Private remedy meansRights subjectTo the extent permitted by law, relying on its own strengthSelf-help behaviorTo help the victimscivil rights。Private relief on the edge of public relief ishuman societyInitial rightsRemedies。In modern society, private relief still maintains its ownterritory, andPublic remedyThey complement each other and maintain social harmony and stability.
About 35000 years ago,Human ancestorsComplete evolution.Where there are human beings, there will be disputes, and where there are disputes, there will be private relief.Private relief andhuman societyCome together.
stayPaleolithic AgeThe productivity is low, the social organization is simple, and there is not enough human and material resources to support the formal political institutions and monk groups.People form autonomous groups and are familiar withreligious rites's old man was promoted as the master of ceremonies, and the young man with outstanding hunting skills was elected as the leader of the hunting group, but no recognizedCoercive power。The essence of social organization is cooperation. Families and groups are cooperative groups, fighting together for survival, including the struggle against nature, and the struggle against other tribes for revenge and resources.This is the way of dispute resolution of private remedy.Fear of nature leads toprimitive religion But no complete separationProduction activitiesThe wizard of.
Neolithic Age，Agricultural revolutionIt has brought a settled lifestyle. Villages have replaced vagrant groups as the basic social unit of human beings, followed by agricultural migration andPopulation explosion。Some tribes began to have powerful leaders and primitive noblespolitical organization Gradually.At that time, tribal political organizations, leaders and wizards had certain dispute resolution functions within villages or groups, but there were almost no major conflicts within groups.[1]
Babylon, Cuba
althoughPublic remedyIt began to develop, but afterBabylon, Cuba, private relief is still the norm of social dispute resolution, and public relief incorporates a large number of private relief factors, reflecting the transition from private relief to public relief.With《Code of Hammurabi》For example, the Code directly stipulatesFree peopleUnder certain circumstances, they have the right to implement private relief.For example, Article 21 of the Code stipulates that if a free citizen infringes upon another's residence, he shall be killed and buried here and there.Article 25 stipulates that if any house is on fire and the freeman who comes to fight the fire covets the property of the owner and takes any of his property, he shall throw himself into the fire.Article 129 stipulates that if the wife of a free citizen is arrested because she sleeps with other men, she shall bind them and throw them into the river.If the wife's master keeps his wife's life, the king will also keep his slave's life.Second, implement the principle of eye for eye and tooth for toothHomomorphic revengeandBlood revengeIs the main remedy.For example, Article 196 of the Code stipulates that if a free citizen damages the eyes of any free citizen, his eyes shall be destroyed.Article 197 stipulates that if he breaks the bone of a free citizen (son), he shall break his bone.Article 198 provides that if such damage occursMushchennuIf you break the eye or the bone of Mushchennu, you should pay a silver compensation.Article 200 stipulates that if a free citizen knocks down his teeth, he shall knock down his teeth.Article 205 stipulates that if a free man's slave strikes a free man's son on the cheek, his ear shall be cut off.[1]
Ancient Greece was composed of several city statesGentile systemIn the process of transforming into a country, various city-stateCodificationActivities, through learning from EgyptCarthageAnd the laws of Western Asian countrieslegal system, androman lawIt has a certain impact, but has not formed a unified law.stayZhuchengAthens andSparta, andlegal systemAthens is the representative of China's development.Originally implemented in AthensMonarchy, giving way to the nine consulsOligarchy。[1]
Roman times
In the first century BC, Rome conqueredmediterranean seaThe coastal provinces of the old empire, Macedonia and Egypt.In 146 BC, the uprising of the Acaya League against Rome failed,Roman timesStart here.From the founding of Rome to the codification presided over by Emperor Youdi, over a thousand years, RomeLitigation systemThe development ofLegal action、Procedural litigationAnd extraordinary procedures.In about the second century BC, it gradually transited from statutory litigation to procedural litigation, and then to the end of the third century AD, it mainly implemented procedural litigation and transited to extraordinary procedures, after which it completely implemented extraordinary procedures.
