Research On The Procedure Realization Of The Injunction Of Infringement Of Personality Right In Civil Code

The injunction of the right of personality is a new way of protecting the right of personality set up in the Civil Code,which is of great significance to the protection of the right of personality.According to the principle of exhaustion of procedures,the ban of personality right should be applied comparably to the existing procedures.However,the current situation shown by the existing comparably applied cases indicates that the existing procedures are difficult to fully fit the ban of personality right in the scope of application and applicable rules,which makes the ban of personality right fail to give full play to its due function.How to perfect the cohesive procedure and applicable rules of personality right prohibition is the question to realize personality right prohibition.The first part explains the theoretical and practical significance of the research on the injunction of personality right under the current social and legal background,and sorts out the current research status at home and abroad on the implementation of the injunction of personality right.The second part clarifies the basic principle of the injunction of personality right.The injunction of personality right is a kind of protection method of personality right with the characteristics of the injunction of common law system.It is specifically a protective measure to exert the ability to prevent and prevent the expansion of damage.The injunction of personality right is a kind of injunction with both entity and procedure attributes.It has the function of prevention and protection and quick relief.Its value presupposition is embodied in the efficiency value of realizing the injunction function and the purpose of creating the injunction,the judgment of substantive dispute and the just value reflected by procedural justice.The third part combs the judicial practice cases since the emergence of the injunction of personality right,reflecting that the current injunction of personality right mainly applies behavior preservation and personal safety protection order system in comparison,and behind it reflects that the injunction of personality right has no appropriate and only applicable procedure,rules are not suitable,and there is a lack of systematic procedural rules.The fourth part points out that it is more reasonable to construct the independent procedure of personality right injunction under the jurisprudence of non-litigation procedure.The prohibition of personality right is difficult to adapt to the existing procedures in the litigation system.The behavior preservation system differs greatly from the prohibition of personality right in terms of legislative purpose,procedural effectiveness and litigation dependency.Although the personal security protection order and the ban of personality right are special and general,the personal security protection order,as a special procedure,has a limited scope compared with the ban of personality right.The existing procedures cannot fit the applicable scope of the injunction of personality right and realize the proper function of the injunction of personality right.In theory,the tactical procedure conforms to the construction demand of the injunction of personality right,but the entity norm of the injunction of personality right can not support the specific creation idea of the tactical procedure,can not provide support for the generalized injunction of personality right,and the feature of non-substantive dispute is inconsistent with the characteristics of the review of the injunction of personality right.The program design of non-litigation procedures meets the requirements of procedural efficiency,procedural setting conforms to the legal system,and safeguard measures meet the requirements of procedural justice,which has the applicability of constructing the injunction of personality rights.The fifth part provides the conception of specific procedural rules for the construction of the injunction of personality right,and combines non-litigation jurisprudence to clearly define the procedural application rules that general personality interests and near relatives should not apply the injunction of personality right to protect the personality rights of the deceased.It clarifies the examination conditions and limits under different types of personality rights,and clearly guarantees the objection right of the respondent in the procedure.Clarify the relief rules of the parties who suffered losses due to the abuse of the injunction procedure of personality right,clarify the rules of exceptional application of the guarantee system,and clarify that the injunction of personality right can connect with the lawsuit of personality right and the alternative relationship between the injunction of personality right and other litigation procedures.