在警务执法中的民事自助行为研究

发布时间：2019-01-25 20:07

【摘要】：民事自助行为制度对于警务执法具有重要价值,既可以维护社会秩序与正义,并补公力救济之不足,又可以帮助警务人员在行使公权时判定当事人行为的合法性。关于自助行为的判定,应当坚持"五要件说"。首先,行为人应当为保护自己合法的请求权,强调自助者"自己"的权利,排除了他人权利和公共利益,与正当防卫和紧急避险等自卫行为划清界限;强调自助者应当具有合法"请求权";强调是具有强制力保护的"私法"上的请求权。其次,情况紧急有实施自助行为之必要。关于情况紧急的判定,是指受害人来不及请求公力救助,或者虽然请求了公力救助但却被对方拒绝或持久未与答复,自助必要性体现在如不在此紧急情况下实施自助,则请求权很难实现甚至不可能。再次,自助方法手段为保障请求权之实现所必需。行为针对债务人的财产或人身,如扣押债务人的财产、毁损其财产或者限制其人身自由等,方法手段应当为保障请求权实现之必需。又次,自助行为不得超越必要的限度。自助行为判定,对于动产民事自助行为中扣留、毁损、人身拘束,当然应把握"最小危害原则"即自助行为之主要要件为不可过当,所以依据最小危害原则,扣留一个动产便可以保全自己债权者,不得再扣押第二个动产;扣留物可以解决问题,则不可再扣留债务人身体;而且扣留可以达到债权之保全,则不可再对物进行损毁。自助行为不得违反法律道德。最后,自助行为后及时请求公权力的介入和处置。对于物的毁损,自助人无须申请公权力机关介入或者处置,但据拘禁人身或扣押财产,应及时向公权力申请援助,由公权力作出判断纳入公力救济的轨道。自助行为的适用应当注意与非法限制人身自由之违反治安管理行为、非法拘禁罪的界限,与绑架罪、抢夺、抢劫罪、非法侵入住宅罪、故意毁坏公私财物罪的界限。在警务执法中,应当充分运用自助行为理论,不仅明确自助行为的实体构成,并划清与相近违法犯罪行为的界限,还要进一步完善执法程序,将自助行为和平引入公力救济轨道。
[Abstract]:The system of civil self-help behavior has important value for policing law enforcement. It can not only maintain social order and justice, but also help police personnel to judge the legality of the party's behavior when they exercise public power. Regarding the judgment of self-help behavior, we should insist on the five elements theory. Firstly, in order to protect his legitimate right of claim, the actor should emphasize the right of self-help "self", exclude the rights of others and public interests, and draw a clear line with self-defense and emergency and other self-defense acts. It emphasizes that the self-help should have the legal right of claim and the right of claim in private law. Second, the situation is urgent to implement self-help behavior. A decision on the urgency of a situation means that the victim has no time to request public assistance, or that, although he has requested public assistance, it has been refused or sustained by the other party without a reply. The necessity of self-help is reflected in the necessity of self-help if it is not carried out in such an emergency, Then the right of claim is very difficult to achieve or even impossible. Thirdly, self-help method is necessary to guarantee the realization of claim right. The behavior is directed against the debtor's property or person, such as seizing the debtor's property, damaging his property or restricting his personal freedom, and so on. The method and means should be necessary to protect the realization of the right of claim. Again, self-help behavior must not exceed the necessary limits. Self-help behavior judgment, for movable property in civil self-help behavior detention, damage, personal restraint, of course, should grasp the "minimum harm principle", that is, the main elements of self-help behavior can not be excessive, so according to the principle of minimum harm, Withholding one movable property can preserve one's own creditor's rights, and the second movable property may not be seized again; If the withholding can solve the problem, the body of the debtor can no longer be detained; moreover, if the withholding can achieve the preservation of the creditor's rights, it can no longer be damaged. Self-help behavior shall not violate the law and morality. Finally, after the self-help behavior requests the public power intervention and the disposition in time. For the destruction of things, self-help persons need not apply for the intervention or disposal of public power organs, but according to the detention of persons or the seizure of property, they should apply to the public power for assistance in time, and the judgment of public power should be brought into the track of public relief. The application of self-help behavior should pay attention to the limits of the crime of violating public security management and illegally restricting personal freedom, of illegal detention, of kidnapping, of snatching, of robbing, of trespassing on houses, and of intentionally destroying public and private property. In police law enforcement, we should make full use of the theory of self-help behavior, not only to clarify the physical composition of self-help behavior, but also to draw a clear line with similar illegal and criminal acts, and to further improve the law enforcement procedures. Bring self-help behavior and peace into the public relief track.
【学位授予单位】：天津师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923;D922.14

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