Private relief was still prevalent in Roman times.RomeProceedingsThe development from legal action, procedural action to extraordinary procedure is a process from private relief toPublic remedyThe development history of private relief from its important position to the relatively complete public relief.[1]
Information Age
Legal private relief is an effective way to solve administrative disputes
Private reliefPublic remedyFrom the steam age to the electrical ageAtomic ageIt has been developing into the information age, and private relief is in modern timesA society ruled by lawIt also exists widely, and in many cases people prefer to choose private relief rather than resort to itjudicial processLegal settlement is not the only or even may not be the main way to resolve disputes.
judicialFinal settlementIt is the basic requirement of modern rule of law, but the final judicial solution is not the only solution, but a conditional solution. Only when social disputes reach certain conditions or standards can they be included in the judicial vision.Some private remedies have formed certain habits and norms through long-term evolutionInformal Institution Of“customary law”Sometimes it is more efficient and does not harm justicesocial control The mechanism may also be formedSocial orderAnd peace. "[2]
Private remedy is the oldest way of dispute resolution,Public remedyOriginating from the crack of private relief, the evolution from private relief to public relief is a long and staggered process.The two have been coexisting for a long time, which is both contradictory and complementary.In the shadow of the law, private relief also has the shadow of private relief in law and public relief. Private relief has the "public" factor, and public relief has the "private" factor. There is a social relief integrating the characteristics of both, such as mediation and arbitration.Third, the two transform into each other. On the one hand, private remedies are legalized, and many private remedies are gradually incorporated into the legal framework. On the other hand, the privatization of public remedies should beState monopolyThere is a phenomenon of privatization in the administration of justice.[3]
Main features
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Logical structure chart of migrant workers' wage demands
Generally speaking, private relief has the following characteristics:
1. Autonomy andAutonomy。Private relief does not belong to the stateThe publicProvidedpublic resource , nor rely onState powerTherefore, its existence and operation depend entirely on the parties orSocial communityNeeds andSelf selection。Because the publicJudicial resourcesAnd other dispute resolution mechanisms can not meet all the relief needs, so the existence of private relief is inevitable, andrationality。However, there are also possibilities and risks for both parties or the community and the community to evade and violate the law.Here, private remedy can be identified according to the boundary defined by lawLegitimacy。
2. The subject of dispute resolution is folk or unofficial.Private relief can be achieved by the parties unilaterally, that is, self-help or self "enforcement", including both parties'Consultation and reconciliationAnd "press fit".At the same time, private relief may also be passedThird party interventionIn this case, the so-called third party often does not have any official color andProfessional qualificationsPrivate institutions or individuals.Some of them are temporarily involved in dispute resolution, and others may bePermanent establishmentOr organization.At the same time, these institutions themselves may be illegal or on the edge of the law, and some may obtainNational recognition, converted tosocial organization, such as the so-calledDebt collection company。
3. Basis for dispute resolutionDiversityAnd flexibility.The contemporary private remedy cannot go beyond the law completely.However, the reason why private relief is favored by the parties lies in its flexibility in the application of norms, paying special attention to the civil society while taking care of the legal provisionsSocial normsRole of.In this sense, private relief is the main norm of civil societyImplementation mechanism。Thus, on the one hand, private relief can make the parties obtain the desired solution, but on the other hand, it may also become a way to circumvent the law.hisJustificationDepends on whether the law being circumvented belongs toMandatory norms, whether the folk norms based onpublic policy 。
4. The effect of dispute resolution is not mandatory.There is no doubt that private relief must rely on variousCoercive forceIncluding public opinion, moralityreligious belief, community pressure, third-party authority, civil society normsbinding force, as well as the threat of strength, but private relief itself does not have any legal force, and its dispute resolution can only rely on the voluntary performance of the parties.Once resorting to the statepublic rightsandjudicial processMust be based onlegal normAnd reprocessing procedures, often due to invalid.However, this naturally urges the parties who circumvent the law to consciously accept the result of private relief.On the other hand, the recognition of the legitimate private relief and the effectiveness of the reconciliation agreement by the state is also conducive to encouraging and maintaining social autonomy and integrity.
