On The Civil Self-help Behavior

Political state and civil society to distinguish is our thinking and the survival and development ofthe space-time background. Social control through law, modern law of one of the important functions, is tocreate conditions and provide institutional environment, through the recognition and protection ofindividual rights and freedom in full, so that each person to become an independent subject in rational,equal private autonomy and public domain implementation is benign and interactive, constructing thesocialist harmonious society. The law provides the right relief way mainly has two kinds: the relief ofpublic power and private relief, private relief should be a justifiable defense, emergency and self-helpbehavior constitutes a complete system, the self-help that help themselves, derived from human biologicalinstinct. From the view of rule of law of self-help behavior is the legal system to protect themselves orinstinctive Revenge of a legal confirmation, is in the legal framework order in the realization of the rightmethod of self protection. Through the legal norms of self-help behavior, is the rule and the fact, ideal andreality middle bridge a self-help behavior to solve disputes, play advantage of the initiative, control insettling the dispute because of the abuse of rights and the justice, in short, is that through the reasonablerules design limitations of self-help behavior abuse to achieve legal effect value and justice valueunification.This paper firstly civil self-service behavior concepts, think to want to clear the self-help behaviorand other private relief way difference, strictly limit the extension of self-help behavior, must be clear inorder to save the request right for the purpose, to correctly handle the self-help behavior and the relief ofpublic force, Ninglian self-help behavior of basic elements, a clear implementation mode among theelements of logical, clear self-help behavior is a factual behavior, and then put forward the self-helpbehavior refers to the subject of rights for the preservation of its claim, cannot get relief by public force, orin the general community under the concept of no need to force the public to seek relief, independent adoptprogressive relationship compulsory measures on harm to personal or property influence in order to makethe right back to the original state of the factual act. Based on the foreign law civil self-service behavioranalysis, we found that, before the legal age of brutal revenge factor with the progress of human civilizationis progressively desalt, in modern period, whether civil or common law, the civil self-service behavior validity to a certain degree of recognition," German Civil Code" more on the civil self-service behaviorelements made clear list. The legislation is the social development the reflection of reality, China since thereform and opening up with the rapid development of the social structure and individual autonomyconsciousness plays a tremendous role in promoting, self-help behavior is the instinct of human nature iscannot evasive problem, is the human nature is good or evil of human nature of Presupposition inexplaining human behavior of the tolerance of the theoretical starting point, self-help behavior and therelief of public force delayed compared, with more obvious efficiency value, and the institutionaleconomics from the rational perspective, the system design should also be based on human natureefficiency benefit maximization realization process. With the construction of a legal society is adapted,self-help behavior to the civil subject self protection initiative, mobilize the equality between the main bodyof the struggle for the rights of the enthusiasm, broaden the rights of the individual justice, and realize theright to restrict the power of purpose. Based on the present situation of our country, in the formulation ofcivil code in the process with an open mind to confirm civil self-service behavior validity.In this article the author discusses the civil self-service behavior requirements, adhere to the"system of civil law enforcement" principle, using civil legal relationships as academic research guidingideology, the self-help behavior constitutes a subdivision for the purpose of elements, the main element,form element, method, limit elements elements and timely application requirements, avoid the self-helpbehavior of self-help behavior self-help behavior, pay attention to the civil law and real right, creditor’srights, infringement claim articulation. And discussed the civil self-service behavior and related systemssuch as self-help behavior and lien, self-help behavior and the person in possession of the wherewithal toretake right, self-help behavior and act of self-defense self-defense and necessity of distinction andconnection, further expounds the unique value of the civil act of self.On the civil self-service behavior standard design, this paper argues that not only in the law of tortliability exemptions of the narrow scope, and should be in the civil code of civil act of self made generalprovisions, the rights in rem, creditor’s rights, tort liability for legal system of self-help behavior mayappear in the course of problems make specific provisions, the general rules and type combination of thecivil self-help behavior system standardization and systemization. And with the civil self-service behaviorelement analysis combining the elements of right of claim, through this connection point and the basic theory of civil law has connected. China’s current legislation on civil self-help behavior system makes aprovision, in reference to the foreign legislation and domestic scholars have suggested that the draft of thepremise, this paper puts forward the method of self-help behavior system design opinion. It should also beof civil act of self setting procedural rules, according to the different civil dispute case different securityprocedures, in violation of relevant provisions of civil self-service behavior not only have to bear theconsequences of the civil substantive law, but also bear the civil procedure law sanctions, to the civilsubstantive law and civil procedure law perspective to the full realization of unification civil self-servicebehavior legal effect.