Civil procedure law. Advantages and disadvantages of self-help

1. Autonomy and dispute resolution autonomy. Private relief does not belong to the public resources provided by the state for the public, nor does it depend on the state power, so its existence and operation depend entirely on the needs and independent choices of the parties or society. Because public judicial resources and other dispute resolution mechanisms cannot meet all the relief needs, the existence of private relief is inevitable and reasonable. However, there are also possibilities and risks that both parties or communities, the same subject, evade and violate the law. Here, the legitimacy of private relief can be determined according to the boundaries drawn by law.

2. Whether the subject of dispute resolution is civil or unofficial. Private relief can be achieved unilaterally by the parties themselves, that is, self-help or self-"law enforcement", including negotiation and reconciliation and "coercion" between the two parties. At the same time, private relief may also solve disputes through the intervention of a third party. In this case, the so-called third parties are often non-governmental organizations or individuals without any official color and professional qualifications. Some of them are temporarily involved in dispute settlement, but they may also be a permanent institution or organization. At the same time, these institutions may be illegal, or they may be on the edge of the law, and some may be recognized by the state and transformed into social organizations, such as so-called debt collection companies.

3. Diversity and flexibility of dispute settlement basis. Contemporary private remedies cannot completely surpass the law. However, the reason why private relief is favored by the parties lies in its flexibility in applying norms, paying special attention to the role of civil society norms while taking care of legal provisions. In this sense, it can be said that private relief is the main implementation mechanism of civil society norms. Thus, on the one hand, private relief can make the parties get the expected solution, but on the other hand, it may also become a way to evade the law. Its legitimacy depends on whether the evaded law belongs to mandatory norms and whether the folk norms it is based on conform to public order and good customs.

4. The validity of the dispute settlement result is not mandatory. Undoubtedly, private relief must rely on various coercive forces, including public opinion, morality, religious belief, social pressure, the authority of the third party, the binding force of civil society norms, the threat of strength and so on. However, private remedy itself has no legal force, and the result of dispute settlement can only be voluntarily performed by the parties. Once resorting to state power and judicial procedures, it must be dealt with again according to legal norms and procedures, which is often ineffective. But this naturally urges the parties who evade the law to consciously accept the result of private relief. On the other hand, the state's recognition of legal private relief and the effectiveness of its settlement agreement 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, and it can also be classified as an informal dispute resolution mechanism. Because some private remedies may force one party to accept a solution or compromise through illegal means, the legitimacy and reasonable limit of the procedure become the basic criteria for judging the legitimacy of private remedies.

6. The immediacy of liberation. This is the biggest 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 try to negotiate or resolve it independently. However, the ability of private relief is also limited. Once the conditions for private relief are not met or the expected effect cannot be achieved, the parties often have to resort to more formal social relief or public relief.

7. Complementarity and interweaving of social relief and public relief. The boundary between private relief and social relief is often difficult to distinguish accurately. For example, the property management company can participate in or preside over the dispute settlement in this community, but this is neither its legal function nor its prior entrustment, so it can be regarded as a kind of private relief; On the other hand, the property management company itself is a legal entity, and dispute resolution can be regarded as one of its social functions, so its nature can also be defined as social relief. Similarly, the boundaries between private relief and public relief are staggered, which is the embodiment of the complexity and diversification of social control. As Professor Macaulay pointed out, many functions that are usually regarded as law are actually undertaken by alternative mechanisms, and the factors called "public" and "private" are interrelated to a great extent. It is difficult to draw a clear line between formal and informal mechanisms, or between the public and private spheres.