Research On The Procedural Construction Of Personal Rights Injunctions

Article 997 of the Civil Code of China provides for the injunction system of personality rights,which realizes the change of the trend of remedy for personality rights from ex post relief to ex ante prevention.As a logical extension of individual civil rights,the personal rights injunction system breaks the shackles of the traditional remedy model and dissolves the contradiction between the delay of rights protection and the prohibition of private remedy.However,the existing civil substantive law and civil procedure law for the nature of personality rights injunction,procedural positioning and procedural mechanism is still lack of a rigorous system structure and appropriate interface,the academic community on the legal attributes of personality rights injunction,applicable procedures,review standards,etc.There are different views in the adjudication of personality rights injunction,the gaps in the procedural rules of legislation undoubtedly put the judiciary in a dilemma of no way to rely on.In judicial practice,China’s personal rights injunction cases show an expanding trend,but the courts are still cautious about the application of personal rights injunction.The established cases show that most of the courts have tried personality injunction cases by referring to the procedural rules of behavior preservation or habeas corpus,and there is a misunderstanding or misapplication of the application procedures and review standards of the injunction.Based on this,the dilemma of judicial application of personality injunction is mainly reflected in the lack of independent operation procedures,vague application conditions and review standards,and the lack of supporting relief mechanisms for the bottleneck of procedural application.In terms of procedural orientation,the procedural law of personality rights injunction should return to the basis of substantive law,which has the special attribute of intertwined entity and procedure in nature.Secondly,as an independent remedy for personality rights,the procedure of personality rights injunction is different from that of the act of protection,which is not necessarily accompanied by litigation procedures,and is a non-preservation system for the independent protection of personality rights;its relationship with the writ of habeas corpus is not only general and special,but also reflects the difference between the degree of private protection and public intervention.Finally,in the choice of the path of the personal rights injunction procedure,the personal rights injunction is more inclined to the non-litigation procedure,and the overall should take non-litigation as the procedural design of the way in,and give the parties the necessary procedural protection.In the construction of the adjudication procedure of personal rights injunction,the design of the procedure should be conceived from the aspects of initiation,trial and review criteria,respectively,and combined with the special characteristics of personal rights injunction cases.The institutional function of personality injunction is manifested by the specific substantive elements,procedural elements and the corresponding review standards,and the judicial review is based on the degree of proof of the elements,the weighing of interests of both parties and public interest considerations.In this regard,the review standard of personal rights injunction should be the focus of the design of the adjudication procedure,including the judgment and determination of the standard of conduct,the standard of proof,the standard of harm and the standard of value measurement.In the design of the remedial procedure of the injunction of personality rights,the principle of balance of interests should be emphasized to ensure the speedy remedy of the injunction of personality rights while taking into account the procedural protection of the respondent.In this regard,multiple remedies are set up for the injunction procedure by giving the parties the right to know,the right to be heard,the discretionary requirement of the applicant to provide security and the clarification of the responsibility for the error of the application for the injunction,in order to give the necessary procedural protection to the respondent and prevent the abuse of the injunction system of personality rights.