Research On The Application Of The Injunction On Infringement Of Personality Right In Civil Code

To suffer to prevent the personality rights to the victim caused irreparable damage consequences,lead to tort liability relief function weakening,the civil code has set up the personality infringement ban system,from the traditional personality rights infringement relief mode into prior protection mode,protect personality time node,timely prevent or stop the damage.At present,the ban on personality right infringement is still in the exploration stage of legal application,and the theoretical circle has a controversial understanding on the legal attribute and guarantee application method of the ban on personality right infringement.From the judicial practice of the few personality infringement ban typical cases,in practice "irreparable" elements judgment is not clear,front program setting is not unified,in the litigation process can apply for personality infringement ban is not clear,lead to personality infringement ban in the application is difficult to give full play to its due role.Therefore,through a thorough analysis of theory and practice of personality infringement ban dispute the main problem,from clarify the personality infringement ban applicable conditions,comprehensive considerations,clear legal effect,type applicable guarantee several aspects perfect the personality infringement ban specific applicable path,.So as to realize the effective protection of civil subject personality rightThe main text mainly includes the following four parts.The first part mainly expounds the nature and function of the prohibition of personality right infringement.As a ban on substantive law,the ban on infringement of personality right is a rapid realization mechanism of damage prevention in the field of infringement of personality right.It is a general form of habeas corpus protection order,and is independent of the system of behavior preservation and advance execution system.As for the legal attributes of the infringement of personality right,there are different claims such as litigation procedure,quasi-litigation procedure and non-litigation procedure.After comprehensive analysis,it is defined as non-litigation procedure more in line with the original intention of the establishment of the prohibition.From the perspective of functional positioning,it has the function of unblocking the relief channel of personality right,quickly realizing the preventive responsibility mode,and demarcating the boundary between behavior freedom and the protection of personality right.The second part mainly analyzes the main difficulties facing the judicial application of personality right infringement.In terms of the applicable conditions,Whether the protection scope of the prohibition of personality right covers personality interests,the standard of proof of evidence,the judgment of "irreparable" requirements,whether the notice rule is used as the pre-procedure,and whether the problem of applying for the prohibition of personality right can be excluded in the litigation process;In terms of considering the factors,Whether the court needs to consider the possibility of winning the lawsuit,weigh the interests of the parties and the public interests;In terms of the legal effect,The legislation does not specify the validity period of the prohibition of the right of personality,And the principle of applying for personality rights;In terms of the guarantee application,Whether security must be provided when applying for an injunction of personality right,How to calculate the amount of the guarantee.The above problems reflect that the ban of infringement of personality right needs to be further explored and continuously improved in the specific judicial practice.The third part mainly examines the prohibitions of some countries outside the region.The Injunctive systems of the United States and The United Kingdom require courts to adhere to the "four element standard" for judicial review,that is,the possibility of winning,the irreparable damage,the difficult weighing,and the public interest.Switzerland and Germany have respectively stipulated the preventive measures and false punishment system of personality rights,and limited their applicable conditions to the urgency of the infringement of rights and the need for urgent relief.On the basis of comparative investigation,the four inspirations of strict examination standards of the system,giving temporary effect,providing guarantee and strengthening procedural guarantee,have certain reference significance for improving the legal application of the prohibition of personality rights in China.The fourth part puts forward the specific path to improve the application of personality rights infringement ban in China.In terms of the applicable conditions,The protection scope of the prohibition of personality rights should be limited to the implementation of illegal acts of personality rights,To prove the high standard coverage,Multiple factors to identify the "irreparable" elements,No notification rules as preprocedure,In the process of litigation,it can still be applied for the infringement of personality infringement;In terms of considering the factors,Should comprehensively consider the possibility of winning the factors,reasonably weigh the interests of the parties and public interests and other factors;In terms of the legal effect,The period of validity is determined according to the specific type of personality rights,If you mistakenly apply for an injunction of personality right infringement,The civil liability of the applicant shall be investigated by applying the principle of fault liability;In terms of the guarantee application,Whether the applicant provides the guarantee should be typed for analysis,And the calculation of the guarantee amount should be considered comprehensively,In order to realize the substantive legitimacy and procedural fairness of the application of personality right infringement and prohibition law in China.