation towards law and different executive ability.The validation of individual self-help right and its proper exercise will boost the establishment of harmonious society. The Central Committee has put forward goal that "insist on the concept of' human first', strive to build the socialistic harmonious society", which accord to the long-term tendency of social development. This provides room and nutrition for the development of all kind of social power, bridges the gap between individual and government by alleviate the tension between them, and also create the shield against the invasion of the power for individual. At present, a large number of people appeal to the higher authorities for help. Some of them are aimed at the governmental violence. The increase of collective and emergent affairs, the enlargement of the scale of disputes and conflicts and the aggravation of the contradiction, all these indicate the increasing demand of right. They are the embodiment of the self-help behavior. They have urged the academicians and statesmen to attach enough importance to these problems, rectify the improper administrative measure, assure the people the legal interests; conciliate different private right in order to realize the harmony amount individuals, supervise the operation of the national power to realize the harmony in social administration, and finally realize the harmony amount nature, individuals and the government.This dissertation has seven chapters of 190,000 words altogether.