Research On The Self-help Behavior In Civil Law

The private relief stems from the anarchy of early human society, and it has been the only ways to relieve rights. Along with the progress and development of the society, the status of private relief was gradually displaced by public relief. In modern society, usually being considered as a barbaric, backward and uncivilized ways of rights relief, the private relief is often strictly limited or even forbade in laws of many countries. Owing to the inherent defects of the public relief, the private relief is still very important to the relief and protection of civil rights.As one of the main ways of private relief, the Self-help Behavior denotes the behavior taken out to protect lawful rights and interests by the obligee, in the case of urgentcy and the public relief is not available, in the form of individual to detain or restrict properties or freedom of the obligor. The laws of many countries have explicit provisions about the Self-help Behavior. Although it has not been stipulated in our country's current laws, the Self-help Behavior exists massively in daily life, and the value of it has already attracted the attention of most legists and legislators. However, scholars have intense arguments about the definition and conditions of the the Self-help Behavior, and they also can't agree on how to prescribe it in the civil code. Through comparative analysis about the domestic and foreign research and legislation of the Self-help Behavior , this paper defines the concept of the Self-help Behavior, expounds the necessity of establishing the Self-help Behavior System in the civil code, carrys on jurisprudence analysis and systematic study of the Self-help Behavior; and finally probes the legislation of the Self-help Behavior in our civil code.This article divides into four chapters in the structure. The first chapter mainly defines the concept of the Self-help Behavior , historically inspects provisions about it in the domestic and foreign legal system,and expounds the necessity of establishing the Self-help Behavior System in the civil code. The second chapter analyses the self-help behavior from the aspect of jurisprudence, it embodies the unification of respect and restriction of Human Nature, the unification of justice and order, the unification of efficiency and safety and the unification of private rights and pubic authorities. The third chapter mainly carries on systematic study of the Self-help Behavior from the aspects of basic conditions, legal effects,and the relations with Lien,Self-defense Behavior and Necessity. The fourth chapter puts forward the author's legislation proposals about how to regulate the Self-help Behavior in the civil code,and how to coordinate the Self-help Behavior with other related provisions in civil procedural law.Although scholars still have different opinions on the Self-help Behavior, they have reached a mutual recognition, that to further consummate our country's civil rights relief and protection system, the Self-help Behavior should be established in our civil code. This article hopes that the research on the Self-help Behavior may be beneficial to the legislation of it in the civil code, so as to further promote the protection of civil rights and the maintenance of public order.