Research On The Application Of The Injunction Rules Of Personality Rights In China

The injunction on personality rights stipulated in the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code)in 2021 is another successful attempt by China’s injunction rules in the field of personality rights after the field of intellectual property and family affairs.The application of the rules on the injunction of personality rights extends the mechanism for the realization of personality rights protection from damages to preventive protection measures,and advance the protection time to the time of infringement or even before it occurs.It not only conforms to the international environment that highly respects and attaches importance to the protection of personality rights,but also meets the practical needs of personality rights protection in China.Before the implementation of the injunction on personality rights,China has already had a personal safety protection order in the field of family affairs,which can be regarded as an injunction on physical personality rights in a specific field.And the rules on the injunction of personality rights are consistent with the rules on preservation of conduct and prior enforcement in civil litigation in terms of normative purpose and function.By analyzing and comparing the similarities and differences between the personality rights injunction and the three rules,it can be seen that the personality rights injunction is the result of the right to claim personality rights and a civil rule in the scope of substantive law.It does not depend on the personality rights litigation procedure,and procedural independence is an important feature that distinguishes it from the preservation of conduct and prior enforcement.The injunction rules originate,develop and mature in common law countries,and their application in the field of personality rights in China is still in the exploratory stage,so there are still issues to be studied in depth in their application.First of all,the injunction on personality rights lacks clear criteria for reviewing the conditions for their application.The provisions of the Civil Code simply incorporate the injunction rules into the personality rights protection system,and the personality rights injunction rules can effectively avoid the infringement of personality rights at a macro level,but the provisions of the law on the conditions for the application of the injunction on personality rights are too abstract and vague,which undoubtedly increases the difficulty for courts to review the conditions for the application of the injunction.As a kind of prior protection measure,the possibility that the right holder will suffer "irreparable damage" is one of the important conditions,but it is difficult to reach a consensus on the criteria for determining "irreparable damage" in both academic circles and practice.Moreover,it is not clear whether the "illegal act" in the legal provision is an expression with a reminder function or a "illegality" requirement for the object matter to which the injunction applies.In addition,with regard to the standard of proof,the law has not yet clarified the extent to which the facts of infringement and the above-mentioned conditions must be proved in order for the applicant to obtain injunctive relief for personality rights.Secondly,the injunction on personality rights lacks normative procedural rules for its application.The law does not stipulate the nature of the personality rights injunction procedure and whether the guarantee rules are applicable or not.And the procedural independence determines that the personality rights injunction procedure and the litigation procedure are parallel,and how to coordinate the two procedures is also worth considering.In addition,the problems of effectiveness of the personality rights injunction in its application,such as the specific time for restricting the respondent’s free rights and interests,and whether the parties can continue to initiate litigation proceedings on the same infringement fact,cannot be determined.Moreover,after the promulgation of the personality rights injunction,there are gaps under the existing legal norms such as what legal responsibility the applicant should bear for the wrong application for the injunction,and the legal consequences of violating the injunction.The review of the conditions of application is the key to the court’s decision to grant an injunction.The lack of clarity in the conditions of application will lead to confusion in the judicial application of the injunction on personality rights,which will greatly hinder the realization of the legislative purpose of the rules on the injunction of personality rights.Taking the "traditional four-element" standard used in the review of courts in common law systems as a guide,China should distinguish "irreparable damage" according to the type of personality right and the nature of the benefit arising from the right.Then the standard of proof should be applied elastically depending on the form of infringement.And the weighing of interests between the parties and the impact on the public interest should be included in the judgment of "illegality".At the same time,the factors of the injunction are examined from the perspective of interest measurement to ensure the legitimacy and appropriateness of the injunction on personality rights.Looking at the legal provisions of common law systems,Switzerland and other countries on the procedural rules for the application of injunction on personality rights,comparative law injunction procedures are contentious and belong to litigation procedures.While protecting personality rights,attention is paid to the procedural safeguards of respondents.The security deposit rules applicable when granting a personality rights injunction are procedural means of coordinating the balance of interests between the applicant and the respondent.Therefore,combining the practical experience in comparative law and the value goal of pursuing efficiency in the personality rights injunction,it is reasonable to recognize the personality rights injunction procedure as a non-litigation procedure and give the respondent certain procedural guarantees on this basis.And the application of the guarantee rule can compensate for the weak position of the respondent in the personality rights injunction procedure to a certain extent.Due to the unique nature of the personality rights injunction procedure in China,it is necessary to reasonably set up the connection between the personality rights litigation procedure and the injunction procedure.It not only helps to balance the value of procedural justice and procedural efficiency,but also respects the subjective status of the parties in the procedure.In order to ensure the smooth and effective implementation of the injunction on personality rights,the analysis of the effectiveness of the injunction and the relevant legal consequences should also be combined with successful experiences outside the territory,give judges appropriate discretionary space,and ensure the vitality of the injunction on personality rights with the necessary coercive force.