5. Flexibility and informality of procedures, methods and means.This is also an effective way for private relief to achieve the purpose of dispute resolution, which can also be classified as an informal dispute resolution mechanism.Because some private remedies may force one party to accept a solution or compromise by illegal means, the legitimacy and reasonable limit of the procedure become the basic criteria for judging the legitimacy of private remedies.
6. RemedialDirectness。This is the greatest advantage of private relief, which can minimize the cost of dispute resolution;Therefore, after a dispute occurs, it is usually the most reasonable choice for the parties to first try to negotiate or solve it independently.However, the ability of private relief is also limited. Once there is no condition for private relief or it cannot be reachedExpected resultsThe parties often have to resort to more formalsocial assistanceorPublic remedy。
7. Complementary and interlaced with social relief and public relief.Private relief andsocial assistanceIt is often difficult to accurately distinguish the boundaries of.For example,Property management companyYou can use thisCommunity participationOr preside over dispute resolution, but this is neither its statutory function nor its prior entrustment, so it can be regarded as a private remedy;On the other hand, the property company itself is a legal entity, and dispute resolution can be regarded as itsSocial functionsOne is that it can also be defined as social relief.Similarly, the boundary between private relief and public relief is also staggered, which is exactlysocial control Complexity and diversification.As Professor Macaulay pointed out, many functions commonly regarded as law are actually assumed by alternative mechanisms, and the factors called "public" and "private" are interconnected to a large extent.It is difficult to draw a clear line between formal and informal mechanisms, or between the public and private spheres.[4]
basic form
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Private remedy of administrative disputes[5]
In part, institutionalized private relief has been integrated into modern societySocialAt the same time of the relief system, many civil dispute resolution mechanisms that have always existed and constantly generated still retain the nature of private relief, or operate at the border.Its basic forms include:
1. Consultation.Negotiation and consultation, as the most basic way of dispute resolution, is an indispensable means in any non litigation procedureA country ruled by lawBoth actively encourage the parties to solve the problem through consultationcivil dispute。At the same time, negotiation and consultation are also the basic form of private relief. Both parties may reach a settlement through equal dialogue and communication, and may also inevitably behave inappropriately in varying degrees, such as bullying, violent coercion, fraud or coercion.
2. Self service（self-preservation）。Including first detaining, self retaining the property of the other party to repay its debts, etc.
3. Mediation.In informal or non institutional mediation, both parties can employ a neutral third person without any qualification to mediate, and some people with specific status can even take the initiative to intervene, such as relatives, elders, colleaguesCommunity elites, religious people, etc.
4. Provisional arbitration.Many countries allow both parties to passarbitration agreementIf the dispute is submitted to temporary private arbitration, any person can be employed as long as both parties agreeArbitratorAnd make judgments and decisions in the form of adjudication.
5. Private or non-governmental organizations.according toSocial needsSpontaneous generation of private or engaged in investigation, identification and other intermediary services.They usually accept the entrustment of one party, participate in dispute resolution as their agents, and sometimes play the role of good offices, peacemaking or mediation.
