ПРАВО НА САМОПОМОЋ У ЗАШТИТИ ДРЖАВИНЕ
The Right to Self-help in the Protection of Possession

Summary/Abstract: Self-help is an extraordinary and subsidiary legal instrument for the protection of possession. As such, it should be resorted to only in cases when the judicial protection is impossible or difficult to provide, untimely or otherwise inefficient. The specific nature of self-assistance is reflected in the strict requirements governing the protection of possession by means of physical force; in the contemporary law, these special circumstances include imminent danger and interference (such as dispossession or disturbance) which call for immediate reaction; in such circumstances, state intervention is highly improbable but self-help is an absolute necessity. The high standards pertaining to the institute of self-help should be equally applicable in all circumstances under which self-help is allowed. However, the Serbian law seems to have different criteria for designating the time limits for offensive self-help (which is undertaken after the danger or interference are over) because the length of these time limits departs from the nature of self-help and its basic characteristics. The author of this article proposes some solutions which would make the offensive self-help more consistent with its most significant presumption – necessity; the author suggests shortening the prescribed time limits and points to some legal theory suggestions and comparative law solutions which are used to illustrate this proposal. For example, the method of defining the time limit in the German or Swiss civil codes clearly indicates the extraordinary and subsidiary nature of self-help because it allows the possessor to use force only in the course of immediate danger or interference; in case when the possession has been taken away, the possessor is entitled to use force against the wrongdoer who is caught “red-handed” (in the commission of the wrongful act) or who is apprehended in flight.

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