Study On Self-help In Criminal Law

Self-help behavior is relative to the public remedy for the purposes of private relief acts of force, and it is the same as the self-defense. Both of them are a kind of instinctive reaction to emergency situations, and its validity has been recognized in most countries. In China, self-help behavior does not have its legitimacy. The self-help behavior always has objective and universal existence, and there is our blind area due to legislation and in the theoretical study of the weak, making the self-help behavior in the judicial practice difficult to have a unified model. This article attempts to save themselves from the following parties to conduct in-depth Analysis of the face, with a view of self-help behavior of states of emergency have a clearer understanding:Part one, through the Analysis of self-help behavior concepts, the state of emergency under the meaning of self-help behavior has been defined. Self-help behavior is divided into civil law of self-help behavior and criminal law of self-help behavior. The criminal law of self-help behavior, in my opinion, refers to the perpetrator in order to protect their legitimate right to the continued existence of illegal violations of the state and to be infringed the right to be able to be restored as a precondition for public power in the country too late to request emergency assistance, relying on their own strength, to take appropriate way to preserve or restore rights.Part two, the evolution of self-help behavior is described. Self-help behavior seen from the East and West are basically the same development path. Acts of revenge as a primitive form of self-help, in the foreign sovereign there can be universally recognized and acknowledged; With the development of the times, in order to overcome the negative drawbacks of revenge, maintenance group interests, and the East-West all made the need to limit the right of revenge; as the country public power begins to grow, private power of relief is gradually replaced by public remedy, and self-help behavior has gone from the limited to the evolution of the banned. But it is not completely banned, so it is still there, but is strictly limited. With the pace of human civilization, self-help act, by its own existence, is reasonable, and has appeared on the active social scene with public remedy.Part three,the reasonable basis of the self-help actions is analyzed. In the theoretical circle, proper behavior on the basis is monism and pluralism. The Monist is committed to seeking to justify the legitimacy of the unity of the subject of the upper basis, more representative of the doctrine are: theory against legal interest, theory about purpose, and theory on social equivalence. Through the various on the subject of justified we find that the doctrine of justification has a certain degree of rationality, at the same time with a certain one-sidedness, and some even still in the form of explanation does not reach the level of the substance of the legitimacy of the foundation. The author believes that the existence of self-help behavior has a solid ethical basis for the value of rights. Self-help behavior from mankind's most simple, the most primitive human relations reasonable, is formed in the history of social and ethical order of strength within the scope of a private relief act, and its existence relies on a profound ethical; rights are the foundation and source of power while waiting for public remedy will make protection of the rights which can not be or have obvious difficulties in emergency situations, fighting for the right to have a desperate act of self-help under the legal basis to justify; And for justice, the ultimate value is the value of law , to build acts of self-help to justify the value of the foundation, while the illegal distribution against the destruction of social justice, is to play a corrective justice function of self-help behavior even in emergency situations to be timely for the loss of justice and restoration.Part four, the behavior of the establishment of self-help element is deeply analyzed. In order to release the concern of some scholars, the author points out that, through the establishment of conditions for self-help behavior of a clear regulatory system, self-help behavior not only does not cause abuse of rights, endanger the safety of France, but can also possess under its own to justify its justified base to better protect the legitimate rights of people to help themselves to achieve a fair value of the law, safeguard the authority of the law. We should analyze specific issues. In general, the reply should be against the rights necessary in a very limited way, whether for personal or property and the implementation of self-help behavior, and self-help behavior can not cause the death of others, unless others act in violent resistance, but also the degree of damages should be compatible with the resistance level. In addition, in order for the implementation of self-help for the physical act, you should consider the use of search, detention, intimidation and other violations to a lesser extent on the personal rights of way.Part five, through the analysis we find that self-help actions are included in China's Criminal Law of the necessity and feasibility of proposed legislative acts of self-help ideas and suggestions. As the characteristics of self-help conduct its own characteristics, as well as acts of judicial practice in the treatment of many errors in self awareness, self-help behavior makes the recognition much-needed legal and regulatory system in order to provide a clear judicial practice of legal basis. Therefore, I propose the general provisions in the Penal Code criminal law provision which should be after the addition of a section 21 on the self-help acts. Taken into account, the self-help in our country to act into law the case which can be considered from the Criminal Law is a spirit of article 269, which points out the fact that this is a self-help behavior of sub-rule method of recognition, but not in a timely manner the provisions of General Principles only. But after all it is limited to theft, fraud, and rob and the three kinds of criminal acts can not cover all the occasions to help themselves, so the correct approach is to act as soon as possible in legislation to achieve self-help behavior, so that it can be clearly stated in the General Principles and has its due status.