6、underworldBackground of private relief organizations.The main purpose of such private relief is to circumvent laws and illegal activities. Its role is to form and maintain the internal order of its community, and even to have a complete "legislation", violent law enforcement and sanctions agencies.In the officiallegal systemIn case of conflict, it is very destructive.[4]
7. Legalization.Private relief is likeVine, in the implementationprivate rightIt is inevitable that wild justice will be publicized.Although there is certain rationality under certain conditions and scope, this rationality should not be exaggerated. It also has many drawbacks, especially strong private relief.If there is no standard to follow private relief, it may be arbitrary, and private seeking for justice may lead to injustice, which may lead to hostility, intensification of conflicts, violence, and collection of private debtPrivate detectiveIf it is not controlled, it may evolve into a triad, so it needs to be controlled.The process of state control over private relief is the legalization of private relief.[4]
Legal framework
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Books related to private relief
The private remedy of the possessor has also been incorporated into the legal framework for many countries;Self-help behaviorNot many are included in the code, but many national courts support or oppose self-help behavior through precedents depending on the specific situation;Chinatraffic accidentInstitutionalization of "private";USA and other countriesCriminal reconciliationInstitutionalization;Retaliation andCross retaliationStandardization;britaincivil disputePre litigation for settlementprotocolSystem, etc.[3]
For example,Self-help behaviorIs a typical example of the legalization of private relief.not a fewcountries and regions The laws and precedents of, for example, GermanySwitzerland、Austria, France, Japan, Britain, ChinaTaiwanRegion, ChinaMacaoRegions, etc.Several drafts or proposals of China's civil code are related to the tort law“Grounds for defense”Self help behavior is specified in.Article 23 of Chapter III of Part VIII of the draft of the Law Working Committee of the Standing Committee of the National People's Congress stipulates: "Legal rights and interestssufferUnlawful infringementIf it is too late to request the relevant departments to intervene, and if it is difficult to safeguard their legitimate rights and interests without taking measures, the obligee can take reasonable self-help measures to impose necessary restrictions on the infringer's person or detain the infringer's property, but should notify the relevant departments in a timely manner.Those who wrongly conduct self-help or take improper self-help measures and cause damage shall beartort liability。”The law can be setSelf-help behaviorTo control it.[3]
It is necessary to regulate the private remedy in terms of applicable conditions.First, it should have legitimacy.Private relief can only be recognized and supported by the state if it is consistent with national laws, regulations and policies.Therefore, legitimacy is the foundation and root of the existence of private relief mechanism.[5]
Legal definition
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Private Relief Cartoon
Private remedy refers to the party's failure to pass the state organ andlegal procedures, and rely on their own or private forces to realize rights and resolve disputes, including coercion and negotiation.
In the vision of most jurists, private relief is a backward, uncivilized, and should be suppressed and abandoned dispute resolution.It is "the most primitive and simplecivil disputeThis is closely related to the early human society with low productivity and low civilization. ""Because of private relief, it is easy to create abuses, and the weak can not implement it. The strong often use their power to bully others, affecting social order. Therefore, the more the country progresses, the scope of private relief is increasingly narrowed. As for modern laws that follow the principle of prohibiting private relief, private relief is often constituted in civil lawTortious conduct, criminally becomecriminal act。”[6]
Private remedy is usually regarded as an extra judicial act, but it is by no means a purely private action that has nothing to do with law.In many cases, the parties implement private remedies based on legal background knowledge.When people seek private relief, they also resort to various norms, including moral and legal norms.Private remedy is that the parties solve their disputes by private force without legal procedures, but in this process, private parties will consciously or unconsciously resort to the power of law, such as strengthening their own power by resorting to the legal provisions on debt repayment (although it is not known which law, which article and which paragraph have such provisions, there must be such provisions), and finally achieveRight reliefPurpose.It can be seen that the law not only inhibits private relief, but alsoBe treated asOne kind of knowledge is used in private relief.This kind of privatepublic rightsThe application of "can be regarded as the extension of state power".[7]
There are broad and narrow senses of private relief: the former is a kind of ex ante, defensive and passive private relief, includingJust CauseandUrgent hedging；The latter is a new kind ofaggressive behaviorIt refers to the relief sought to recover one's own rights after the initial infringement of rights has passed and a certain order has been formed. It is an afterthought, aggressiveInitiativePrivate relief.The term "private remedy" is usually used in a narrow sense.
