Real acts of self-help - Right dimension of self-protection and realization of

Keywords:: self-behavior, claims, remedies, types of

Summary: Real Property self-relief self-help is one way of protecting property rights from the "spontaneous order" at home. Property Law self-help actions are consistent with the value of justice and efficiency of the basic concept of institutionalization is to ensure that Real self-justification of the premise. the traditional Civil Law theory of self-help behavior without discrimination provisions of the Civil claim relief in the system, the right to ignore the absolute and relative power differences in terms of self-realization, self-help behavior of the system is not conducive to the protection of the property to play its unique features. type of reasonable regulation of property rights and self-help guide the choice of system behavior. <<Property Law "> should be provided for protection of property rights in the property the general provisions of self-help, and in the ownership, possession and security interests protection and realization of self-help to create a separate legal system of property rights to avoid self-abuse to Law and order act the negative effects.



I. Introduction: Self-property behavior of relief mode

The primary function of property Law is to determine the ownership of the property to calm the conflict and strife, [1] Property (property rights in real life are more vulnerable from a number of specific obligations are not subject to competition and abuse, to the detriment of social and economic order, stability, and only access to the possession of resources and use rights, property has its principal, and the right to exclude others from infringing on their property or seize, property owners have the confidence and motivation to invest resources to develop wealth. [ 2] the legal relations in the property, every member of society in order to obtain the material necessary for survival data, are likely to engage in three activities: production activities, predation, defense activities. [3] simply a mere ownership of property rights representation with the oath, the ultimate goal is to ensure the right of realization of the right, when the aggrieved property can not be realized or placed in danger, the construction of relief models of effective property rights and property law has become a particularly important task .


Real relief, including public protection and private relief in two ways. The so-called public relief, is the right person requesting state through legal procedures and public authorities to protect their rights, a way, it is the product of the further development of human society When the state public power gradually developed, becoming more and more laws, the rights of individuals to progressively by the state to protect public power, public relief gradually developed. [4] and the corresponding public relief, private relief is when rights are violated or can not properly achieved, the rights holders the means of the use of self-protection or self-realization of the rights of the remedies, the specific way of private relief, including defense, Rescue and self-help behavior. Under the existing property relief model legislation, public power relief in an absolutely dominant position, enacted in 2007 <<PRC Property Law "" (hereinafter referred to as <<Property Law "> or even private relief on the property as specified in the judicial practice, the property of private relief application of law can only be invoked <<Republic of China Civil Code "" (hereinafter referred to as <<Civil Code "> s 128,129 defense articles and the relevant provisions of the emergency. Buffet legality though not formally recognized by the existing legislation , but in practice people's courts have recognized. [5] However, the existing system of private relief legislation does not eliminate the neglect of private relief acts of the objective existence of a large number of walk on the edge of private relief legislation, especially self-help Interrogation of the legal acts of justice and maneuverability. On the one hand, "<Civil Code"> in self-defense system does not sufficiently cover all kind of state property defense, for example, the right to possession of defensive behavior with self-defense and self-dual power source, on the other hand, the special claim of the right determines the nature of property rights protection in the implementation of self-help behavior and self-help behavior claims there are differences, the general provisions of civil law acts of the general provisions of the Civil Self-property protection and implementation in difficult to operate. Property acts as a protection of property rights self-help approach has its unique value targets and mechanisms, however, should not be the legitimate right of self-help and self-abuse of the outer boundary clearance will not be able to meet the requirements of legal stability . self acts as the right people or have been violated can not be achieved when the instinct, the law prohibits forced only lead to two extremes: on the one hand, public relief for those difficult or impossible to achieve the rights of the victims only can "afford the right look", which leads to the weakening of the power of the law, on the other hand, when the reality of self-help behavior can not be completely avoided, people out of this self-preservation instinct may be to adopt a more extreme way to achieve their rights, which result in more serious damage to social order. property as a system of self-help behavior, "double-edged sword" in the efficiency and security, justice and order, hovering between, therefore, build self-help behavior rigorous system of property rights By law, the role model and guidelines to regulate behavior on the self-help and guidance, the property of self-help type of behavior and institutionalized party for the legislative choice of the best.


