A Study Of The Rule Of Injunction Of Personality

In the 21 st century when the Internet technology is deeply developed,there are numerous acts of blatantly publishing remarks or contents that damage others’ personality rights on the network platform,which not only cause indelible harm to the parties concerned,but also seriously affect the good network environment and social stability and order.The damage to the right of personality is irreversible,and it is difficult to restore the victim’s human dignity to a complete state after the damage has occurred.Recognizing the above problems,China began to gradually strengthen the protection of personality rights.The Civil Code has realized an innovative development of personality rights by making a separate part of personality rights under the summary of legislative experience,judicial practice experience and theoretical research results on personality rights.One of the highlights is the provision of the rule of prohibition of personality rights in Article 997 in order to give more comprehensive protection to personality rights,to fill the gap of prior remedy of personality rights,and to prevent the occurrence or expansion of damages in a timely and effective manner.The establishment of this rule has made up for the shortcomings of the protection of personality rights,innovated the establishment of a new type of personality rights remedy rules,highlighting the legislative concept of respect and protection of personality rights in China.However,the development of China’s personality rights injunction rule is in the early stage of legislation,except for Article 997,there is no other relevant legal provisions or judicial interpretation to guide the implementation of the rule,from the judicial status of personality rights injunction,it is necessary for China to issue judicial interpretation,the publication of guiding cases to solve the various problems that arise in the implementation of personality rights injunction.This paper will go deeper into the legislative intent of the rule of personality rights injunction as the object of study,to carry out research on the application of the rule of perfection,mainly divided into four parts of the content.First,the basic theory of the rule of personal rights injunction is elaborated.Starting from the meaning of the prohibition,the meaning,characteristics,functions and legal attributes of the personality rights prohibition are clarified.The unique content and characteristics of the rule of personality rights injunction are analyzed by comparing the legislative purpose,scope of application and independence from litigation of both parties.Secondly,the legislative and judicial status of the rule of personality rights injunction is sorted out,and the various problems of the rule of personality rights injunction in China are explored by combining the legislative development and analysis of adjudication cases.In terms of legislation,the legal provisions of the rule are too principled and abstract,and the unique Article 997 cannot meet the needs of practice.In terms of justice,the statistics and typical case analysis of cases related to the rule of personality rights injunction in the past two years have revealed that the lack of clear review standards,uniform review procedures and enforcement procedures as well as the lack of corresponding remedial measures in the process of trial has led to unclear court reasoning and even different rulings in similar cases.Again,the relevant legal provisions of the relevant extraterritorial countries are enumerated.The legal attributes,applicable conditions and procedures of injunctions,pseudo-dispositions and preventive measures of the United Kingdom,the United States,Japan,Switzerland and other countries are analyzed,and the highlights of the design are explored and summarized,with a view to giving reference to the improvement of the rules of personality rights injunctions in China.Finally,we provide some suggestions for the improvement of the rules of personal rights injunction.The main suggestions include improving the corresponding legislation,suggesting the issuance of judicial interpretations,and publishing guiding cases to improve the relevant provisions of the rules of personality rights injunction.Refine the criteria for reviewing the application conditions,clarify the criteria of urgency and irreparable damage,determine the standard of proof for injunction applications,and require the court to weigh the interests of both parties as well as the public interest.Clarify the application procedure,determine the scope of the subject of the injunction application,the form of review by the court,and in the process of review,in order to protect the rights and interests of the parties,the interrogation procedure should be applied,choose to apply the hearing procedure to help the judge to make a quicker decision on whether an injunction should be issued,and distinguish different circumstances of the case to reasonably require the applicant to provide security.In terms of improving the enforcement procedures and post-event remedies,the enforcement subjects should be expanded,different authorities should be responsible for different enforcement contents,and the enforcement period,enforcement measures and legal remedies for the parties should be clarified.Through the above study,we expect to provide ideas for the improvement of the rules of personality rights injunction.