Research On The Application Of The Prohibition Of Personality Right Protection

"The Injunction System for the Protection of Personality Rights " is a new system in the Civil Code,which stipulates that the civil subject has evidence to prove that the actor is or is about to commit a tort.Failure to stop it in time will cause irreparable damage,and has the right to propose to the court measures to stop its tort according to law,which makes up for the lack of relief methods stipulated in the tort liability.In judicial practice,in view of the particularity of the prohibition on the protection of personality rights in substantive law and the independence of procedural law,the application of the prohibition on the protection of personality rights often occurs when the applicant abuses his rights to achieve his malicious purpose.The unclear construction of the prohibition procedure leads to many similarities or even overlaps between the prohibition on the protection of personality rights and the preservation of pre-litigation behavior,which requires the distinction between the two.Otherwise,there will be a situation where the boundary is blurred and the application is wrong.Due to the division of substantive law and procedural law,there are different theoretical studies on the nature of the personality right protection injunction.One theoretical point is that the personality right protection injunction has the nature of the substantive law,because the parties applying for the personality right protection injunction is based on the provisions of the substantive law,and the other theoretical point is that the personality right protection injunction needs to achieve its effect of protecting personality rights through procedures,which has the nature of procedural law.In the Anglo-American law system,the nature of the injunction is both substantive and procedural,because the Anglo-American law system does not clearly distinguish between substantive law and procedural law,the injunction itself is a relief method combining substantive norms and procedural norms.When analyzing the injunction for the protection of personality rights,it is impossible to understand and study its nature in substantive law and procedural law separately.The injunction for the protection of personality rights is stipulated in substantive law,but it requires judicial intervention to achieve procedural arrangements,indicating that the injunction for the protection of personality rights is both substantive and procedural,which provides a theoretical basis for the construction of the injunction for the protection of personality rights.The procedure of personality right protection injunction should be constructed based on the relevant provisions of the existing law.The reason why the parties choose to apply for the personality right protection injunction is that such relief can effectively and timely stop the infringement of the infringer,prevent themselves from being irreparable damage,or even further expand such damage.Considering the efficiency,impartiality and the procedural nature of the injunction,the procedure of personality right protection injunction applies to the non-litigation procedure.In addition,the role of the injunction on the protection of personality rights is to stop the infringer from infringing,and it is not a final requirement for the infringer to bear civil liability.Therefore,if the applicant requests the infringer to bear civil liability,it can apply to the court to convert the injunction on the protection of personality rights into ordinary proceedings,and this transformation needs to straighten out the connection between the internal structure of the injunction on the protection of personality rights and the proceedings,to avoid the inefficiency caused by the complexity of the steps.