Second, the property law should set up a system of property rights self-help behavior

(A property and the institutionalization of legitimate self-help behavior

1. While the property value of self-help actions are consistent with the basic concept of law

Protection of the law or should be legal protection (the value of the existence of such necessity, we will call it "legal value", the overall value of various laws, but also be abstracted as the so-called "justice." [6] accompanied by legal permanent basic value is social order. [7] the law is a synthesis of order and justice, if we want to effectively pursue their goals, so obvious, we must rely on our actions to others do they actually have done the expected and the consistency between, because our plan is to do our actions to others based on the kind of expectations. [8] as a sexual rights of the world, property rights protection and relief to others reflects the inviolability of property and ownership or possession of the instinct of self protection, this is a spontaneous orderly pattern to this spontaneous order, we are able to influence only its abstract aspects, namely through the development of relevant rules of conduct to improve and guidance to avoid deviation from the righteous path. Right from such self-help behavior is "spontaneous order" among the legal inability to Right to take the absolute prohibition of self-reliance means exclude their property to the prejudice or eliminate hazards. For Real self behavior, we should not disturb the order of the law on the basis of appropriate intervention and control, and to some extent, limit those who may lead to unjust results of the power, that acts by limiting the abuse of property to achieve self-help law and order and justice, the value of the value of unity. Aristotle believed that if a rule of justice everywhere have the same effect, then it is "natural." [9] is the property of self-defense and self-help defend their property rights, human instinct, but a just system of natural law but the most fundamental basis, it is by those minimum standards of fair and reasonable composition, without which there can be no viable legal system. but on the other hand, the concept of justice is included by a particular political and social system that the norms and principles of justice, regardless of the norms and principles in a whether a formal source of law has been expressly recognized. [10] For example, for the security set in the walls of barbed wire and broken glass and other barriers are legitimate acts of self-property, but if you set the trap grid, or other deadly acts constitute self- abuse. Again, in order to prevent the purse was also stripped of rats placed in the package is a folder or a needle acts of legitimate self-property, but if the folder or the needle in the rat poison on the smear would constitute acts of self-abuse. the implementation of improper self-Property behavior, the consequences of property shall bear legal liability for damages, so the legitimacy of property except self-help behavior into account human nature, the need to recognize that the irrational and destructive human impulse to social harm that may result from , and the institutionalization of property rights is the self-help behavior through the force of law to control these impulses.


2. Real acts of self-justification efficiency value reflects the basic requirements of law

As a basic concept in economics, efficiency is this: the input from a given volume to obtain the maximum output with minimum consumption of resources that achieve the same effect more or the same consumption of resources to achieve maximum effect. [11] method can be understood as the efficient cause individuals to take the behavior of the incentive system, the method of evaluation criteria is to promote optimal choice efficiency benefits. [12] in the United States, most are in the court of private disputes outside the settlement (usually estimated in all the disputes were only 5% of the final judge, [13] private rights disputes, whether the procedure is often based on the entity "to avoid the court" in the form of proper channels through extrajudicial solution. [14] Thus, in terms of efficiency, property rights self-help behavior than public relief and help reduce litigation and the relief of tired and not economic phenomenon. shows that public protection is implemented property rights protection and the most "powerful" way, but not necessarily the most "effective" means the following specific reasons: First, the cost of the larger public remedy, the parties choose to go through the Court of First Instance, second or even a retrial, in the process the parties will spend some time and money , for some circumstances are not very serious damage, the parties to litigation outweigh the benefits. Second, the results of public remedy the difficulties often encountered difficulty in enforcement, leading to real property can not be achieved. Third, when the urgency of the situation, the parties often too late to seek national authorities to protect and help, waiting for public protection may give property bring irreparable damage. Fourth, property disputes, real property disputes and more particularly in residential areas within, adjacent to each other for real estate, real estate all or possession of the formation of a relatively close between the neighborhood, the open public remedy for such a relationship can easily cause a fatal blow to the establishment of harmonious residential district.


If people choose self-act is property of "economic man" driven by its nature, the pursuit of maximum profits, then the property self-help behavior standardization and institutionalization of the interests of the parties is an effective means to reach equilibrium. This is because, " self-interest "has always been the nature of human existence, as people's" selfish "nature of a fundamental self-love is always provided for people who, when the specific interests of the face can not solve the love relationship between themselves and love others, do not also produced the phenomenon of justice. [15] Hume's "theory of evil human nature," tells us that people's selfish nature led to civil entities do everything possible to seek for their rights, therefore, in the design of a specific legal regime, to force subject to the "greed" in a limited range. The law must act to implement self-help people clear the fact that the property: if their "selfish" act that goes beyond the legal norms for the scale, they can not achieve they pursue their goal of "maximum benefit", but most likely "down the drain." behavior when the property is limited to a self-help law to control the time range, the behavior of people realize their own interests in maximizing also increases the social benefits: First, the lawsuit will not only bring real burden of the parties, the court will also have the human, material expenditures, resulting in the increase in the cost of the whole society, and secondly, the low-key self-help behavior, privacy features also a certain extent, reduce the property to private relationship dispute the negative effects and thus promote the healthy development of harmonious social relations, once again, if the legislation on the creation of property rights 自助 taking calls for laissez-faire attitude of the attitude, the most likely cause of law "out of control", and affect the stability of social relations. For these reasons, the property law is necessary to conduct self-service system of property rights set down in the codes, and build the appropriate supporting systems to avoid self-abuse of the right.


