自助行为入典的法律风险及其防控

The Legal Risk of Self-help Behavior and Its Prevention and Control

权利救济方式大致分为公力救济和私力救济两种,在我国一般不允许私力救济,主要以公力救济为主。而自助行为作为私力救济的主要和常用形式之一,至今尚未有明确的法律条文规定,但如今频频出现公民自助维护自己合法权利的行为,造成了理论与实际衔接不紧的尴尬局面,且其在司法实践中的适用也具有模糊性和差异性。但在特殊情况下,公权力的救济可能不能及时提供救济,于是法律可以规定在一定的条件下,例外地允许民事主体进行私力救济,自助行为入典有其必要性与正当性,但也要对其入典进行一定的风险防控。

The rights relief methods are broadly divided into public relief and private relief. In China, private relief is generally not allowed, mainly based on public relief. Self-help behavior, as one of the main and common forms of private relief, has not yet been clearly defined by laws and regulations. However, there are frequent behaviors in which citizens selfmaintain their legal rights, resulting in an embarrassing situation in which the theory and practice are not tight. Its application in judicial practice is also ambiguous and different. However, under special circumstances, the relief of public power may not provide relief in a timely manner. Therefore, the law may stipulate that under certain conditions, civil entities may be allowed to perform private relief in an exceptional manner. Self-help behavior has its necessity and legitimacy, but also it is necessary to carry out certain risk prevention and control for its entry into the code.