民法自助行为制度立法刍议——兼评我国《民法典(草案)》侵权编第23条

Modest Proposal on the Self-help System in the Civil Law—— Also on the Twenty Three Item in the Draft of Civil Code Which Compiling and Editing illegally

自助行为是民法中的一种私力救济手段,在性质上属于事实行为。它的实施条件是:须为自助的目的,须因情势紧急来不及请求公力救济。它的实施原则是:须依法定方式,须在必要的限度内。它的实施方式是:扣留债务人财物,毁损债务人财物,扣留债务人人身,制止债务人对有义务容忍的行为进行抵抗。在实施自助行为后,行为人应立即申请有关国家机关处理。在错误实施自助行为的情形下,行为人应当承担过错的赔偿责任。

The Self-help behavior is a kind of private way of giving relief, which belongs to factual behavior in nature. The conditions to put into practice are: it must be a self-service purpose, also which requests too late to ask governmental relief according to the emergency. The principles of it are: It must be in legal way, it must be in a limitation. The ways to put into practice are: Detaining debtor's property, damaging debtor's property, detaining debtor, stopping the debtor to proceed resisting of the behavior that have the duty to tolerance. After putting self-help behavior into practice, the person should immediately apply for related governmental organs to deal with it. Under wrong situation, the person should take responsibility to compensate for your fault.