(B acts in the civil code system of property rights in the self-position

China's current law there is no express provision of civil self-help behavior, but in judicial practice, the behavior of people in the urgency of the situation, too late to request public remedy the situation, take self-help measures to avoid or mitigate their property or personal rights violations, often by the social customs and public opinion approval. legislators also come to realize that behavior has a certain self-spontaneous law, the law even if the ban can not change much the situation of its objective, appropriate use of force necessary to permit private place in society no right, therefore, the law of self-help behavior progressive, conservative and prudent to accept the future in our Civil Code, to establish a reasonable system of self-help behavior and trends of the inevitable choice legislation. <<Civil Code "> no behavior of the self into being tort liability exemptions, but the academic behavior through self-defense that has the emergency listed as private relief three specific ways, this architecture is also the civil law countries infringement Liability is usually taken by the legislative model. Some academics have also advocated self-help behavior from the traditional tort law defenses taken out into the Civil Code - "the exercise of civil rights and protection" be provided in a separate chapter. [16] In my opinion, The starting point is to solve the dispute clearly the primary function of self-help behavior is to avoid responsibility for the realization of rights or obligations. and self-defense and defense of the emergency function, compared with self-help behavior more initiative, more on the realization of rights directly and fully, but these reasons are sufficient to break the traditional tort liability system has yet to be further explored. But one thing is certain, if to break the self-help behavior Logic in the original system of tort law and its independent status , we must act on the self-concept and the extension to be re-defined, self-classification of the acts need to be more refined and scientific.


Currently, scholars generally agreed that the right of self-help behavior only for the request. [17] However, the relative weight relative to the nature of the debt claim, the claim is not based on the original property rights (the absolute right of self-generated claims, but in the original rights (the absolute right to have rights are violated, so the absolute nature of the right to claim relief. [18] shows that claim of the right to establish property rights have been infringed on the basis of property rights as a property absolute right to subject, from which represents the interests and reflect the perspective of survival, the most feasible, or the possibility of Property Act, property rights and the arbitrary exercise of the feasibility of property relief. In other words, the concept of property rights "conduct of range" is said, have included the feasibility of including self-protection. [19] Therefore, the significance of self-help behavior of creditors is specific performance of debt relative to its claim to be successful in the realization of expected benefits, and property rights self-help behavior more emphasis on property rights of people of their property to protect themselves, people on the property, encroaches upon the property and who is not much difference. Typically, creditors can only be self-help behavior "on the people not Matter", owner self-help behavior is "right people on the matter" and therefore, the law should allow the property to take a more direct or active means to protect their rights.


Case I: person A to see the thief forced open and has been riding his bike to escape, to catch a taxi, down the thief, back bike.


Case II: person B to buy a bicycle in consultation with others, and pay models, agreed to pick up the car three days later, three days after the breach of contract and refused to return the other vehicle, person B see Founder riding on a new car, then submitted seized by force.


In the first case, the person A the right to exercise self-back, self-help behavior is legal, while in the second case, the person B's actions constitute infringement and may even violate the criminal law. Is also a self-help through violence, but because of self- behavior is based on the different nature of claims arising from the different legal consequences. So, in future civil code system, the construction of civil self-behavior system should take into account the relative power and absolute right to exist in the rights of the difference between self-realization. I believe that the general civil code should be set in the general conduct of civil self-concept, on this basis, the establishment of a separate property in the property law system would be more conducive to self-conduct the substantive law of property act reasonably self-regulation.


Third, the property rights system of self-help behavior in the construction of the Property Law

(A property of the general terms of self-behavior relationships and types of

Behavior of the so-called self-help the general provisions of property, is defined as self-property behavior of the system is the core position, acts of all property-based self-help legal norms. The so-called typed, is the Real Property Law to specific acts of self-made requirements. in the formulation of the determinants of law to be the first case, it is envisaged that the use of explicit elements, the effect of the rules of the exercise of the criteria. [20] Real Property Law to establish the purpose of self-behavior system focused on the objective existence of the property rational behavior of self-regulation, self-help behavior to avoid the abuse of property rights point of view, the type of behavior can be self-content of the specific property, that is clearly defined property law behavior of the specific property for self-help premise, the exercise of the right of way and the boundaries of self- . However, the simple list-style legislation will also have some problems: the unexpected nuisance property and diversity of self-determined behavior of property and arbitrary nature of instinct, without any conditions to provide for specific property of a missing elements and rules of self-help behavior is almost impossible, even if reluctantly provides the number of rules will be very large and difficult to ensure that it does not contradict each other. Therefore, we must act to develop the general provisions of self-property specific property of self-rule to be added general terms and methods listed in the legal materials are not always mutually exclusive, they can complement each other. [21] It should be noted that the property of self-help type of behavior is defined in general terms the type of under, with the general provisions of law in a way constitute a special relationship with the general law. [22] This means that only when specific acts of self-service system of property rights is not clearly defined or can not apply to the case of analogy, the general provisions to be invoked solve the problem. This is because the tendency to be easily moved out of general terms, once formed, will make the type of behavior to avoid self-defeat the purpose of abuse, the judge may disregard the existing rules already established constraints, arbitrary exercise of discretion, and its The results will lead to acts of legitimate self-help process of property by a fatal blow.


