Research On The Self-Help Behavior In Criminal Law

Self-help behavior, as an old private remedy before public remedy used, had been used universally in the society. In the modern world, in which public remedies are becoming more complete, whether private remedies still have the legitimacy? And what are the bases? If private remedy has legitimacy, how to position it in the criminal justice system, whether it should be included in China's penal system and how to design the system to ensure the existing criminal law theory is not destroyed and maximize the advantages of self-help behavior and to overcome the disadvantage of this behavior. These issues will be elaborated in this text. Besides introduction and summary, this text will be divided into four parts.Part one -- Definition of the self-help behavior. In this part, in order to have a macro understanding of the behavior, the author will discuss from three aspects, the definition the help-behavior and the features of this behavior-subjective good faith, objective harm, objective harmful, forms of illegal and the classification of the help-behavior.Part two-- Legitimacy of Self-help behavior. Since the late 19th century, experts have had two definitely opposed ideas on the legitimacy of the self-help behavior. Some deny the legitimacy; some affirm it and they advocates that self-help may not be a crime to deal with under the conditions strict limits. This paper believes that self-help has legitimacy and the basis of the legitimacy is a fundamental problem in the research. The author tries to discuss the legitimacy from two aspects-nature of the self-help behavior and the value of the self-behavior.Part three---Systemic position in criminal justice system. All the time, people have controversy on the behavior's position in the criminal justice system, such as Act action Doctrine, Defensive actions Doctrine, Legitimate Behavior Theory, expectancy possibility Theory, and Emergency Behavior Theory. This paper does not agree with those theories mentioned above. It believes that causes abstract criminals could be divided into Justifiable cause and Cause of non-imputability. To sort out the position of self-help behavior in criminal law theory is to identify the cause of it. After that, the author demonstrates that self-help behavior belongs to the justifiable cause, form the respects of the connotation, functions and establishment conditions of the two causes.Part four-legitimacy system design of the self-help behavior in criminal justice system. In this part, the author will explain that because of the serious consequence result from the lack of the self-help behavior in legal system in china, self-help behavior has the necessity of legitimacy. At present, the legitimacy of the self-help behavior has Super-regulatory Justifiable cause model, justifiable defense model, Emergency hedging model, and Stand-alone model to exclude social harm. Our country should adopt the last model. Then the author will demonstrate the necessary condition for the establishment of self-help behavior to direct the activities that maximize the advantages of self-help behavior in a reasonable limited extent.