On Self-help Behavior System In Tort Law

As a way of relief by private power, self-help behavior system has already existed in the early human society. With the development of human society, the relief by private power once has been banned, but in some special conversations, the relief by public power can't protect people's rights and interests. Including the self-help behavior, the relief by private power once again is on people's horizon, and with the increase of self-infringement disputes related to the self-help behavior in real life, self-help behavior system raises the legal circles and general public's attention.The self-help behavior is a way to the right owner to protect their own legitimate rights and interests in an urgent circumstance when the right owner is too late to request the public remedy. It is an unlawful defense in tort law, and it is also a legitimate means of self-relief. Its origin dates back to the relief by private power in the form of'blood revenge'and'revenge of the same state'in human society.It differs from self-defense, emergency hedge, as well as liens and other means of protecting people's own interests. Therefore, when we regulate the self-help behavior, we should consider the purpose of self-help behavior, the body of exercising self-help behavior, the time limits, the ways of exercising self-help behavior, the extent of exercising self-help behavior, as well as the subsequent obligations and other factors. Self-help behavior, as the defenses in tort law, although the people who does the self-help behavior has given a certain amount of damage to others, but does not assume responsibility for infringement, so it has the legal effect of obstructing the illegal behaviors. The false self-help behavior does not against the infringement, and thus can not be recognized as the defense which negates an offense, therefore, it should be based on the consequences of false self-help behavior to assume corresponding responsibilities.In the process of building the self-help behavior system, other countries offer our country a lot to learn from their experience. Some countries define the self-help behavior in the'Civil Code'or other legal provisions, and some countries recognize the self-help behavior by the judicial practice, although they don't have the clear legal provisions on the self-help behavior. In respect of the legislative content, all countries make the existence of self-help behaviors'rationality clearly, but at the same time they carry out the provisions of limitations; In respect of the legislative style, some countries conduct self-help behavior in the general provisions of the'Civil Code'to be a general rule, some countries put the provisions on self-help behavior in the self-defense or exemptions sections in tort.However, since China has not haven the legal provisions on the self-help behavior system, and it is undoubtedly the lack of legislation in China. However, in judicial practice, self-help behavior system has also been recognized as the basis for judicial decisions. According to today's legislative trend and the reality of China's national conditions, setting the self-help behavior system has been with the corresponding legal basis, and is also in line with the development trend of China's judicial practice. With the continuous improvement of civil law, self-help behavior'role for relief is increasingly apparent in tort. In view of our country is preparing to put the'Civil Code'in the formulation, we should set up the self-help behavior system in the chapter of defense in the'Civil Code', so as to protect people's rights by providing a more rational way of relief, and further improve China's civil rights relief system.