On general provisions, the specific design, I believe that property rights can be defined as self-property behavior of the general terms of self-help behavior system: the so-called self-help behavior property, protection of property rights refers to the property or the realization of human property claims, if necessary When the power of an individual or group relief or to achieve rights. where necessary to include three cases: first, unable to get assistance from state organs, and second, if self-help measures are not taken, the request is blocked or there is realization of the right the risk becomes difficult to achieve, and the third, self-conduct did not constitute infringement, or infringement of the legitimate rights and interests of minor violations.


(B self-ownership protection act

In the property system of ownership is the best embodiment property Recourse rights, however, the Public Credibility Principle, in good faith to obtain such systems under the impact, "<Property Law"> for the protection of transaction security at the expense of ownership of the recovery and effectiveness of the due attention. I believe that, "<Property Law"> The primary function is to determine the ownership of the property, and protect the rights of indigenous people's interests to maintain order and stability in the property, it should be <<Property Law "> value of one of the objectives pursued. Therefore, in the title chase and effectiveness, "<Property Law"> should adopt a "dual track" to achieve dynamic security protection and the dual static security, while the latter would have enjoyed greater emphasis on the protection of the interests subject to exclude any others to recover wins. [23] under certain conditions to give the owner the right to self-recover, recovery of ownership and effectiveness of the system to achieve the necessary one. and the right to recover possession of different owners recover their property do not strictly follow the "instant access back "principle, in addition, the protection of possession of property law to possession of the real state of the general purpose, that is limited to the direct possession of protection, and indirectly, for there was no room for the right to recover possession. In general, the law limits indirect possession exercise of the right back is necessary, for example, a bike storage in the B Division, it was taken away from the bike, where B, a C at A rode their discovery, then take back by force. Here, A's conduct was not reasonable self-help, because i can not tell where C is from B to snatch a bike, but a C should have the right to temporarily detained for questioning or to wait for C and bike handling public security organs. Another scenario, if peer A and B found C riding by, B C is the spot to identify the person to snatch the bike, then a right to pursue wins. based on self-possession acts of self-ownership behavior and the difference, "<Property Law"> ownership should be divided into self-protection and possession of protected behavior of the system, to highlight the title chase and effectiveness of protection in the important function of property.


1. Owner's right to self-recover

Relative to the civil law countries, common law actions in self-owner of the domain can be applied to more general law, in theory and judicial affairs for private role in the realization of rights to be adjusted to encourage and provide a more effective system and case support. <<United Kingdom Civil Series>> 177 provides that: "the right real estate people, when necessary, starting a violent grab it, but for the possession of the land, whom not use violence." in the Anglo-American law Similar acts of legitimate self-help provisions, is also reflected in the "lease back" and "back action property" aspects. The former means that, subject to certain conditions, allow the lender, the lessor uses a limit on force. that First, the parties do not confirm their ownership of the court, nor its responsibility appropriate enforcement actions, which also allows the right of people to use moderate force to recover his personal property taken away by the infringer without being liable for civil liability. [24] and then such as the U.S. "mortgage holders to recover," they recall those employed in banks and retailers can not be returned due installment loan collateral or goods, without disturbing the peace and threats to personal safety of others to take the premise of a secret means to recover loan collateral, so it is protected by law known as the "thief." Furthermore, "" American Restatement of Torts>> specified in the conditional sale and purchase (conditional sale), if the buyer delays payment, Seller shall not enter the premises to take back the property the buyer, unless otherwise agreed between the parties. the provisions of <<Property Law "> set up with the owner the right to self-reference back, especially to retain the contract for the ownership of the seller the right to self-recover provides a reference implementation. the so-called back the seller the right to refer to retention of title transactions, in breach of the buyer has a specific, causing damage to legitimate rights and interests of the seller, the seller from the buyer at law entitled to take Back to the subject matter of the right. [25] <<People's Republic of "Contract Law" (hereinafter referred to as <"Contract Law"> section 134 provides: "The parties agreed to a sales contract the buyer fails to pay the price or other money obligations, the ownership of the subject matter belong to the seller. "However," "Contract Law"> does not specify the right of the seller's back, it does not require exercise of the right to retrieve and procedure. I believe that theory from the possession of , based on their meaning and the owner of the indirect possession of movable property shall be used as movable property negates the right to recover all of the restrictive conditions for the exercise. This is because, the owner of personal property temporarily away from its direct management control of the collar and made decisions based on the expected consequences of the behavior may be caused by deviation from the intended target based on reasonable judgments, ownership separation in their power to enjoy the benefits of ownership at the same time, the risk should bear the corresponding transactions. However, if the owner in possession of their property set up indirectly at the same time, agreed to direct the person in possession under certain conditions, the right of self back, without violating the law and public order and morals of the premise, the owner of the agreement can serve as a basis for self-movable property back. to give owners and direct possession of people agreed on the right of self back to the appropriate legal effect, not only can solve the relationship between the owner to retain ownership of realization of the right back problem, but also by analogy applies to leasing, borrowing and other means in accordance with the owner of the established indirect relationship between self-possession of the owner the right to exercise the back. It should be noted that this agreement the right to self-recover the full indirect possession must be the premise of the system, the existing <<Property Law "> indirect possession of the lack of protection of the legal system, the concept of delivery, retention of title, and even the title chase and the realization of the effectiveness of specific systems such as loss of the necessary institutional support. Therefore, in the "<Property Law"> in the establishment of the owner of the right to self-recover, you need to complete System associated with coordination to meet the <<Property Law "> Logical self-sufficiency.


