论刑法范畴中的自救行为

On Self-Help Behavior in the Scope of Criminal Law

随着社会的进一步发展,犯罪行为呈现为多种方式的增加,某些情况下无法及时寻求公力救济或者此种情况下寻求公力救济已经对于受损权利无法挽救。因此一些时候,受侵害人会采取自救的方式维护自身的权益。但目前我国尚没有将“自救行为”同正当防卫、紧急避险作为正当化事由规定在刑法理论中,因为在实施中容易造成新的损害,必须加以特别的限制。同时,实践中频繁出现关于自救行为的案例引发了新一轮关于自救行为是否应当立法化的探讨。因此本文立足于对自救行为细致化的梳理,从而为自救行为是否能够立法化做进一步论证,以期能对自救行为有一个全方位的把握。

With the further development of society, criminal behavior presents a variety of ways to increase gradually into a trend of expanding the circle, some cases cannot seek public relief in a timely manner or such cases to seek public relief has been for the salvation of damaged rights has reached impossible. Therefore, sometimes, the aggrieved person will often take the way of self-help to protect their rights and interests. But in China’s current criminal law system, there is no “self-rescue” with self-defense, emergency hedge as a justification in the criminal law theory, because self-rescue in the implementation of the act is more likely to cause new damage, it must be required to impose special restrictions. However, at the same time, the frequent cases of self-help in practice have triggered a new round of discussion in the theoretical community on whether self-help should be legislated. Therefore, this paper is based on a detailed sorting of the act of self-help itself, so as to make further arguments for whether the act of self-help can be legislated, in order to have a comprehensive grasp of the act of self-help.