China is making efforts tocivil rightsAt the same time of protectionRights subjectWithin the scope permitted by the law, they should safeguard their civil rights according to law with their own certain behaviors.This right is called self-relianceRight to protectionorRight to self-defence。
China《General Principles of Civil Law》Not expressly acknowledgedSelf-help behaviorIt focuses on preventing or even punishing those who violate civil rights, rather than on restoring or relieving the interests of the obligee.When rights are infringed, the victim can only seek relief by investigating the legal responsibility of the infringer and the defaulter, and there is a lack of a complete relief system that directly starts from "rights".becausePublic remedyIneffective, especially difficult to implement, such as debt collection companies or various forms of "debt collection professionals" and so on often use private relief.The law does not recognize and deny such self-help relief behavior at the temporary level between the edge of legal norms and moral adjustment, which is in a vague state.The vagueness of legislation on private relief needs to be improved by legislationInstitutional system, enrich and reasonably enrich the form and content of rights, and transfer the protection of rights from the concept of responsibility toRight reliefConcept, etc.
The second is the exercise of public power. The obligee helps to exercise rights through public institutions and certain procedures. The exercise of public power is the main way of right relief, because only in this way can the weak realize their rights relative to the strong, and only in this way can we avoid the emergence of armed struggle between private individuals and the terrible phenomenon inherent in it.[7]
Academic viewpoints
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self-help：Anglo American lawThe explanation of "self help" is broad, roughly equivalent toPublic remedyOutsideRemedies。《Oxford Dictionary of Law》It is interpreted as: "Some legal remedies that individuals can use themselves without seeking the order of the court, including self-defense, relief of disaster damage, reduction of obstruction, arrest of criminals and a few other measures." Another dictionary is interpreted as: private relief means notResort to lawAction to seek relief or implement rights, such as taking back cars when not paying money, taking back borrowed or stolen items, demanding and accepting payment from others, or mitigating damage (such as digging ditches on others' land for flood discharge).Private relief is legal as long as it does not "break the public peace" or violate the law (of course, short-term intrusion is common).Another example is, "People act by themselves instead oflegal proceedings, to correct or preventWrongful actAction.The United States Uniform Commercial Code allows creditors toSocial orderOn the premise that private relief is used to retrieve the collateral. "[8]
procedural lawScholars generally believe that,civil disputeThe handling mechanism includes private reliefsocial assistanceAnd public remedy.Private remedy includes self-determination and reconciliation. Self determination refers to that one party of the dispute subject makes the other party obey by its own strength. Reconciliation refers to that both parties compromise and compromise with each other. Both parties resolve the dispute according to their own strength, without the participation of a third party and without any regulatory constraints.
Some procedural law scholars divide civil dispute resolution into private relief and public relief.If someone claims that such mass solutions as reconciliation, mediation and arbitration are basically in the category of "self-help relief" and are not legally mandatory;andcivil actionGenus“Public remedy”Category.This view brings other dispute resolution methods into the framework of private relief except public relief, which is the broadest understanding of private relief.
From the perspective of dispute resolution, the narrowest understanding of private remedies only refers to the realization or protection of rights by private forces (especially by force or threat of force), and reconciliation is excluded.
Social anthropologyThe definition of private remedy is descriptive.Some people divide dispute resolution into private relief, avoidance, negotiation, settlement through a third party and tolerance.Private remedy refers to a kind of unilateralAggressive behaviorSolutions to express dissatisfaction, such as direct criticism, ridicule, harassment, destruction of property, exile or violence (including suicide), which are more common means of revenge, in addition to reputation maintenance, disciplinary punishment (such as master to slave, guard to prisoner, parent to child, teacher to student), and counter judgment.This view equates private relief with coercion and excludes negotiation.More scholars understand that private relief includes coercion and negotiation.
