Research On The Identification Of The Criminal Law Of Self-help Behavior

After the rights and interests are infringed by illegal acts,the parties reject the intervention of public power and adopt various self-remedy methods to recover the rights and interests or recover the losses,which is common in practice.In most of the cases,the people in the party take it for granted that when their rights are violated it’s natural to respond with their own way.The act of criminal self-help arises at the historic moment and is studied as one of the reasons for preventing the violation of the law in the theory of criminal law.Because of the suspicion of violating the public power order,the establishment of criminal self-help is restricted strictly by the legal theory.However,in practice,it is not realistic to require the right holder to fully recognize the criminal legality of his act before exercising self-rescue.Therefore,in most cases,the behavior of the right holder does not conform to the constitutive elements of the violation of the law.When the self-help means adopted by the obligee do not conform to the requirements of the resistance of criminal behavior,how the judicial official in line with the concept of fairness,justice,law,how to follow the logical system to make a convincing judgment,need a lot of cases existing in practice and current legal provisions to conduct a systematic study and interpretation.We cannot arbitrarily explain the elements of the criminal self-rescue by breaking the law more loosely,so as to avoid the serious damage of legal order caused by the abuse of rights,we need to give a reasonable evaluation to the undue "marginal self-rescue".When the legal order is in conflict with the act of self-rescue in accordance with the concept of justice,it is necessary to explain the essence of the criminal law and evaluate the act of self-rescue in accordance with the value of fairness and justice.Based on the establishment conditions of the criminal self-rescue with illegal resistance,this paper,by analyzing the cases of the nature of self-rescue in practice,explains and identifies the excessive "marginal self-rescue behavior" in essence,and seeks the way out for resolving the contradiction between legal order and self-rescue behavior.