Owner's right to self-title chase back and effectiveness of the most direct expression, "<Property Law"> should confirm its justified, but the exercise of the right to recover ownership of self-reliance should be subject to reasonable regulation. And the right to recover possession of the self-comparison , the owner's right to self-recover shall meet the following conditions: (1) the right to recover the object of self-ownership should be movable property, (2) to recover movable property owners should follow the principle of instantaneous back, unless the situation urgent, no time to recover rights will be difficult to achieve in the future, (3 self-ownership right to object to retrieve personal property or malicious possession of illegal usurpation of himself, if the possession of personal property by a third person, the owner shall not exercise its right to self-recover, unless there is evidence The third person knows that the movable property in its possession from the illegal usurpation of others or malicious possession, (4 self back in the exercise of ownership rights should be taken before the necessary means to urge the return of relative real estate, (5 if the owner of personal property is based on their own mean direct possession by others, the owner shall not exercise the right to self-recover, the parties agree otherwise or unless otherwise provided by law, (6 to recover movable property owner may not take unnecessary or deadly force.

Links to Research Papers Download http://www.hi138.com 2. In order to investigate the rights of detained property

In "" American Restatement of Torts>> in that right is expressed as a "privilege to detain for investigation", the main owner of this privilege (shopkeeper design, including: (1) temporarily detained (detain) the goods, (2) will be placed inside or near the goods, (3) a reasonable suspicion that a person is a thief (theft); (4 purposefully reasonable investigation (reasonable investigation). If the plaintiff refused to cooperate with the owner of the above acts, then the owner has the right to use non- deadly force. [26] It is noteworthy that, with different privileges movable back, out of consideration the characteristics of owner occupation, the U.S. tort law allows the owner to make reasonable investigation to determine the error. [27] related to the U.S. system of tort law repeatedly made in recent years to address the supermarket of search, shopping search and other disputes provides a new idea, I believe that the property owner to exercise the right to detain should meet the following conditions: (1) the owner has good reason to believe that the illegal possession of their property relative , (2) In taking actions detained until the owner shall show that the relative status of its owner, (3 relative to the owner who refused to cooperate with the reasonable investigation, (4) the relative who may not search the body, (5) shall not resort to violence or violence does not cause serious injury relative to the personal, (6) shall promptly notify the public when necessary authority to intervene.


(C possession of self-protection act

1. The right to possession of defense

The right of possession of defense, is subject to infringe or prejudice in the possession, the possessor to be defensive in their own strength. [28] the right of possession from the Civil Defense act of self-defense and self-help principle, the former is when the public interest, others or himself personal or other interests of the aggrieved, the behavior of a person to take defensive measures. [29] <<United Kingdom Civil Series>> 180 provides: "lawful possession of any land who came to their land for the unscrupulous other movable property or animals, such as the owner of the chattel or animals in a reasonable period, do not move it out of the land who, land owners, may seize and detain the movable property or animal, and may require students because of obstruction or damage claim. "[30] the principle of self-defense based on civil law, when the person in possession of the property management and control of the state are being violated, may take possession of the means of self-defense self-defense. and self-defense than in the possession of self-protection and implementation of the field, civil actions for self-service room for wider and more diverse means. This is because self-defense is limited to violations that are taking place on the defensive, and no nuisance of possession for the room. For example, the typhoon will be temporary, on the first floor, second floor balcony hung on a structure caused by safety problems, in a timely manner and on the second floor residents can not get in touch with the situation, on the first floor with a rope or wood can be removed hazardous materials, to exclude The property occupies a real danger. In addition, the person in possession can also occur for the future risk of non-reality of the defense, such as walls or laid on the broken glass set up around the barbed wire in their own vegetable garden and so on.


