Applicable Conditions Of Personality Right Injunction System

Under the background of the rapid development of information and network,China’s civil code pioneered the world by compiling the right of personality independently,which meets the needs of the protection of the rights and interests of personality and the development of theory.The great significance of establishing the prohibition system of personality right lies not only in improving the comprehensive protection system of ex ante defense and ex post relief of personality right,making China’s contribution to the compilation of the world civil code,but also an important embodiment of the modern protection of personality right.Since the implementation of the civil code,the judicial interpretation of the prohibition of personality rights has been blank,its application procedures,application conditions and legal effects are difficult to grasp,and can not meet the stable and reasonable expectations of the requirements of judicial application,so there is a dilemma of judicial application.This paper takes the applicable conditions in the judicial application of the injunction of personality right as the research object,and puts forward its own opinions on this basis,combined with the relevant practical experience at home and abroad,in order to improve the judicial application mechanism and break through the mechanism of sticking to the post relief in the infringement of personality right,so as to promote the process of comprehensive protection of personality right,taking into account fairness,justice and efficiency.As a new system,the prohibition system of personality right evolved from the behavior preservation system and the personal safety protection order system.It has a similar institutional basis with the two,but Prohibition of personality right is different from the behavior preservation system,and it is not only the expansion of the personal safety protection order.In terms of applicable elements,the application subjects of personality right prohibition include natural persons and legal persons,but do not include the close relatives who apply for prohibition due to the personality interest disputes of the deceased.The scope of object protection includes general personality rights,but the boundary of the scope of protection should be determined.Violations should be urgent and illegal,and can be divided into personal safety and non personal safety.When judging the irreparable damage,we should grasp it from the aspects of property damage,personal damage,loss of competitiveness and so on.In addition,in terms of other consideration conditions,the proof standard of the personality right injunction system should be more likely.The balance of the interests of both parties and public interests can be included in the factors considered in the review of the injunction,and the specific consideration factors of personal safety and non personal safety injunctions are different.In the case of right conflict,Under the principle of practical reconciliation,the balance of interests theory should be adopted to weigh the cases,supplemented by the theory of value rank and the principle of proportion to help make a reasonable ruling.