Research On The Self-help Behavior In Civil Law

Self-help behavior is a kind of centuried and modern way of right remedy, from the ancestral form like blood revenge to the mordern form such as the use of violence to recover the tenanted house, self-help behavior almost runs through the whole history of the human civilization after awakening. In our country, the self-help behavior was still a the civil law provision until the period of the republic of China. However, since the establishment of People’s Republic of China, self-help behavior has been out of the law, and with the lack of legal and reasonable regulation, the spontaneous self-help behavior became disordering,which caused serious social problems. Now the Forth Plenary Session of the 18 th CPC Central Committee proposed to strengthen the construction of legal system of the market and compile the civil code, which provides a new opportunity sign the self-help behavior into law.This paper is divided into three parts, in which the concept and constitutive requirements of the self-help behavior, the necessity, reasonability and its institutional suggestions are discussed in detail. In the first part, the self-help behavior is divided into natural concept and legal concept. The natural concept states the essential attribute of the self-help behavior. That is self-help behavior allows one to achieve his right only by himself.While the legal concept is prepared for the Civil Code in the future. In addition, the self-help behavior is also compared with the counterpleaing right of later execution, the right of concurrent performing counterargument, the counterargument right for security and the lien. In the second part, the rationality and necessity of the institutionalization of self-help behavior are discussed The self-help behavior happens throughout the human civilization and can be proved right with the theory of the humanistic psychology and the legal economics. Self-help behavior is based on the most basic needs of human and conforms to the Maslow’s hierarchy of needs. Under certain conditions, it can be far more cost-effective than the public relief. Its necessity is visible in the poor condition caused by lack of self-service system in the law. While the poor condition is proved by the analysis data of 100 relevant cases, six of which has been discussed in detail. In addition, the relevant research in America has been introduced for comparison and reference. At the last part, I offer some proposals of the institutionalization which involve of the legislative intent and the status of the self-help behavior in the future civil code. Self-help behavior should be a kind of way to relieve right rather than a deraignment excuse. It should be stipulated both in the civil law general provisions and specific provisions.