A Study Of Expedited Procedures For Injunction Of Personality Rights

Article 997 of the Civil Code creatively establishes the institution of the injunction of personality rights,which aims to prevent irreparable damage to the personality rights of the civil subject by stopping the infringement being committed or in danger of infringement.Network infringement of personal rights is rampant,especially in today’s information culture,the traditional tort liability law built by the personal rights protection system focuses on the right to post-facto relief,personal rights infringement on the Internet has the characteristics of anonymity of the subject,object complexity,rapid dissemination,and damage that is difficult to repair;therefore,relying solely on post-facto relief will inevitably fail to adapt to the changing times;however,personal rights injunctions can fill this gap and serve as a preventative measure.Personality rights injunction is a unique injunction in substantive law,which can be independent of civil litigation procedures,provide civil subjects with a quick way to protect personality rights,make up for the shortcomings of the traditional tort liability law system that focuses on ex post facto remedies,and bring into play the defensive function of personality rights.It is a substantive law injunction,which is very different from the existing legal protection system of personality rights in China,so there is no procedure directly applicable to it.In judicial practice,the use of personal rights injunction is mostly realized by means of behavior preservation procedures,which obviously cannot make the function of personal rights injunction to be effectively played.China’s existing law does not provide for the docking procedure of personality rights,and the application of personality rights injunctions in judicial practice is mostly through other procedures with the function of personality rights protection,but these procedures are not actually compatible with personality rights injunctions,which is obviously not a long-term solution,which not only does not allow the function of personality rights injunctions to be effectively played,but also causes confusion in judicial practice.Personality injunction has its own special procedural requirements,which must ensure that the injunction can be issued promptly in emergency situations,but also to ensure the basic procedural rights of the parties.The existing litigation procedures and non-litigation procedures in China cannot satisfy this point.At present,the provisions of courts at all levels on speedy adjudication and the procedural requirements of personality rights injunction are very suitable,so an independent speedy adjudication procedure should be constructed for personality rights injunction in order to maximize its function.In constructing the expedited procedure of personality rights injunction,the rules should be designed to address the function and nature of personality rights injunction and the problems existing in judicial practice.The court of jurisdiction of the expedited injunction procedure should include the court of the applicant’s domicile and the Internet court;the scope of the subject matter of the expedited injunction procedure should not be too narrow;the trial of the expedited injunction procedure should be conducted by a single judge and the trial period should not be too long;the judicial review of the injunction application should be adjusted to the object of proof and the standard of proof,and the evidence submitted by the applicant only needs to prove the existence of infringement or the threat of infringement and the irreparable damage that will occur if the infringement is not stopped.The evidence submitted by the applicant only needs to prove the existence of infringement or the threat of infringement and the irreparable damage that will occur if the infringement is not stopped,and it is not necessary to prove the establishment of infringement,and only needs to meet the standard of "greater likelihood".The court should promptly notify the parties if the case is found to be complicated in the process of speedy trial,and transfer the case to the ordinary procedure for trial.