Research On The Right Of Personality Ban System

The prohibition system of personality right established in Article 997 of the Civil Code of the People’s Republic of China is an important innovation in the compilation of personality right of China’s civil code,and the fourth attempt of the prohibition system after the maritime field,intellectual property field and family affairs field.The main function of the prohibition of personality right is to provide timely and effective relief for the right holder by preventing and stopping the infringement of the perpetrator.By protecting the node of public power to personality right in advance,the protection dimension of personality right ban is broadened,so as to provide a new way for protecting personality right.At present,China’s personality right ban system is still in the exploratory stage,and there is no clear answer to some controversial issues such as the scope of protection and applicable conditions.This paper starts from the connotation of the personality right ban,through the analysis of similar system,analyze the legal characteristics of personality right ban in our country,function and value,applicable conditions,legal effect and legal consequences of the wrong application,at the same time,the useful experience of the relevant system,to perfect the system of personality right ban in China.Except for the introduction and conclusion,the article is divided into five parts.The first part is the theoretical interpretation of the personality right prohibition system.Firstly,explain the connotation of the prohibition of personality right before,during the relief after the remedy of the case;secondly,explain the substantive legal attribute,temporary and independence of the prohibition of personality right.By comparing the connection and differences between the rights of personality right ban and behavior preservation,personal safety protection order,advance execution and stop infringement,it shows the irreplaceability of the personality right prohibition system in the personality right protection system;finally,the unique function and value of personality right ban are expounded.That is,the prevention function and the relief function,as well as the fair value and the efficiency value.The second part traces the legislation of the ban system and analyzes the development status of the personality right ban system.From China’s exploration of the ban system in the maritime,intellectual property and family fields,to the establishment of the personality right ban system in the Civil Code.By analyzing the legislation and judicial status quo of personality right ban,the main problems existing in the legislation and judicial practice of personality right ban are introduced.The third part analyzes the dilemma of the application of personality right ban in China.It includes the application subject and the scope of protection of the personality right ban,the identification standard of "imminent illegal act",the damage standard of "difficult to compensate" and the proof standard of the application conditions of the personality right ban,and how to apply the guarantee system;and finally analyzes the legal effect of the personality right ban and the legal consequences of the applicant’s wrong application.The fourth part,the investigation of the relevant systems outside the region.By analyzing the relatively perfect ban system developed in the British-American law system and the mainland law system,the beneficial experience of solving the application of the prohibition of personality rights in China,including the consideration of interest factors,the attention of procedural guarantee and the reasonable application of the guarantee system,to provide inspiration and reference for the following suggestions.In the fifth part,the paper proposes the application of the ban of personality rights.First of all,we should strictly grasp the application subject and protection scope of the ban on personality rights.The application subject of the prohibition of personality right shall not be limited to the infringed himself.If the person without civil capacity or limited civil capacity suffers the infringement of personality right,he shall allow his legal representative,close relatives or social organization to apply for the prohibition of personality right on his behalf.If the right of name,reputation and honor of a legal person or an unlegal person organization is infringed,the legal person or an unlegal person organization may also act as the subject of application for the prohibition of personality right.The scope of protection of the ban on personality rights shall be strictly limited to personality rights,and the protection of personality interests shall be limited to a reasonable range.If the protection of personality interests is excessively strengthened,the distinction between personality rights and personality interests may be diluted,causing improper restrictions on people’s behavior freedom.Secondly,the applicable conditions of the ban on personality right are refined,including the identification standard of "imminent illegal act",the damage requirements of "irreparable" and the improvement of the standard of proof.Third,the application of personality right ban does not take the notice deletion rule as a precondition,otherwise it will limit the free choice of relief methods.When applying the guarantee rules,distinctions should be made according to the actual situation of the case,which can not only effectively prevent the abuse of the ban,but also provide effective guarantee for the respondent when the application for the injunction is wrong.Fourth,the validity period and the invalidation mode of the personality right ban should be properly regulated.The validity period of the ban may be determined by reference to the period of the habeas corpus order and individual circumstances.The prohibition of personality right may expire during a term or due to the application of the parties or the court according to its authority.If the applicant wrongly applies for the prohibition of personality right,he / she should bear the corresponding compensation liability to the respondent based on the liability principle of fault liability.Finally,when issuing the ban,the interests of both parties should be considered,and economic benefits and ethics should be taken into consideration together.On the basis of learning from the useful experience outside the region and combining with the judicial practice.