Research On The Self-Help Behavior

Self-help behavior,as a kind of private relief,has positive significance in timely relief of rights,making up for the deficiency of public relief,saving social resources and realizing fairness and justice.However,due to the lack of legislation,the perpetrators cannot rely on self-help behavior to protect their legitimate rights and interests,and the people’s courts have no clear legal basis for handling cases of self-help behavior.Article 1177 of the Civil Code,which came into effect on January 1,2021,regulates self-help behaviors,responding to the people’s expectations for fairness and justice in the new era and the people’s expectations for strengthening the protection of rights.Regarding the nature and connotation of self-help behaviors,there are three main viewpoints in the academic circle: "offensive theory","public relief supplementary theory",and "rights preservation theory"."Right preservation theory" can more accurately describe the functional positioning of self-help behavior in the rights relief system.Self-help behavior,emergency avoidance and justifiable defense are three types of statutory exemptions and have certain similarities.In order to accurately understand the self-help behavior system and correctly apply the law,the article needs to first analyze the similarities and differences between self-help behavior and related concepts such as emergency avoidance,justifiable defense,and similar self-help behaviors(eg.lien).The key question of the theory of self-help behavior is what are the components of self-help behavior,but the existing research and related discussions are relatively brief.In the academic circles,there are many views but no mainstream opinion.Due to the absence of mainstream academic viewpoints and legislative deficiencies,when the court deals with cases of self-help behavior,there are situations where similar cases produce opposing judgments,which is not conducive to the protection of the legal rights of the parties and negatively influence judicial authority.Through the analysis and research of Article 1177 of the Civil Code,this paper argues that the constituent elements of self-help behavior are: the existence of an unlawful infringement state,the protection of one’s legal rights,the urgency of the situation and the lack of time to ask for public relief,self-help behaviour not exceeding the necessary limit,being permitted by law,public order and good morals.Timely request for public relief is only an after-the-fact obligation of self-help behavior,not a constituent element of self-help behavior.In the case of self-help behavior exceeding the necessary limit or wrong self-help behavior,the perpetrator shall bear legal responsibility,but the perpetrator’s responsibility may be appropriately reduced by referring to the provisions on excessive defense and excessive risk avoidance.In judicial practice,attention should also be paid to the retroactivity of self-help behavior and the relationship with the civil litigation preservation system.