Judicial Cognizance Of Chinese Civil Self-Help

With the continuous development of the economy,people's sense or concept of rights have been greatly awakened and publicized.Especially,individualist awareness and tendencies have become stronger.On the one hand,people started to get confused about the implementation of civil self-help behaviors in the absence of law: Many "Lao Lai" who owed money did not pay back,so if you happen to catch this person,can you detain his car or other property? If you did,will you have to take tort liability? When encountering customers who eat overlord meals,can the owner detain the property of them? Will it in turn be sued by them for infringement of property rights? In real life,when the right holder is infringed on his own legitimate rights and interests,and it is too late to ask for protection from the state organs,there are often cases in which he takes measures to protect his or her legitimate rights and interests against being sued by others.On the other hand,the frequent occurrence of such problems reflects that people need civil self-help.Civil self-help behavior is obviously spontaneous.Although it is a reasonable behavior recognized by social habits and public opinion,it may be recognized as a tort due to legal gaps,bearing legal responsibility,and exclude its legitimacy.In addition,because the law does not stipulate it,the parties and the judicial organs often fail to understand and misunderstand civil self-help behaviors.In trial practice,the lack of legislation has led to divergent opinions on how to identify and handle civil self-help behaviors.Courts also have different attitudes towards civil self-help behaviors.Judges often fall into an embarrassing dilemma.In specific judicial practice,two tendencies have emerged.One is that some judicial organs believe what is not stipulated in the law should be directly excluded from application.Even if the parties invoke civil self-help acts to defend them,the courts directly evade it and exclude its application.The second is that some jurisdictions think as long as the perpetrators' purpose is legitimate,they should be exempted,so the verdicts usually support civil self-help behavior.However,there are also a lot of problems when recognizing civil self-help behaviors in practice.Although some courts do not quote the term "civil self-help behavior",they actually support this statement.And some of them explicitly quote "civil self-help behavior" in the judgment as the basis for the judgment,but the criteria for identifying civil self-help behavior are also different.Similar behaviors in similar situations may cause completely opposite results.For a long time,the courts have serious differences in the identification and treatment of civil self-help behavior in judicial practice,which has brought many unnecessary troubles to the judiciary and the parties.Therefore,from the empirical point of view,this article will use cases and relevant theories to discover the problems in the judicial cognizance of civil self-help behavior,then analyze the reasons for the inconsistency,and explore the legislative and judicial paths to solve the problems.In order to better study the issues related to the judicial cognizance of civil self-help behavior,the author collected and screened over 100 related typical cases from Official Website of Chinese Referee Documents.It is hoped that through the combination of judicial trials,problems will be better identified and suggestions made accordingly.Through the analysis of theory and specific cases,the author finds that the civil self-help system is not stipulated in China's current law,which makes the legality and legitimacy of civil self-help behavior controversial in both academic and practical fields.Civil self-help behaviors are commonly quoted in this article,but the definitions of self-help behaviors and torts are ambiguous,and there are many problems with the concept of civil self-help behavior,application of laws,and cognizance of limits.The existence of the above problems has resulted in different judgment standards for different judges in similar cases in judicial judgments,which makes the court often appear different judgments on the same cases in the process of handling related cases.In view of the above problems,the author will put forward relevant legal suggestions and look forward to making up for the shortcomings in this regard.