To prevent unlimited expansion of the right to possession of defense shall be bound by its necessary. Tong said that if infringe or prejudice from the original possessor, can not be defensive, because the original occupant of the hijacked or prejudice the exercise of the right of defense, recover the right to private relief act, not a legal prohibition of private power. But if the original possessor more than the necessary limits and scope of the act, can their defense, this time prohibiting the existence of private forces. [31] In addition to restrictions on defense objects, The author believes that the exercise of the right to possession of defense must meet the following constituent elements: (1) time urgency and potential for harm. time is the urgency, if the person in possession does not take defensive measures, will suffer irreparable damage. The potential for harm includes both actual harm also includes possible hazards. (2) the reasonableness of defensive measures and appropriateness. occupier during the defense, should be taken to non-violent way, that if violence is not rights can be achieved, it may not resort to violence. For example, treatment of the intruders forced entry into their property, should be adopted first verbal warning, you may not use lethal weapons causing damage, of course, if the warning is more likely to have caused defense much harm is another matter. In addition, there is no obvious warning labels, the possession of real property shall not in others within the setting may cause significant harm to the trap, security agencies and bodies. (3) The sound of defensive behavior. the so-called defensive harmless behavior, and is referring to the defensive behavior was not illegal to cause damage to the infringer, or minor damage, violent behavior is no longer the defensive line. For example, in the modern residential area, the removal of obstacles to the possession has constituted a part of everyday life owners, for example, to remove from the small ads on the home will be stacked in front of the debris removed from the garage, off into its own small courtyard or terrace pets, etc., the above-mentioned acts of infringement defense little effect on people's interests, there is no need to resort to public power.


2. The right to recover possession

The right to recover possession of the person in possession is to be infringing upon the rights of self-back possessions in order to restore the original possession of the state's rights. Relative to the right of possession of defense, the possessor to exercise the right of possession to recover possession of a more positive and proactive protection, However, the person in possession should be "immediately" exclude offenders and recover, in the case of movable property should be "local" or "track" back to the offender. "instant" non-means instant, but rather by general social attitudes, the implementation of back minimum time required for a possession. "locally" means the person in possession at the time was hijacked, in fact, whatever the spatial extent of lead pipe. "tracking" refers to the fact that the offender Although the person in possession to leave the space within its capacity range of pipe collar, but chase chase track is still in the possession of people. [32] in order to prevent abuse of the right to recover possession of self-reliance, self-possession to exercise the right to recover must meet the following conditions: (1) the person in possession to recover act must act in progress or in occupied just ended, or who is in occupation of the chase phase, that meet the "instant recovery" principle, otherwise, return of property must be taken consultation, or through public relief to achieve. In addition, the person in possession of the catch must be seized in time of with continuity, if the person in possession or in the middle to stop chasing wins and back to do other things not related to property, shall not be seized to recover afterwards. It is worth noting that if personal property is not the fault of the person in possession of real property into another person on The possession of movable property shall be taken into the land of others by peaceful means to recover the chattel, and such access is not subject to "instant recovery" principle of limitation. For example, cat owners can take a reasonable approach a wonderful reflection of a neighbor accidentally ran yard pet cat. (2) shall not regain possession of their voluntary possession of the property by others, such as hosting to other people's property. (3) to recover possession of the right to exercise the occupation must be first asked to return the property, only if the requirements rejected or ignored the case, to be able to self-recover. (4) the possessor acts of self back and usurpation of behavior to be roughly the same extent, and shall not infringe upon the personal cause significant harm, deadly force unless the other party to take .


(D security interest in the protection and realization of self-help behavior

Self-protection behavior in the security interest in the system design and implementation should be considered in two ways: on the one hand, a security interest from the property because of its foundation, established to ensure that creditor, Qian Wenyi above, the absolute and relative power in the right differences in self-protection rights, so the creditor a security interest in its principle of self-protection claims should follow the general rules of self-help behavior. Of course, the lien and the direct possession of the collateral by the pledgee, applicable to the protection of self-possession Act. On the other hand, in the main Upon the expiration of the unpaid or agreed by the parties appear to achieve a security interest in the case, the security interest of people to choose which way is more conducive to ensure the completion of secured transactions, and to the maximum extent transaction costs on the economy, should become manifest in the security of property rights system where the self-help behavioral function.


