| The injunction of personality right infringement(hereinafter referred to as the injunction of personality right)originated from the civil injunction in the common law of Britain and the United States.As a rule of personality right protection,it plays an important role in the emergency relief of the infringed and has been accepted by all countries in the world.Before the ’ Civil Code ’,China ’s protection rules for personality rights were mainly tort laws and regulations,pre-litigation behavior preservation and other systems,but most of these systems focused on the relief of personality rights afterwards,and it was difficult to protect personality rights comprehensively.The provisions of Article 997 of the Civil Code of the People ’s Republic of China on the prohibition rules of personality rights in China are mainly reflected in Article 997 of the Civil Code of the People ’s Republic of China,which realizes the comprehensive relief of personality rights to a greater extent,makes up for the legislative loopholes in the previous civil law rules for the ex ante relief of personality rights,and reflects China ’s high attention to the respect and protection of personality rights.As an emerging preventive relief measure,the prohibition of personality rights is simple in the Civil Code.At the same time,the Civil Procedure Law has not yet issued corresponding procedural rules.A large number of scholars and judicial judges have a misunderstanding of the personality right injunction system,and there are disputes about the independence of the personality right injunction procedure and the construction of specific rules of the procedure.Whether and how to construct the procedure of personality right injunction to ensure the realization of the legislative purpose of personality right injunction system is an urgent problem to be solved.Firstly,this paper discusses the independence of the injunction procedure of personality right around the following three questions.First,the relationship between the right to request the injunction of personality rights and the right to request personality rights,the difference between personality rights relief and property rights relief.The second is the relationship between the personality right injunction and the pre-litigation behavior injunction and the personal safety protection order.The third is the nature of the prohibition of personality rights.In view of the particularity of the right to injunction and the injunction system of personality right,the injunction of personality right has the dual nature of substantive law and procedural law,and the injunction procedure of personality right is independent.Secondly,this article from the personality right ban with the complaint The non-litigation procedure and the degree of adaptation between litigation and non-litigation procedures are discussed.From the perspective of the expectation that the personality right injunction procedure has both efficiency and fairness,a simple non-litigation procedure may easily damage the legitimate interests of the respondent.Similarly,strict litigation procedures are difficult to apply to the injunction of personality rights because of their inefficiency.In order to meet the two value expectations of efficiency and justice in equity,we should comprehensively use procedural jurisprudence and non-litigation jurisprudence to complete the construction of personality right injunction procedure.Finally,on the basis of determining the procedural path of the injunction of personality right,combined with the existing relevant injunctions in China and relevant foreign legislative experience,this paper analyzes the specific rules design of the injunction of personality right from the aspects of application conditions,relief procedures and injunction period of personality right,and draws the following conclusions : First,the application conditions of the injunction of personality right should include the following conditions : the qualified applicant,the respondent ’s clear and specific request and the ability to provide evidence to prove that the damage is happening or about to happen.Second,the application for the prohibition of personality rights should examine the elements of the announcement of interests;third,the applicant does not need to provide guarantees to obtain a ban;fourth,the time limit for the injunction of personality rights should be flexible and the respondent can be reversely protected during and after the application. |
