| Personality rights are the most basic and important rights of civil subjects,which embody the values of human dignity and the free development of personality.Article 997 of ’Civil Code’creatively stipulates the prohibition system for the infringement of personality rights,and the relief of personality rights is advanced from post-remedial to prevention,which makes up for the shortcomings of personality rights protection and improves both preventive and compensatory properties.Some judicial relief procedures are a reflection of the actual needs in the era of the Internet and big data.The effective implementation of the prohibition on infringement of personality rights cannot be separated from the guarantee of adaptation procedures.However,the ’Civil Code’ only explains the application of the prohibition on infringement of personal rights,and does not specify the application procedures for the prohibition on infringement of personal rights.What procedure should be applied to the prohibition of personality right infringement and the disputes in the procedure design have not been clarified in academic circles and judicial practice.In order to avoid the judiciary falling into the predicament of no basis due to the blank of procedural rules,the injunction procedure for infringement of personality rights should be established as soon as possible to realize the effective connection between the Civil Procedure Law and the Civil Code.The injunction system for infringement of personality rights is based on the right to request personality rights.Although it has the characteristics of procedural law,it still belongs to the category of substantive law in essence.Personality right infringement injunction is different from behavior preservation.It does not need to rely on litigation procedures to maintain its legal effect.Once issued,it has the binding force of substantive law.It is an independent new system.At present,there are three paths for constructing an injunction procedure for the infringement of personality rights in academia and judicial practice,namely,applying the provisions under the existing legal framework,establishing a general judicial procedure for an independent injunction,and constructing an independent injunction procedure for the infringement of personality rights.However,at present,my country does not have the conditions to establish a general judicial procedure for an independent injunction,and the personality rights infringement injunction is quite different from the behavior preservation and personal safety protection orders in terms of nature,function and scope of application,and it is difficult to apply the existing relevant regulations.Therefore,an independent injunction procedure of personality right infringement should be constructed to ensure the effective implementation of the new system.The application procedure is the initial stage of constructing the prohibition procedure of personality right infringement,it is necessary to clarify the subject of the application,the scope of application and the guarantee system of the injunction against personal rights infringement.If I were a person with limited or no capacity for civil conduct,or I cannot go to the court to apply for an injunction in person due to special reasons,it should be allowed my close relatives,residents’ committees,villagers’ committees and public security to apply for an injunction for myself.In order to prevent the abuse of the prohibition system on personal rights infringement,the scope of application of the prohibition on personal rights infringement should not be arbitrarily expanded,and the personal interests of the deceased and the fetus should not be subject to the prohibition on personal rights infringement,but personal information rights are related to the right to privacy.Personality interests should be included in the protection scope of the prohibition on personal rights infringement.Guarantees should be provided when applying for a personal right infringement injunction,but we need to optimize the guarantee system.The introduction of guarantor guarantee can not only reduce the possibility of abusing the prohibition of personality rights,but also open up channels for low-income groups to provide guarantee.Judicial review as the key point in the procedure of prohibition of infringement of personality rights,should establish a unique way of review according to the functions and characteristics of prohibition of infringement of personality rights.The injunction procedure for infringement of personality rights may adopt a ’quasi-litigation procedure’,with a formal review first followed by a substantive review.In the substantive examination,the principle of the crossexamination mode is adopted to give the respondent the lowest procedural guarantee.Combined with the nature and characteristics of the prohibition on infringement of personality rights,the judicial review can be focused on three aspects: the illegal act is being implemented or is about to be implemented;if it is not stopped in time,it will cause irreparable damage;the applicant has preliminary evidence to prove it.Courts should issue injunctions prudently,and include the possible impact of injunctions on social and public interests into the scope of review in judicial review.The execution procedure is the key for the law to enter into real life.In order to ensure the execution of the prohibition of personality right infringement,it is necessary to clarify the effectiveness of the prohibition of personality right infringement.The scope of the applicant’s request and the restricted object of the prohibition on personal rights infringement can be appropriately expanded to adapt to the characteristics of the phenomenon of personal rights infringement on the Internet.An injunction against infringement of personality rights is a temporary relief measure that has no res judicata effect and should be limited to a six-month validity period.Personality rights infringement bans should be implemented with the courts as the mainstay and with the assistance of other organizations.When the person subject to execution is unable or refuses to perform the prohibition on infringement of personality rights,indirect execution,substituted execution and other methods may be adopted.If the person subject to execution obstructs the implementation of the ban or blatantly violates the ban,he may take coercive measures such as fines and detention.Where there is a right,there is a remedy,the respondent shall be given the right to apply for reconsideration,the reconsideration can be conducted by the court of the original instance,but the reconsideration personnel shall not be the judge of the original instance.If the case is complicated and the disputes are relatively large,the parties should also be granted the right to apply for a hearing.If the applicant erroneously applies for the right to infringe the injunction,he shall bear the corresponding legal consequences. |
