Research On The Rules Applicable Of Injunction Of Personality Rights

The Civil Code’s separate title on personality rights is considered one of the biggest highlights of the Civil Code’s codification.Article 997 of the Civil Code marks the formal establishment of a personal rights injunction system in China.This move provides a new remedy for personality rights,realizing the change from a single post-facto remedy to both post-facto remedy and pre-existing prevention,implementing the requirements of protecting citizens’ personality rights since the 19 th National Congress,and also responding to the legislative requirements of frequent infringement of personality rights in the era of Internet and big data.However,the current personal rights injunction system only generally provides for the basic conditions for the right holder to apply to the court for a personal rights injunction,but does not clarify the specific criteria for its application,and does not provide for the specific rules of its application in the procedural path of standardization.This paper intends to clarify the basic theory of personal rights injunction,clarify the criteria for judging the conditions of its application,explore the best procedural model,and refine the specific rules of application,review,enforcement and relief of personal rights injunction,so as to fill the gaps in the rules of application of the personal rights injunction system and truly play its institutional effectiveness.The whole paper is divided into four parts.The first part discusses the basic theory of personality rights injunction,focusing on the nature and functions of personality rights injunction.It is one-sided to think that personality rights have the attributes of substantive law or procedural law,and personality rights injunctions should have the attributes of both substantive law and procedural law.Injunction of personality rights has the functions of preventing damage and timely relief,which can prevent the actual damage from occurring in the event of damage and further prevent the further expansion of damage in the event of damage.In the second part,the problems in the application of personality rights injunction are presented.For example,the lack of clear criteria for the application of personality injunctions has caused difficulties in determining the conditions for application and inconsistent factors for adjudication in practice.At the same time,the personal rights injunction is not compatible with the current litigation procedure model,and there are problems of incompatibility with ordinary litigation procedures and mismatch with non-litigation procedures.In addition,there is a gap in the procedural law and a lack of supporting rules for application.Although some scholars believe that personality injunction can be applied to behavior preservation and habeas corpus,in comparison,there are differences between personality injunction and behavior preservation and habeas corpus,which cannot meet the needs of personality injunction,therefore,an independent procedure of personality injunction should be constructed,and the specific procedural rules of its application,review,enforcement and relief need to be designed urgently.In the third part,we propose to improve the problem of unclear criteria for the application of personality rights injunction.For the determination of "imminent infringement",if the "threatened state" of not issuing an injunction is highly likely to be transformed into "actual infringement",it can be concluded that the respondent is committing or is about to commit an act that has a greater possibility of infringing the applicant’s personality rights.The act to be carried out by the respondent has a greater possibility of infringing the applicant’s personality rights.At the same time,the judge’s discretion must be exercised,from the judge’s experience,common sense and other aspects of life,comprehensive consideration of the necessity of issuing an injunction of personality rights,in the face of different situations of infringement,but also according to different standards of recognition.The criteria for determining the "irreparable damage" should not be generalized to the damage caused by the infringement of personal rights,but should distinguish the type of personal rights infringed by the perpetrator and the possible damage suffered by the applicant.For the infringement of the right to life,body,health,the three types of material personality rights caused by the damage,all identified as "irreparable".The damage caused by the right to name,portrait,reputation and other spiritual personality rights can be subdivided into property damage or spiritual damage.If the damage is caused by spiritual interests,it can be considered as "irreparable damage".As for the standard of proof,"proven" is interpreted broadly,pointing to the standard of proof of higher probability.In cases where the applicant suffers an imminent infringement and the court needs to make a quick judgment,the standard of proof of "greater probability" is sufficient.In addition,the impact on the public interest should be factored in,but it is not necessary to consider the likelihood of success of the respondent,nor is it necessary to make the "notice-and-delete" rule a precursor to the injunction of personality rights in online infringement.The fourth part,in response to the problem of the docking gap and the lack of supporting rules in the procedural law of personality rights injunction,the procedural rules are constructed from four aspects: application,examination,enforcement and relief.The application procedure specifies the subject of application for injunction of personality rights,the scope of protection and the requirement of the applicant to provide security depending on specific circumstances.Secondly,the examination procedure applies quasi-contentious procedures,and the combination of formal and substantive examination is adopted in the examination mode.It is not necessary to require both parties to appear in court at the same time to start the verbal debate and presentation,and whether to adopt the principle of court hearing and debate is decided by the judge according to the circumstances of the case,but the respondent must be given minimum procedural safeguards,i.e.,to protect its right to notice and the statutory right to be heard.In order to guarantee the implementation of the personal rights injunction,the effect of the personal rights injunction should be clarified.The scope of the personal rights injunction can be extended from the violator to other subjects involved in the case.The personal rights injunction does not have a final effect,but only a temporary effect.The period of effectiveness is determined by the judge’s discretion for different cases,but in principle shall not exceed six months.A model should be established in which the court and public security organs are the main enforcement bodies and other units such as villagers’ committees and residents’ committees assist in enforcement,and the respondents who refuse to enforce the law should be held criminally responsible for paying late performance fees and fines and detention.If there is a right,there must be a remedy.If the applicant is not satisfied with the court’s rejection of his application for a personal rights injunction or the applicant is not satisfied with the court’s ruling on a personal rights injunction,he may apply for reconsideration to the court that made the ruling,but the reconsiderator shall not be the judge of the original trial.If the case is complicated,the dispute between the parties is large or involves significant public interests,the court may organize a hearing between the parties.The applicant shall be liable for compensation for any loss of interest of the respondent caused by the applicant’s application error.