On The Construction Of Personality Right Injunction Procedure

Article 997 of the "Civil Code" is a new institution in China,namely,the injunction institution of personality right.The personality right injunction provides a quicker remedy for the protection of personality rights,but the procedural rules for the personality right injunction have not yet been clarified.In practice,most of the judicial organs review personality right injunction cases with reference to the procedural regulations of behavior preservation and personal safety protection orders,which makes the local courts different in terms of review requirements,review standards,and relief methods.The lack of procedural rules for the injunction of personality rights cannot maximize the function of the injunction of personality rights.Based on the theoretical research on personality right injunction and considering specific personality rights,this thesis analyzes the problems existing in judicial practice of personality right injunction,and explores a series of procedural rules for personality right injunction from application,review,ruling to relief.The full text is divided into five parts.The first part,the theoretical overview of the injunction of personality rights.The provisions of Article 997 of "Civil Code" reflect the characteristics of urgency,timeliness and temporary nature of the prohibition of personality rights.Personality right injunction has both the nature of substantive law and procedural law,and it cannot be unilaterally identified as a substantive system or a procedural law system.Personality right injunction procedure is independent and should be characterized as non-litigation procedure.Personality right injunction procedure should be constructed according to non-litigation procedure jurisprudence,while taking into account the minimum procedural guarantee for the respondent.There are differences between personality right injunction and behavior preservation in terms of application subject,application time,and consideration factors.Personality right injunction and personal safety protection order belong to the general and special relationship.The second part,the application of the injunction of personality rights.The applicants for the injunction of personality rights include natural persons,legal persons and unincorporated organizations.The application time for an injunction of personality rights can occur either before the lawsuit or during the lawsuit.The application conditions include the identity information of the applicant and the respondent,specific requested matters,factual basis and reasons,evidence proving that the perpetrator is committing or is about to commit an infringement,and evidence that failure to stop in time will cause irreparable damage.The personality right injunction is only applicable to the situation where the specific personality right is infringed.If the applicant applies for the personality right injunction on the grounds that the general personality right is infringed,the people’s court will not accept it.Personality right injunction does not need to take the notification rule as a procedural prerequisite,the two are in a parallel position,and the right holder chooses to apply it.The third part,the review of the injunction of personality rights.The people’s court should conduct a substantive review of the personality right injunction,and firstly review whether the applicant is a qualified subject.The court examines the evidence provided by the applicant,based on the principle of adopting the most probable standard of proof,and applies leniently to the personality rights involving personal rights and interests in emergency situations.To determine whether an illegal act is about to be implemented,it must be combined with the number of violations and the danger faced by specific personality rights.The court examines the fact that the damage has reached an irreparable level is not only based on financial irreparable,but also needs to consider the damage caused to the spirit.According to the urgency of the infringement,the people’s court made an injunction of personality rights in a timely manner.The fourth part,the adjudication of the injunction of personality rights.The time for making an injunction ruling on personality rights should generally be controlled within 72 hours.Personality rights involving personal safety should be made within 48 hours in emergencies.The injunction ruling on personality rights should be limited to the purpose of stopping infringement,eliminating danger,and eliminating obstacles,and specifying specific measures according to the manifestation of specific personality rights.The ruling of the personality right injunction has formal certainty,but not substantive certainty,and the right holder can still file a lawsuit based on the same appeal,and resolve the disputed matters in the lawsuit.Personality right injunctions are enforceable.When the respondent refuses to perform the ruling,the court may impose a fine or detention on the respondent according to the seriousness of the circumstances.The validity of the personality right injunction is limited.When the final judgment of the court takes effect,the personality right injunction is invalid.The fifth part,the relief of the injunction of personality rights.When the applicant believes that the injunction of personality rights is wrong or inappropriate,it seeks relief by exercising the right of objection.In order to protect the legitimate rights and interests of the respondent,if the respondent refuses to accept the injunction on personality rights,it may raise an objection to the court at the same level.In principle,the court does not require the applicant to provide security when making a personality right injunction.If the existing evidence is not enough to determine the facts of the case,the court will issue a personality right injunction through the applicant’s providing security without prejudice to the interests of the respondent.The court may also require the applicant to provide security if the respondent provides reasonable reasons and basis.If the applicant and the respondent believe that the ruling is incorrect and have given reasonable reasons,the court may change or revoke the personality right injunction.If the court finds that the application for an injunction of personality rights is wrong,in principle,the applicant is not liable,but it can ask for an apology or eliminate the impact.However,if the applicant applies maliciously and damages the interests of the respondent,the applicant shall be liable for compensation.