Criminal Acts On The Self-help Category

Western proverbs said "Remedy Precedes Rights; A right without remedy is notright". It can be seen that rights and remedies are inseparable. In the early stage of thedevelopment of human history, the way of remedy is mainly presented as privateremedy, e.g."a tooth for a tooth, an eye for an eye". Admittedly, private remedy as ameans of dispute resolution plays a vital role in a very long historical period. However,due to the lack of an effective protection system, private remedy was usually beingexpanded by the parties for the pursuit of self-interests maximisation. Fair andimpartial as the spirit of remedy was hard to be achieved. Social order was beingtrampled. Thus, with the development of human society, especially after theemergence of the country, pursuit of order makes the legal remedy proceduresbecoming more and more complete and perfect. Revenge and private remedy aregradually replaced by penalty and public remedy.Throughout today’s countries performing rule of law, all private remedies areprohibited or restricted to ensure the realisation of the legal order and have peoplefollow the rule of law as a habit. However, public remedy has its inevitable defects,such as personnel restriction and procedure restriction. Therefore, the governmentalauthority in real life cannot carry out timely and effective remedies for eachinfringement, which has provided for a space of the existence of private remedy.Therefore, the research and explore of private remedy have both theoretical andpractical significance.Self-help is one of the private remedies, which is one of an important theory ofthe criminal law. The legislations and legal theories in many countries in the world arereferred to self-help. For example, in civil law countries such as Germany and Japan,self-help is an exemption of illegal behaviors which is beyond the prescriptions oflaws. Common law countries treat the self-help behavior as a legitimate defense.South Korea even makes it clear in its criminal laws that self-help, together withself-defense and the emergency action, statutory exemptions of illegal behaviors.Currently our country has many researches on self-defense and the emergency actionwhich are clearly recognized by its criminal laws. However, there are relatively fewtheoretical researches on self-help. The legislation is also blank in this area. Therefore,the author would like to do research on the necessity, feasibility and constituentelement of self-help based on the domestic and foreign scholar’s research results inthis area and relevant foreign judicial practice, which is expected to provide certaincontribution to our criminal legislation, our theoretical research and our judicialpractice in respect of self-help.