The Study On The Behavior Of Self-rescue In The Criminal Law

As a way to relieve rights, the behavior of self rescue, opposite to relief by public force, has existed in the early time of human society. With the development of society, the behavior of self rescue was prohibited on one occasion, but the limitation of relief by public force in itself that when citizens'right has been infringed upon it can't be protected effectively in time results in the concern of the legal profession and the public, thus making it coming out into view once again.Just as justifiable defense, the behavior of self rescue is a kind of instinctive response whose legality is accepted by most countries. On account of the legislation blind area and the weakness of theoretical researches in our country it is very difficult for judicial officers to have a unified processing mode in dealing with the legal cases involved in the behavior of self rescue, which extremely weakens criminal law's indemnify function of human rights. As a result, the thesis tries to analyze the behavior of self rescue in criminal law in order to recognize and grasp the behavior of self rescue more clearly under the critical circumstances.The thesis falls into four parts besides the introduction and the conclusion.The first part is overview of the behavior of self rescue in the criminal law. This part states clearly the meaning of the behavior of self rescue in the criminal law and illustrates the development of it through discriminating the relative definition of the behavior of self rescue. The behavior of self rescue in the criminal law is defined as when there is no time for the doer to ask for public protection and if the doer does not protect his or her right in time and it is impossible or difficult for the doer to recover or assure the right after the infringe happens, the doer adopts the appropriate way to protect or recover his or her right depending on his or her own power. The course of its development shows that the behavior of self rescue as a way of private protection appears earlier than public protection. The development path of the behavior of self rescue in the east and west is approximately the same as each other on the whole, experiencing the development process from being advocated openly, being limited, being prohibited to coexisting with public protection. As the behavior of self rescue complies with the historical development tendency, we should value its existence value.The second part deals with the bases of justification of the behavior of self rescue. On the basis of reasonable factors about the behavior of self rescue discussed by comprehensive theoretical field, the author studies the bases of justification of the behavior of self rescue in a new angle of view. The reason for justification of the behavior of self rescue is mainly based on the solid ethics foundation, entitlement foundation and value foundation. The behavior of self rescue springs from humanity's plainest and most original human emotion, which is a kind of private protection formed with the development of history within the social ethics field and has deep ethics foundations. Right is the base and source of power. When it isn't possible to get the public protection or under the obviously difficult and urgent circumstances, the behavior of self rescue to fight for right has its legal bases at that time. Justice is laws'ultimate value. When illegal infringements violate justicial social distribution, the behavior of self rescue that plays justice function will properly recover the justice lost under the urgent circumstances.The third part refers to the conditions for existence of the behavior of self rescue in the criminal law. This part fixes the conditions for the existence of the behavior of self rescue clearly. On one hand, it prevents the doer from abusing the right without limit; on the other hand, it aims to protect legal rights of the doer of self rescue better. Suffering the illegal infringement, the doer must not go beyond the necessary limit or lead to the unnecessary harm in order to defend his or her legal rights under the urgent circumstances. When considering the limit to self e rescue, the doer should analyse according to different situations. Generally speaking, the doer should regard the necessity of making the infringed rights revert to the original state as a limit. In order to conduct the behavior of self rescue which is either aimed at person or property, the doer must not cause personal injury to the opponent except that the opponent makes resist force. However, extent of injury should be consistent with extent of resistance.The fourth part is the advocate of legislation of self rescue in our country's criminal law. This part puts forward conceptualizations and suggestions for the legislation of the behavior of self rescue through analyzing the necessity and feasibility to bring the behavior of self rescue into our country's criminal law. As a result of uniqueness of crime theories and muddledom of the cases about self rescue in the process of judicial practice, the behavior of self rescue is in urgent need of approval and regulation in laws. The author suggests that a rule relative to the behavior of self rescue should be added after the twenty first ordinance in the general provisions of criminal law. At the same time, because of the omission of the behavior of self rescue in laws, perfecting legislation of citizen's seizing right can be considered to strengthen the operability and make up for the defect of the behavior of self rescue depending on no laws to some extent. After all, there are some discrepancies between seizing regulation and the behavior of self rescue, so the right way is to realize the legislation of the behavior of self rescue and to stipulate clearly and give the due position in general rules.