Article 1177
Where the lawful rights and interests are infringed upon and the circumstances are urgent and it is not possible to obtain protection from the state organs in a timely manner, and failure to take immediate measures will cause irreparable damage to their lawful rights and interests, the victim may take reasonable measures such as withholding the infringer's property to the extent necessary to protect his or her lawful rights and interests;
Where the measures taken by the victim improperly cause harm to others, they shall bear tort liability.
1. The main purpose of this article
This article is about self-help behavior.
II. Evolution of the Provisions
Since the original General Principles of the Civil Law, the relevant legislation and judicial interpretations in mainland China have not made clear provisions on self-help behavior. During the drafting of the original Tort Liability Law, self-help behavior was provided, but due to the controversy at that time, no provision was made. For the first time, the Civil Code clearly stipulates that self-help acts are the defense of tort liability from the level of civil legislation. Article 952-2 of the Civil Code on Tort Liability (Second Reading Draft) clearly stipulates that if the lawful rights and interests are infringed upon and the situation is urgent and the protection cannot be obtained by the state organ in a timely manner, the victim may take reasonable measures such as detaining the property of the infringer to the extent necessary. After the victim commits the conduct in the preceding paragraph, they shall immediately request that the relevant state organs handle it. Where the measures taken by the victim improperly cause harm to others, they shall bear tort liability. Since then, the legislature has further refined the content of this article to form this provision. Compared with the two, first, this article adds the qualifying condition that "failure to take immediate measures will cause irreparable damage to its legitimate rights and interests", which is more scientific and reasonable; second, this article amends the original paragraph 2 that "after the victim commits the act in the preceding paragraph, he shall immediately request the relevant state organs to handle it" to "however, the relevant state organs shall be immediately requested to handle it", and merges it into paragraph 1, so that not only is the connection smoother, but most importantly, it is more important for "immediately request the relevant state organs to handle it" The time limit has been further reduced, and the conditions for the application of self-help behavior have been tightened. In addition, after the Second Reading Draft, the legislature revised the phrase "withholding the property of the infringer" to "withholding the property" in this article, and then reverted to "withholding the property of the infringer" in the original Second Reading Draft, which is more rigorous and conducive to avoiding the possible abuse of self-help behavior. Judging from the provisions of the Tort Liability section on self-help and the amendments and changes in this article, the provision of self-help does not mean that the application of self-help acts is completely advocated or even restricted, but that self-help acts should be regulated in accordance with law on the basis of objectively determining the role of self-help acts.
3. Interpretation of Provisions
This article regulates self-help behavior.
The original Tort Liability Law did not provide for self-help behavior, and this Part provides for it as a cause for exemption.
Self-help behavior refers to the act of seizing, restraining or taking other corresponding measures against the property or freedom of others within the scope necessary to protect their lawful rights and interests in order to protect their own lawful rights and interests, when the situation is urgent and the state organ cannot obtain timely assistance, which is recognized by law or social morality. The nature of self-help is self-reliance. There is no express provision in this article that may impose restrictions on the personal liberty of others, but the word "etc." contains that meaning. For example, the act of restricting the freedom of going to a restaurant without bringing money and not being able to pay, and the owner of the restaurant not letting him leave and waiting for someone to send money to settle the bill is an act of self-help.
The elements of self-help are: (1) the perpetrator's lawful rights and interests are infringed, (2) the situation is urgent and the protection of the state organs cannot be obtained in a timely manner, (3) the rights and interests of the infringer will be irreparably damaged if measures are not taken immediately, and (4) the infringer is seized or restricted in personal liberty to the extent necessary to protect his or her lawful rights and interests.
After the perpetrator has carried out self-help and their rights and interests have been protected, the corresponding measures shall be lifted, and if it is still necessary to continue to employ the above measures, they shall immediately request that the relevant state organs handle it in accordance with law.
If the perpetrator takes inappropriate measures to help the victim, causing harm to the victim, he shall bear tort liability and compensate for the losses.
4. Cases
Song Moulin v. Wang, a dispute over compensation for the removal of the offshore aquaculture facilities that had already been set up in the sea area after obtaining the right to use the contract
Facts: The L sub-district office signed a contract with Wang to contract 1,200 acres of the No. 4 aquaculture sea area of H Bay to Wang for operation. Wang took people to the aquaculture area and cut 111 rows of breeding rafts from 9 farmers, including Song Moulin. The court held that Wang had a legal right to contract and operate the No. 4 aquaculture sea area in H Bay, while Song Moulin did not have the legal right to use the sea area but set up a breeding raft in the sea area, which had hindered Wang's exercise of his contract management right in the sea area and constituted an infringement of Wang's legitimate rights. However, the circumstances of the present case do not meet the conditions for self-help behaviour. This kind of situation does not constitute an urgency at all, and Wang has ample time to request the state to eliminate Song Moulin's nuisance through legal procedures by public force, and must not take so-called self-protection measures on his own, and Wang's own means are obviously improper. Wang's behavior not only did not protect his rights, but exceeded the limit of legitimacy, causing losses to Song Moulin's lawful property, constituting an infringement of Song Moulin.
5. Analysis
Before Article 1177 of the Civil Code stipulates self-help as a cause of exemption from tort liability, the civil legislation of the mainland has not explicitly provided for this. The constitutive elements of self-help conduct include: (1) the perpetrator's lawful rights and interests are infringed, (2) the situation is urgent and the protection of the state organs cannot be obtained in a timely manner, (3) failure to take immediate measures will cause irreparable damage to the infringer's rights and interests, and (4) the act of seizing property or restricting personal freedom of the infringer within the scope of protecting one's lawful rights and interests. In this case, Wang obtained the right to contract and operate the sea area involved in the case in accordance with the law, so Song's act of occupying the sea area where Wang had the right to contract and operate the aquaculture raft has infringed on Wang's legitimate rights. However, the state of infringement did not constitute an urgency, and Wang had full time to stop the infringement and remove the obstruction through public remedies, so he did not meet the conditions for carrying out self-help acts. Moreover, compared with Wang's purpose of protecting the lawful contract management right, the means he adopted to cut off Song Moulin's breeding raft and allow it to sink to the bottom of the sea and cause damage exceeded the necessary limit. Therefore, Wang should bear tort liability for Song Moulin.