The Construction Of General Rules Of Civil Procedure Injunction Procedure

The Civil Code proposes an injunction system for personality rights,and the functions of injunctions and the areas involved are expanded,providing opportunities for future injunction systems.However,China’s civil procedure law does not cooperate with the injunction system to make procedural arrangements,only the behavior preservation system is similar to it.There are also scattered other substantive laws and procedural laws,such as the maritime injunction system,the pre-appeal injunction system in the field of intellectual property,and the application as a quasi-injunctive system.On the whole,there is a lack of systematic arrangements for injunction procedural rules,the norms are scattered and vague,and there is no detailed rule construction in terms of review mode and remedies.It is not enough to satisfy the development of the future prohibition system only by scattered legal provisions.Many scholars have proposed that an independent injunction procedure should be established to specifically cooperate with injunction-type cases.This paper proposes ideas based on scholars’ research,hoping to build general rules for civil injunction procedures.In the legislative tradition,in response to the requirements of the national codification of statutory law,the legislative logic system has been improved.To meet the needs of the judicial status quo,systematize the rules to facilitate the application of judges.At present,the basic provisions and useful experience of each injunction system in my country have been formed.Although there is no arrangement for injunction procedures in China’s civil procedure law,the further legislative basis for the construction of general rules of injunction procedures has been established.On this basis,we can proceed from the status quo of the current legal system,find out the existing problems,and collect useful practical experience.Appropriately refer to relevant foreign systems,extract common factors,find the best way to integrate injunction rules,and try to make injunction rules and existing civil procedures a legislative design and value law that can form a benign interaction.The maturity and perfection of general rule legislation are of great significance to the future progress and development of the prohibition system.The injunction procedure can adopt an abbreviated procedural structure,follow the principles of efficiency,procedural dueness,and the protection of the parties’ procedural interests,and set up a special chapter for the injunction procedure in the special procedure to meet the needs of injunction-type cases.The chapter only specifies the general rules of the injunction procedure,and the specific construction content should include: application,jurisdiction,review,relief mode,etc.At the same time,hearings and guarantees are added to the procedural settings to ensure the minimum procedural justice.Specifically,the applicant applies for an injunction based on prima facie evidence,and the court should conduct a formal review and a relative substantive review of the materials submitted by the applicant,but not make a judgment on the substantive legal relationship.Apply the reconsideration procedure for relief,use the method of guarantee to protect the rights and interests of the respondent,and use the method of hearing to facilitate the respondent’s claim.In the future,in terms of procedural application,general rules will apply to all injunction systems,and other specific rules can be constructed following the current law and in the form of judicial interpretations in the future to cooperate with different injunctions.Procedures such as injunction and act preservation and prior execution cannot be mixed and applied,and the parties are free to choose.It is necessary to compare and sort out many systems such as prohibition and preservation measures and prior execution.Sorting out the scope of application and system structure makes it more convenient for judges to apply,comprehensively applying various safeguards to protect the rights and interests of parties,and also making the system of safeguard measures for civil litigation more perfect.