Research On The Self-help Behavior In Civil Law

Self-help behavior in this dissertation denotes the behavior taken out to protect lawful rights and interests by the obligee, when he or she has no time to seek public strength relief or pubic strength is in nonfeasance, in the form of individual to detain or restrict properties or freedom of obligor, which is allowed by the law and social moralities. The self-help behavior belongs to the private strength relief in the nature, which is same of the act of necessity and the self-defense behavior.Usually, the self-protection is considered as a kind of barbaric, backward and uncivilized way to relieve rights. In modern nomocracy, many countries, based on the need of rights protection, prohibit the self-protection in principle, and implement the public protection. But owing to inherent limitations of the public protection, there are massive circumstances in the daily life to be urgent, in which the obligee requests the pubic protection without enough time. If the obligee is not allowed to adopt essential self-help measures, the rights and interests of the obligee will be cumbered inevitably. Therefore, the self-help behavior as one kind of the self-protection methods, receives the attention of legislators in many countries. Although there are no provisions about the self-help behavior in related legal system in our country, more and more legists and legislators begin to recognize values of the self-help behavior. However, regarding to the definition, constitutions of the self-help behavior, the scholars don't argue one. And they also can't agree on that whether the self-help behavior should be stipulated and how to prescribe it in the civil code. The provisions are not same in the drafts of the civil codes made by our countries legislators and scholars. Hence, this paper first inspects researches on the self-help behavior of scholars and takes this as the reference to define concept of it; then reviews legislations of various countries, analyzes philosophic foundations and necessity of stipulating it in our civil code; finally probes how to regulate it in our civil code.This article divides into four parts in the structure. The first part, mainly defines the concept of the self-help behavior and inspects provisions about it in the continent legal system, Anglo-American legal system and Chinese legal system. It is not difficult to discover that the self-help behavior origins from the anarchy of early time human society, and since the date of producing, it has not been stopped using; the second part has analyzed philosophic foundations of the self-help behavior. It is unification of dilation and restriction of human nature; it is unification of two kinds of values of the justice and the order; it is unification of pubic authorities and individual rights; the third part has discussed the constitutions of the self-service behavior. It mainly has the premise requirements, the subjective requirements and the objective requirements, and has discussed legal effect questions of implementation the self-help behavior; the fourth part has elaborated necessity of stipulation the self-help behavior in our civil law from five aspects, and has analyzed the provisions of it in drafts of civil code of, and put forward the legislation proposals for how to regulate the self-help behavior in our civil code.Although theoreticians and practicers of law have different opinions on the self-help behavior, they have mutual recognition that the self-help behavior should be established in our civil code. Establishment the self-help behavior in civil code and fully affirmation the values of it is the essential way for obliges to safeguard lawful rights. On this occasion of enactment of civil code, the author scans the necessity, rationality and its legal rules in the hope of benefiting to enactment of civil code...