Judicial Application Of The Injunction System Of Personality Rights

Article 997 of the Civil Code of the People’s Republic of China establishes the system of personal rights injunction,aiming at the prior prevention of possible infringement of personal rights and making up for the inadequacy of the existing judicial remedies.As a newly-created system,the injunction of personality rights is regulated by only one article of Article 997 of the Civil Code,which leads to the unclear application criteria for the issuance of injunction by judges in judicial practice and the tendency of case-by-case determination,and even the phenomenon of different judgments and contradictions among similar cases.In this paper,we discuss the new system of personality injunction with the title of application of personality injunction,in order to better apply the system of personality injunction.The first part of this paper to the legislation of personality rights ban as the source,in the civil law system and the common law system on the basis of the study of the ban,China’s personality rights ban legislation to trace the origin,and then dig the institutional and theoretical basis of China’s personality rights ban,it is not difficult to find that China’s judicial practice of personality rights ban has long been involved,the relevant legislation has also long been involved,then in the modernization of the rule of law today,the personality rights ban system It can be said that the water is ready.Then the attributes of personality rights injunctions are discussed,summarizing the existing academic theory,scholars have not yet reached a consensus on the attributes of personality rights injunctions,there are two kinds of substantive law and procedural law;substantive law and procedural law are not opposing relationships,this paper believes that personality rights injunctions both substantive law and procedural law attributes.In the second part,the existing judicial decisions in judicial practice are used as a blueprint to analyze the dilemmas in the application of the personality rights injunction system,such as unclear application criteria,lack of procedural docking mechanism,and unclear scope of application,etc.It is also because of these application dilemmas that lead to the phenomenon of different judgments of different judges in different areas of judicial practice in similar cases.After a brief summary of the dilemma of the application of the personality right ban,only then can the application of the personality right ban.The third part of the interpretation of the conditions for the application of personality injunction,mainly from the interpretation of the elements of the application of personality injunction in Article 997 of the Civil Code,the application of extraterritorial elements of personality injunction to discuss the criteria for the application of personality injunction,such as whether security is required,whether the issuance of personality injunction needs to consider the success rate,in order to better apply in judicial practice.Finally,the legal effect of the application of the injunction of personality rights is discussed,and the effectiveness of the injunction of personality rights after the issuance of the injunction of personality rights can be referred to the habeas corpus,which stipulates that the maximum validity of the injunction of personality rights shall not exceed 6 months;the remedy of the wrongful application of the injunction of personality rights is discussed,and the principle of fault responsibility is adopted with reference to the notification system,and it is considered that the applicant in the wrongful application of the injunction of personality rights.The respondent can take another lawsuit to protect its legitimate rights and interests.The fourth part refines the rules of application of personality injunction in China,from two perspectives of refining the review of personality injunction and improving the remedies of personality injunction,and proposes the refinement of the rules of application of personality injunction,starting from the dilemma of applying personality injunction in judicial practice in the third chapter of this paper,in order that the application of personality injunction in practice can better play its function of prior prevention and the institutional value of protection of personality rights.