Research On The Procedural Construction Of Personality Rights Injunctio

The Civil Code newly establishes the personality right injunction,which gives civil subjects a way to protect the integrity of personality rights without prosecution,but does not provide for the corresponding trial procedures.Due to the lack of guidance on the specific application of the procedure,the court also faces the problem of procedural choice when hearing cases of personality right injunction,some courts have drawn on habeas corpus to make the injunction,and some courts have made the injunction with reference to the behavior preservation procedure,leading to confusion in practice in the application of the procedure.The existing system in China,in addition to behavior preservation,habeas corpus,prior execution can also achieve the purpose of protecting the rights of the parties before the judgment is made,but these procedures and personality injunctions have a certain degree of incompatibility,it is difficult to apply them to the trial of personality right injunction.And adjusting the behavior preservation and making it independent from the litigation procedure will bring the problem of the systemic nature of behavior preservation itself.In the application of existing procedures and adjustment of existing procedures are difficult to match the situation of personality right injunction,the establishment of a new personality rights injunction procedure is particularly necessary.The making of a personality right injunction will substantially affect the relationship between the parties’ rights and obligations,and there are two opposing parties,so the newly established personality right injunction procedure should be litigation procedure.However,the long trial period of ordinary litigation procedure and the existence of practical factors such as litigation delays may lead to inefficiency of the trial,so it is not appropriate to try the injunction of personality rights through ordinary litigation procedure.However,this does not mean that personality right injunction can be heard by non-litigation procedures.Although the phenomenon of non-litigation of litigation events exists in some countries,but this process is based on its non-litigation procedural code,China does not exist this institutional premise.The application of litigation jurisprudence and non-litigation jurisprudence is also problematic,China’s "Civil Procedure Law" does not exist in a separate list of non-litigation jurisprudence,so what non-litigation jurisprudence should be applied,what stage of non-litigation jurisprudence is in doubt.A feasible path is to construct the personality right injunction by means of an summary proceeding.The court does not need to follow the requirements of ordinary litigation procedures,and can omit some parts of the process to achieve the effect of quick decision.Summary proceeding should also follow the basic requirements of litigation procedures.Litigation procedures in China have strict application conditions,only when these conditions are met,the court can accept.The personality right injunction procedure should also set the corresponding admissibility conditions,otherwise the court can simply reject the application.In the admissibility conditions,the eligible applicants need to pay particular attention.The former can be applied for by a subject other than the right holder when certain conditions are met.However,it is inappropriate to make such a provision for the injunction of personality rights,which can only be applied for by the right holder.In the premise of meeting the conditions of acceptance,the court can review the application of the right holder on the merits.Drawing on the review conditions of extraterritorial injunction and the practical experience of behavior preservation,the court should examine the infringement(or possible infringement)of personality rights,the irreparable damage,the possibility of success,and weigh the interests of both parties when considering the application for a personality right injunction.Only when the application meets the above-mentioned conditions can the court rule to grant a personality right injunction.Due to the position of temporary protection of injunction,the injunction decision can only last for a specific period of time,after which it automatically expires.After the injunction hearing,either party may also file a lawsuit for infringement of personality rights with the other party as the defendant.If the People’s Court’s effective judgment finds that the application for a personality right injunction is wrong,the respondent can claim damages.