<"American Uniform Commercial Code>> states that" the debtor after default, Secured Party may have the collateral or control of collateral, but not contrary to public order (breach of peace for the conditions. "Observing the provisions of the Protection of the debtor and the third The premise, the owner can either sell security collateral and pay off its secured debt Variable price, but also to retain the collateral cover the secured obligation. [33] based on a lengthy and cumbersome procedure, and the high litigation costs and implementation fear of cost, these countries have changed in other countries in order to protect the rights of the guarantor guarantees the right to require collateral in possession of the court before the judge to be the practice. They believe that this practice is not the only way to protect the interests of the Guarantor . in the possession of the collateral to be applied after the procedure can also provide adequate protection of the interests of the Guarantor. [34] such as the provision of a security right in selling the collateral must be notified prior to the guarantor, the notice must inform the guarantor as guarantee of the right by债务而赎回担保物.此外,担保权人必须向担保人和次位担保权人提供出卖担保物的账目、已收到的款项、费用支出、分配款项的方式以及剩余的款项.[35]我国<<物权法>>第195条规定:"债务人不履行到期债务或者发生当事人约定的实现抵押权的情形,抵押权人可以与抵押人协议以抵押财产折价或者以拍卖、变卖该抵押财产所得的价款优先受偿.""抵押权人与抵押人未就抵押权实现方式达成协议的,抵押权人可以请求人民法院拍卖、变卖抵押财产."第219条第2款规定:"债务人不履行到期债务或者发生当事人约定的实现质权的情形,质权人可以与出质人协议以质押财产折价,也可以就拍卖、变卖质押财产所得的价款优先受偿."第236条第一款规定: "债务人逾期未履行的,留置权人可以与债务人协议以留置财产折价,也可以就拍卖、变卖留置财产所得的价款优先受偿."由此可见,我国<<物权法>>规定担保物权人如果与担保人就担保物权的实现不能达成一致的,担保物权人可以请求人民法院拍卖、变卖担保财产,即选择公力救济的途径来实现自己的权利,但<<物权法>>并没有绝对禁止担保物权人非经诉讼程序行使其权利.因此,自力救济在实现担保物权方面有适用的空间,担保物权的自力实现强调交易便捷,能更好地保护担保物权人的利益,与担保物权设定的目的相合.德国、日本实务上发展起来的让与担保制度,旨在规避法定的繁杂的设定和实行方式,降低担保交易成本.其中,让与担保在实行途径上多采自力救济.但自力救济的制度缺陷也相当明显,仅依担保物权人的意思就可占有、处分担保财产,对于债务人和第三人而言往往保护不周.在采行自力救济途径实行担保物权时,应为担保物权人设定相应义务以保护债务人的权利,如制度设计合理,则对双方当事人均有利.[36]

(五不动产相邻权保护与实现中的自助行为

在物权法体系中,相邻权是一个比较特殊的权利,尽管有学者对相邻权的提法存有异议,认为相邻关系是一种独立的法律规则,不属于所有权的具体权能,也并不产生一种与所有权等并列的具体权利类型.[37]但不动产权利人在处理关于截水、排水、通行、通风、采光等方面的相邻关系时,确需与之相对应的具体权利作为依据.与针对于所有权及占有的侵夺和妨害行为相比,侵害相邻权的行为并不直接指向不动产本身,而是导致不动产权利人无法圆满实现法律赋予其的因利用不动产所能达到的目的和取得的利益,这些利益既包括财产利益也包括人身利益,因此,相邻权自助行为应有别于所有权及占有保护中的自力救济.根据相邻关系的具体内容,自助行为在相邻权保护与实现的具体运用上应区分为以下两种情况:一方面,如相邻权的权利指向为相对方的不动产权利,即相邻权的实现建立在对他人不动产权利限制的基础之上,如相邻通行、管线安装、防险、排水、通风、疆界、土地临时占有等关系,一般而言,权利人只能寻求公力救济途径来实现相邻权.另一方面,如果是不可量物对相邻权造成的侵害,则受害人可以在法定条件下实施自助行为.所谓不可量物侵害,是指致害人以光、噪音、气味等无形介质为媒介对他人的财产或人身进行的侵害.[38]在此情形下,侵害相邻权的行为与环境侵权行为构成责任竞合,对不可量物侵害相邻权的行为可援引侵权责任法中环境侵权的相关规定进行具体操作.综合上述两种情况,笔者认为,在完成民事自助行为制度在民法体系中的逻辑架构前提下,为节约立法成本,可以不必在<<物权法>>中专门设立相邻权自助行为制度,但相邻权的自我实现应符合民法一般自助行为法律制度的正当性要求.




Notes:
[1]王利明:<<物权法研究>>,中国人民大学出版社2004年版,第58页.

[2]汤勇:<<物权请求权功能性价值分析>>,载<<甘肃政法成人教育学院学报>>2007年第i期.

[3]周林彬:<<试论物权保护>>,载<<山西大学学报>>2000年第11期.

[4]赵峰:<<私力救济的法理分析>>,载<<北京理工大学学报(社会科学版>>2001年第3期.

[5]二审判决书中指明,"上诉人进行正常的生产经营活动,被上诉人无理阻拦并导致纠纷,上诉人的行为属于合法的自助行为".参见<<"崔华然与苗果人身损害赔偿纠纷上诉案"山东省东营市中级人民法院民事判决书>>[(2008)东民一终字第137号],载北大法律信息网:http://vip. chinalawinfo. com/newlaw2002/slc/SLC. asp? Db=fnl&Gid=11.

