CAJ | 학술논문

人类的权利自始就是与救济相联系的,当人类脱离了蒙昧和盲动而获得了一定的权利时,也必有与之相适应的救济手段.法律史料表明,在人类社会早期,社会的成员发生“权利纠纷”时,主要依靠私力救济来平息纷争.即使人类社会进入宪政时代,私力救济也普遍存在.私力救济虽然其表面上具有对他人人身自由权利、财产权利或者其他相应权利造成妨碍的事实特征,但是由于其是保全和恢复为既有法律秩序所认可的权利,应当为既有法律秩序评价为合法,这也符合公众关于正义、个人权利的基本观念.本文主要探讨如何在实验和经验的基础上适时合理地对私力救济进行法律规范和调整.
인류적권리자시취시여구제상련계적,당인류탈리료몽매화맹동이획득료일정적권리시,야필유여지상괄응적구제수단.법률사료표명,재인류사회조기,사회적성원발생“권리규분”시,주요의고사력구제래평식분쟁.즉사인류사회진입헌정시대,사력구제야보편존재.사력구제수연기표면상구유대타인인신자유권리、재산권리혹자기타상응권리조성방애적사실특정,단시유우기시보전화회복위기유법률질서소인가적권리,응당위기유법률질서평개위합법,저야부합공음관우정의、개인권리적기본관념.본문주요탐토여하재실험화경험적기출상괄시합리지대사력구제진행법률규범화조정.
Rights of human beings are closely related with the corresponding relief from the very beginning of their creation .That is ,when the mankind broke away from ignorance and heedlessness and acquired certain rights, the corresponding means of relief then was surely be designed. The historical legal materials told us that in the early stage of the human society, the disputes over rights occurring among members of the society were mainly settled by means of private relief. Even we have come into the era of constitutionalism, the private relief can still be found in most cases. The private relief is seemingly characterized by infringing upon other people’ personal freedom, property rights or other lawful rights or interests, but at the same time, it actually protects and restores certain rights which are accepted by the current legal order, then the private relief accordingly ought to be made lawful by the legal order, which is in line with the basic concepts of justice and personal rights .So it is an essential task to discuss how to reasonably adjust and standardize the private relief in a timely manner on the basis of experiments and experience as well.