Research On The Injunction System Of Personality Rights Before Litigation

Article 997 of the "Civil Code" that came into effect on January 1 this year stipulates the "preliminary injunction system for personality rights":"Civil entities have evidence to prove that the perpetrator is committing or is about to commit an illegal act that infringes on his personality rights.If a timely stop will cause irreparable damage to its legitimate rights and interests,it has the right to apply to the people’s court for measures to order the perpetrator to stop the relevant act.”The "Personality Rights Preliminary Injunction System" added separately in the "Civil Code" in the Personal Rights Edition has made up for the shortcomings in the protection of personality rights and created a new system design for the protection of personality rights.It is an important legislative innovation and demonstrates our country.The respect and protection of personality rights in a society under the rule of law and a country under the rule of law.The ban on personality rights has the nature of procedural law,but in fact it is not considered from the perspective of civil procedure law.Regarding the nature of the personality right injunction,application procedures,constitutive requirements,and review standards,there are still disputes in judicial practice and academic identification.How to improve the design of procedural law has also become an issue that scholars of civil procedure law need to consider.In order to ensure the smooth realization of the legislative purpose of the Civil Code and the specific implementation of the pre-trial injunction system for personality rights,the supporting provisions of the Civil Procedure Law and related judicial interpretations need to be further regulated.In view of this,the author will first start with the research background and development status of the personality right injunction system,and discuss the relationship between the personality right injunction and prelitigation injunctions such as intellectual property injunctions and personal safety protection orders;in addition,through discrimination and behavior preservation,stop the infringement The difference between the concepts of,pre-execution,etc.,to clarify the legal nature of the personality right injunction,and reflect the independence of the system;Secondly,through a brief description of the characteristics of the American injunction system and the advantages of the Swiss Civil Code for the protection of personality rights,it proves that the personality rights injunction system in the Civil Code of our country can be regarded as the master of the two legal systems,and in-depth analysis of the consideration factors of the courts of other countries,To study the preemptive measures and practical experience of prohibitions,and provide a legal basis and reference for how to regulate and set up the system in the field of civil procedure law in my country.Third,the application procedures for the injunction of personality rights and its relief rules,constitutive requirements and other provisions clearly clarify that in practice,formal review should be first followed by substantive review to determine that the preliminary evidence meets the standard of proof.At the same time,it is necessary to weigh the interests between the applicant’s losses and the possible losses caused by the ban,as well as the impact on the social and public interests,and to ensure the appropriateness of the personality right ban after comprehensive consideration.In addition,combined with the typical cases in current judicial practice in my country,including Qian Zhongshu’s letter manuscript auction case on copyright and reputation protection rulings,the Guangzhou Internet Court’s first case of pre-litigation injunction on personality rights between freedom of speech and the necessary tolerance of businesses To discuss and study the review standards in my country’s judicial practice;Finally,on the basis of many viewpoints in academia,the author suggests that the application of the personality right injunction system in litigation should be the focus of civil procedure law research and teaching,so as to stand on the shoulders of civil law giants and become the civil procedure law.Subsequent procedural docking or content adjustments put forward a few suggestions,follow the principle of "efficiency first and fairness",set up separate special procedures,in order to benefit the future system design of the pre-trial injunction of personality rights.