Research On Judicial Application Of Injunction Of Personality Right

As a new institution in China’s civil judicial system,the injunction of personality rights has reversed the passive situation that the conservation of personality rights was not timely and competent due to the emphasis on post-compensation in the past,and provided a new idea of efficient and convenient pre-prevention of violations of personality rights.However,at present,China’s current law only provides general and abstract items on the application prerequisites of the injunction of personality rights.There are no detailed and clear provisions on the institution characteristics of the injunction of personality rights,the diversities between the injunction of personality rights and similar systems,the specific applicable conditions,the standard of proof,the standard of examination and the legal effect.In practice,different courts’ different understanding of the provision also led to the ambiguity of the application prerequisites of the injunction of personality rights,the different review standards,and the low application rate.Based on judicial practice,this thesis primarily uses the case study approach to research the injunction system of personality rights through analyzing typical cases,and clarifies that the system value of the injunction of personality rights is to stop illegal invasion in time when the invasion has not occurred or when the invasion has occurred but has not caused serious consequences,and to provide efficient and convenient pre-prevention protection for personality rights in emergency.The injunction of personality rights is premised on the invasion of the personality rights of civil subjects.Based on the characteristics of the dominant,absolute and irreparable nature of the personality rights,as long as there is any illegal invasion or improper obstruction that affects and interferes with the obligee’s complete control of his or her personal interests,even if the actual damage consequences have not yet occurred,the personality rights holder can also apply to stop the illegal acts.Therefore,the determination of invasion of the right to personality is not based on the subjective fault of the infringer,and does not require that the illegal invasion or improper obstruction has caused actual damage results,nor does it require that the infringer’s behavior constitute invasion.The right of personality injunction is based on the right to personality claim.This institution is different from the system of behavior preservation,and its application is not ground on the premise that the obligee attracts a litigation to the court.It is a substantive injunction independent of the litigation procedure;The legal constitutive requirements for the application of the injunction of personality rights include the application of the qualified subject to the court,the urgency of the invasion of personality rights,the applicant’s evidence to prove that others are committing illegal invasion or have the possibility of invasion,and the irreparable damage will be caused if the invasion cannot be stopped quickly;The court’s review of the injunction on personality rights should focus on balancing the benefits between the proposer and the respondent,as well as the balance between the conservation of personality rights and the realization of public interests.The injunction should not have adverse effects on social public interests.