[6][日]川岛武宜:<<现代化与法>>,王志安等译,中国政法大学出版社1994年版,第246页.

[7][英]欧得·斯坦、约翰·香德:<<西方社会的法律价值>>,王献平译,中国法制出版社2005年版,第45页.

[8][英]哈耶克:<<法律、立法与自由>>,邓正来等译,中国大百科全书出版社2003年版,第54页.

[9][美]E博登海默:<<法理学—法律哲学与法律方法>>,邓正来译,中国政法大学出版社2004年版,第286页.

[10]前引[9],第297页.

[11]张文显:<<法学基本范畴研究>>,中国政法大学出版社1993年版,第273页.

[12]季卫东:<<追求效率的法理>>(代译序,载[美]波斯纳:<<法理学问题>>,苏力译,中国政法大学出版社1994年版,第3页.

[13][美]罗伯特·D．考特、托马斯·S．尤伦:<<法和经济学>>,施少华、姜建强等译,上海财经大学出版社2002版,第325页.

[14][日]田中英夫、竹内昭夫:<<私人在法实现中的作用>>,李薇译,法律出版社2006年版,第10页.

[15]唐代兴:<<利益伦理>>,北京大学出版社2002年版,第317页.

[16]<<中国民法典学者建议稿>>第8编第23条规定:"在自己的合法权益受到不法侵害,来不及请求有关部门介入的情况下,如果不采取措施以后就难以维护自己的合法权益的,权利人可以采取合理的自助措施,对侵权人的人身进行必要的限制或者对侵权人的财产进行扣留,但应当及时通知有关部门.错误实施自助行为或者采取自助措施不当造成损害的,应当承担侵权责任."参见王利明主编:<<中国民法典学者建议稿>>,法律出版社 2005年版,第512页.

[17]"自助行为所指向的自身权益应是能被实现的合法请求权".参见李莉、陈泽锋:<<对抗民事侵权的自我救济 —<论自助行为的设立>>>,载<<广西社会科学>>2005年第5期."自助行为的要件之一为保护自己合法的请求权,且该请求权可以被恢复".参见苏贺新:<<论民法上的自助行为>>,载中国知网(中国优秀硕士学位论文全文数据库吉林大学2007年硕士论文.

[18]丁海俊,周玉辉:<<论我国绝对权救济模式的立法选择>>,载<<政法论丛>>2008年第3期.

[19]周林彬:<<物权法新论—一种法律经济分析的观点>>,北京大学出版社2002年版,第262页.

[20][日]山本敬三:<<民法讲义1>>(总则,解亘译,北京大学出版社2004年版,第24页.

[21][德]卡尔·恩吉施:<<法律思维导论>>,郑永流译,法律出版社2004年版,第151页.

[22]王利明:<<论侵权责任法中一般条款和类型化的关系>>,载<<法学杂志>>2009年第3期.

[23]王利明:<<动产善意取得制度研究>>,载<<现代法学>>1997年第5期.

[24]<<外国法制史>>编写组:<<外国法制史资料选编>>(上册,北京大学出版社1982年版,第408页.

[25]龙著华:<<论所有权保留买卖中出卖人的取回权>>,载<<法商研究>>2000年第4期.

[26]高建学:<<美国侵权法上判断过失的合理人标准>>,载王军:<<侵权行为法比较研究>>,法律出版社2006年版,第216页.

[27]Kionka, Torts by Edward J, pp. 163-171.

[28]覃远春、张旭:<<论占有的物权法保护>>,载<<贵州师范大学学报(社会科学版>>2004年第1期.

[29]王利明:<<侵权行为法研究>>,中国人民大学出版社2004年版,第555页.

[30]前引[24].

[31]前引[28].

[32]谢在全:<<民法物权论>>,中国政法大学出版社1999年版,第10页.

[33]美国法学会、美国统一州法委员会:<<美国统一商法典及其正式评述>>(第三卷,高圣平译,中国人民大学出版社2006年版.

[34]Louis F. Del Duca, etc, Secured Transactions Under the Uniform Commercial Code and International Commerce(Cincinnati, Ohio: AndersonPublishing Co. 2002) , pp. 130-138.

[35]Grant Gilmore, Security Interests in Personal Property (Vol. Two) (, New Jersey: The Lawbook Exchange, Ltd:1999),pp. 1233-1234
[36]高圣平:<<担保物权实行途径之研究—兼及民事诉讼法的修改>>,载<<法学>>2008年第2期.

[37]韩光明:<<民法上相邻关系的界定—兼论法律概念的制作>>,载<<北方法学>>2008年第5期.

[38]张平华:<<不可量物侵害的私法救济>>,载<<法学杂志>>2006年第6期. 转贴于 免费论文下载中心 http://www.hi138.com