Research On The Identification Of Civil Self-help Acts From The Perspective Of Civil Code

As an important part of the system of rights relief,civil self-help is divided into three stages in the history of its evolution.The first stage is the spontaneous birth of civil self-help as a means of rights relief with the emergence of the privatization of human society property.Later,as judicial power was monopolized by state organs,it was prohibited;To today’s conditional permission.Article 1177 of the Civil Code stipulates the constitutive elements and legal consequences of civil self-help acts,which provide the legal basis for civil subjects to realize self-right relief under specific circumstances.The establishment of this system has improved our right relief system.However,as the Civil Code’s provisions on civil self-help acts are too principled,they cannot solve all the problems existing in judicial recognition.Moreover,traditional studies on civil self-help act mainly focus on the necessity of system construction,and lack of specific recognition,leading to problems such as fuzzy boundaries and insufficient specific constituent elements in the identification of civil self-help acts in practice.Therefore,it is necessary to analyze the typical cases in judicial practice to clarify such problems.By combing through the existing research results,this paper clarifies the concept of civil self-help,and distinguishes it from related concepts to clarify the boundary of self-help behavior.Then it makes a detailed discussion of its constituent elements.Through the analysis and comparison of different theories,combined with the actual situation of our civil self-help behavior,it confirms the constituent elements of civil self-help behavior,which lays the theoretical foundation for the subsequent research.On this basis,the legislative process and legislative status quo of civil self-help behavior were sorted out,and then the judicial status quo of civil self-help behavior identification was empirically analyzed,and typical cases were introduced,and the focus of case disputes was concluded.In this way,the existing problems of our civil self-help behavior identification were summarized: the legislative provisions were too principled;Inconsistent judicial standards;The relevant supporting mechanism is not sound.Then the article studied the methods of Germany,Japan,America,and England on civil self-help,and summed up the enlightenment of our country.Finally,according to the existing problems of our civil self-help behavior,it puts forward countermeasures and suggestions for a specific purpose: Improve the relevant provisions of civil self-help behavior,including defining the scope of the behavioral subject and further clarifying the type of behavior of "reasonable measures".Unify the judicial identification standards for civil self-help acts,including the protection of legitimate rights and interests as the guiding concept;Unify the judgment standards of circumstances;Strictly follow the principle of proportionality to investigate the limit requirements.Improve the supporting mechanism for the identification of civil self-help acts,including improving the distribution mechanism of the burden of proof;Clarify the legal liability for failure to perform the obligations after the fact.This paper hopes to provide some reference for improving the identification of civil self-help acts.