Study On The Injunction System Of Personality Rights

Article 997 of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")provides for the first time a system of injunction of personality rights in China,making up for the lack of efficiency,convenience and timeliness of the traditional protection method of "tort+litigation preservation+civil liability",and also demonstrating China’s attitude and determination to respect and protect personality rights.The provisions of the Civil Code’s Personality Rights Division give it the effect of substantive law,so that it belongs to the injunctions of substantive law.But from the perspective of functional positioning,personality rights injunction is one of the ways to help personality rights claims to work,which is a unique realization procedure between litigation and non-litigation procedures,involving many complex issues.And the Civil Code does not provide detailed provisions on it.In order to implement the system of personality rights injunction,it is necessary to further regulate it.The purpose of this paper is to clarify the theoretical basis of the personality injunction system,put forward feasible suggestions and measures for judicial application,and further clarify the legislative direction for the harmonization of civil procedure law and substantive law in the future.Based on the analysis and study of the legal provisions of personality rights injunction,this paper focuses on the concept and constituent elements of the personality rights injunction system,the necessity and scope of application,the jurisprudence of the system,the comparison of the injunction systems of two major legal systems and judicial implementation into five parts,hoping to provide a little direction for the future application of the personality rights injunction.In the first part,the concept and elements of the personality rights injunction system are outlined.Starting from the legislative background of personality rights injunction,the nature of personality rights injunction is introduced as a special procedure for the realization of the right to claim personality rights,and has both the nature of temporary injunction and permanent injunction.Although the personality rights injunction is a new institutional system in China,but the application of the injunction in the country is not the first time,before that intellectual property rights and matrimonial and family areas have been tried,intertwined constitute the institutional basis for the personality rights injunction to take root in China.Through analyzing the establishment and development process of pre-litigation injunction,behavior preservation and habeas corpus,compare the similarities and differences between personality rights injunction and the above three systems,and clearly stipulating the unique value behind personality rights injunction.The second part introduces the necessity and scope of application of personality injunction.Among the possible consequences of infringement of personality rights,it is difficult to repair and restore the moral damage,and therefore prevention is more important than remedy for the protection of personality rights,which is similar to intellectual property rights and is also the special feature of personality rights.However,the right protection structure of "infringement lawsuit+behavior preservation + civil liability" is obviously unable to provide advance protection for personality rights,and there is an obvious conflict between its shortcomings and the real needs of judicial practice,so as to analyze the necessity of establishing a personality rights injunction system.However,the application of personality rights injunction in judicial practice also requires a clear scope of application,combined with the definition of personality rights and the concept of personality interests,to confirm that the object of protection of personality rights injunction is personality rights and interests,including specific personality rights and more important personality interests clearly stipulated by law.The personality rights injunction can be applied to personal information,but not to the personality interests of the deceased,so as to draw the boundary for the scope of the personality rights injunction.The third part is to elaborate the jurisprudential basis of personality rights injunction,mainly introducing the negative defense of personality rights,the positive determination of personality rights and the existence of the right to claim personality rights.The transformation of the understanding of personality rights from negative defense theory to positive affirmation theory and then to the existence of personality rights claims,the development of personality presents the trend of subjective rights attributes and the increasing need for protection,emphasizing the effectiveness to actively prevent the occurrence of damage to the personality rights of civil subjects,and laying the theoretical foundation for the establishment of personality rights injunctions.The fourth part is about the comparison of the injunction system of two major legal systems.Because the personality rights injunction as a newly established legal system,there is no system precedent in comparative law that can fully correspond to it.However,from the comparative study and the system of tracing the source,personality injunction,the two major legal systems of the injunction and false seizure and false disposition system have a certain origin relationship,it is necessary to review personality injunction system in China from the perspective of comparative law to clear the source.In accordance with the criteria of similarity of content and function of personality injunction,the civil law system was selected from the Swiss personality injunction litigation system,the French stopping deterrent protection measures and the German and Japanese false disposition false attachment system,the common law system is divided into the English law and the United States law injunction system,through comparison can be found that Chinese personality injunction originated from the common law injunction system.The fifth part is the judicial implementation of personality rights injunction.Personality rights injunction can only be initiated upon the application but not ex officio by the court,and certain conditions must be met.Before issuing the injunction,the court must conduct two-level review to determine whether it meets the requirements of Article 997 of the Civil Code.In particular,the applicant must be able to prove that "the legitimate rights of the applicant will be irreparable if the infringement is not stopped in time".In the injunction procedure,the court shall determine the specific measures to be taken to order the perpetrator to stop the relevant conduct,based on the type of personality rights infringed,the type of illegal conduct,the likelihood of damage and other factors,and the consideration of consequences in accordance with the principle of proportionality.The personality rights injunction procedure does not depend on the personality rights litigation,and has the characteristics of both litigation and nonlitigation nature,and there is no directly applicable trial procedure.Therefore,it is necessary to establish injunction procedure,independent of the ordinary litigation procedure.Such a procedure must include safeguards and remedies for the respondent,granting the respondent the right to know,the right to be heard,the right to object and the right to apply for reconsideration.If the respondent is damaged by an erroneous application for a personality injunction,the respondent may separately sue the applicant for damages and bear the burden of proving the scope and specific extent of the damages suffered by him/her due to the injunction.Depending on the requests of the parties,the injunction of personality rights may have different effects of finality or temporary nature.The applicant has the right to request the court to enforce the injunction and to take such punitive measures as admonishment,fine,detention,etc.to pursue its legal responsibility.