Study On Self-salvage

Self-salvage, refers that during the continuing violations, in the state of being difficult to timely protection and restoration of rights under relying on the public relief, depends upon own strength to restores the rights. As one of personal relief, self-salvage has the merits of rapidness and little-cost, then, whether in the countries with perfect system or in the country with lagging legal system, self-salvage has the realistic basis of existence. Because of the differences in the legal developments, correspondingly there are differences in the way of endorsing the legitimate of the self-salvage. The South Korea endorses the legitimate in the Penal Coda, and Germany in the Civil Coda. In the common law countries, the legitimate of self-salvage is considered as the defend reasons. The theory was widely recognized in judicial. Self-salvage is not proclaimed in the criminal law of China and is usually called the reason of not crime in the theoretical circle. Self-salvage, justifiable defense and urgent danger prevention are all legitimate subject. More attention is paid to justifiable defense and urgent danger prevention than self-salvage. This state makes the affairs to have widespread doubts about the legitimate of the self-salvage. It is far from uniform treatment in the judicial practice. So it is necessary to analyze self-salvage completely. In the article, the author explores the theory, legislative judicial issues of the act of self-salvage from five aspects. The first part is the general statement on self-salvage. By analyzing and comparing the self-salvage and the private relief, the author point out it is important to study the subject. The second part is the foundation of that self-salvage is not crime. The way of self-salvage in the field of criminal law, is often looks as a kind of infringement, which apparently satisfy a certain constitutive elements of crime. Based on the right to self-salvage, the theories of "profit protects" and "proper ways serve society" will prove its justified ground. The third part is the conditions that self-salvage suits. The precondition of implementation of self-salvage is that right can not be resumed or not prominent and difficult to recover until formal procedure by the public succor in law, the means that the one adopts the way of self-salvage must be necessary and proper. The one should have the intention of saving oneself subjectively. The fourth part is the comparison between self-salvage and legal proper. Legal proper act in China includes justifiable defense and urgent danger prevention. Self-salvage and legal proper are same in essence, but the characteristic of self-salvage indicated self-salvage has independent status in criminal law. The last, the author advocates the legislation of the self-salvage. In the face of the problem and conflicts caused by self-salvage in reality, we should find the balance of the conflicting interests by the law. The author hope what in the paper will offer some suggestions for the systematic arrangement about self-salvage.