Research On The Injunction Of Personality Rights In China

The civil code of the People’s Republic of China(referred to as the civil code)came into force on January 1,2021.Article 997 of the Civil Code stipulates the injunction of personality rights,that is,when someone is about to commit or is in the process of committing an illegal act against the personality rights of a civil subject,if the act is not stopped in time,it will cause irreparable damage to the subject,the subject has the right to apply to the people’s court,apply for ordering the person to stop relevant illegal acts.The newly founded injunction system of personality right in the civil code is a major legislative innovation.In China,before the execution of the personality right injunction system,the injunction system included personal safety protection order and intellectual property pre litigation injunction.The personal safety protection order is applicable in the field of family affairs,and the pre litigation injunction of intellectual property is applicable in the field of intellectual property protection.In foreign countries,the false punishment system of civil law system and the injunction system of common law system have similar functions to that of China.The introduction of the injunction system of personality right is not achieved overnight.Legislators established the injunction system of personality right on the basis of drawing experiences from similar systems at home and abroad.It is controversial whether the injunction system of personality right is a substantive system or a procedural system.Through the comparison with the relief system of tort liability personality right,the notice system of network infringement personality right,the behavior preservation system and the advance execution system in the procedural system,it can be said that the injunction of personality right is a substantive rule,but its applicable procedure is a procedural rule.It can be said that the effectiveness of the injunction of personality rights directly comes from the substantive personality rights,rather than the procedural litigation rights.Since the implementation of the civil code,there have been few cases in which the people’s court has applied the personality right injunction system.The more famous cases are the case of a real estate company and Li’s personality right injunction,the case of Liu Tao and an import and export company in Guangzhou,the case of Zhang’s personality right injunction,and the case of Chen and Liu’s personality right injunction.The reasons for the few cases are as follows: first,the documents of personality right injunction belong to the scope that the documents of the people’s court are not online,resulting in a low proportion of accessible documents;second,the civil code has only one article on the injunction of personality rights.There are some difficulties in the application of the injunction system of personality rights in judicial practice,such as non-specific constituent elements,no appropriate procedures in procedural law,and no corresponding implementation rules in execution,resulting in less application of the injunction of personality rights by the people’s court.Therefore,we can construct the realization procedure and implementation rules of the injunction of personality right through the constituent elements of the injunction of personality right,so as to ameliorate the injunction system of personality right.The specification of the constituent elements of the injunction of personality rights focuses on four aspects: object,behavior,damage result and legal effect.There is no procedure to realize the injunction of personality right in the existing civil procedure law.This thesis discusses the construction of the procedure to realize the injunction of personality right from the formal examination and substantive examination of the injunction of personality right.On the other hand,the implementation of the injunction of personality right can be improved in the aspects of start-up mode,start-up subject,implementation measures and so on.