Self-rescue Behavior In Criminal Law And Its Legalization

Self-rescue behavior in the sense of criminal law refers to the act of the actor relying on his own strength to restore his rights and not infringe on the new greater value in an emergency.Self-help behavior is different from legitimate defense and emergency risk avoidance,and there is also a big difference between self-help behavior in civil law.Self-help behavior is characterized by private(two-way),non-procedural,timeliness,subjectivity and damaging.In the sense of criminal law,the precondition for the establishment of self-rescue behavior is that there must be a state of unlawful infringement,and the right to be infringed may be restored;the subjective condition is to restore the legitimate rights and interests of the perpetrator;in the time of self-rescue,it can continue until the object The property right shall be transferred to the possession of good faith,and shall be strictly limited to the implementation of the situation;to the extent,the legal benefit of the self-rescue behavior shall not be significantly higher than the legal benefit of the previous infringement,and the means or behavior shall be equivalent.The self-rescue behavior stems from the reservation of the individual's natural rights after the transfer of the state under the social contract theory,and with the continuous complication of the development of civil rights in the rule of law society,self-rescue behavior can be used as a supplement to the field of national public power,even when the latter violates the social contract.When invading private rights,self-help behavior can become a bottom line relief guarantee against public rights.The essence of illegality lies in the violation of legal interests or normative violations.The establishment of violations of law is not conditional on the infringement of legal benefits(in accordance with the principle of legal benefit measurement)or the violation of norms(in accordance with the principle of social equivalence).Self-rescue behavior is in line with the principle of social equivalence and the principle of legal and trade-offs,thus preventing illegality.Moreover,once the self-help behavior exceeds the illegality,it can also establish responsibility to hinder the cause.From the value orientation of the law,the self-rescue behavior not only conforms to the order value of the law,but also conforms to the justice value of the law,and at the same time conforms to the efficiency value of the law.Criminal law legislation and related judicial interpretations have implied the legitimacy of self-help behavior and provided guidance for the legalization of self-rescue behavior.In substantive law,the self-rescue behavior of the stipulations of the stipulations should be adopted after the specific statutes of Articles 263 to 276 of the Criminal Law(excluding Article 276): in an emergency,the victim may be unlawful in order to restore the rights.Violation of people and their property to carry out self-help behavior is not criminal responsibility.Penalties may be mitigated or exempted if they exceed the necessary limits or cause significant damage.At the same time,the conditions for the establishment of self-rescue behavior should be clarified by issuing judicial interpretations.In procedural law,self-rescue behavior should be added as a discretionary non-prosecution.The problems that may be faced in the judicial application after the statutory self-rescue behavior are mainly that the self-rescue rules may be reduced to “zombie clauses”,the actual impact of the damage consequences on the final judgment may be too high,and there may be excessive consideration of the external factors of the self-rescue behavior..To this end,not only should the procuratorial organs approve the formalization of the arrest,review and prosecution functions,but also the mitigation of self-rescue cases should be realized.