Research On The Standard Of Review For Judicial Application Of Injunction Of Personality Rights

The personal rights injunction system is an original system in the Civil Code,which responds to the expectations of citizens for the protection of personal rights in the new era and improves the legal protection system of personal rights.Among them,the most direct effect is that the remedy of personality rights is expanded from purely ex post facto remedy to both ex ante prevention and ex post facto remedy.The traditional remedy for personal rights is ex post facto remedy,but the importance and specificity of personal rights have been further enhanced with the development of the times,and ex post facto remedy cannot meet the needs of personal rights remedy.In essence,damage compensation is the transfer of damage,and the transfer of damage does not lead to the elimination of damage,that is,the damage of personality rights does not disappear.At the same time,the infringement of personal rights in the network era is also different from the past,as the speed of information transmission in the network era has increased significantly,which is manifested in the expansion of the breadth and depth of infringement information dissemination,which leads to the increase of the severity of personal rights damage.However,the effectiveness of ex post facto remedies for infringement of personal rights in the network era is limited,and ex post facto remedies are not as effective as those for all recipients of infringement information.Therefore,more timely and effective remedies are needed for the protection of personal rights,i.e.,preventive and timely remedies for personal rights,i.e.,personal rights injunction.It is found that the application for injunction of personality rights is geographical in nature,and the number of cases of injunction of personality rights in Guangdong and Chongqing is much higher than that in other regions;the type of personality rights protected by application for injunction of personality rights is single,and the objects of protection of injunction of personality rights in current judicial practice are more spiritual personality rights such as the right to reputation;the judicial application of injunction of personality rights is limited,which is manifested in the limited number of applications on the whole on the one hand,and the limited number of substantive applications on the other hand.The judicial application of personality rights injunction is limited,on the one hand,by the overall limited number of applications,and on the other hand,by the limited number of substantive applications,and the number of successful applications is even more limited among the cases of substantive judicial application.At the same time,based on the study of judicial cases of personality rights injunction,the problems in the judicial application of personality rights injunction are mainly manifested in the review standard of judicial application to be improved,specifically the degree of proof to be determined,the lack of refinement of imminent danger,the lack of clarity in the definition of the connotation of illegal acts,and the difficulty in the determination of "irreparable damage".After the establishment of the legal regulation of personal rights prohibition,strengthening the judicial application of personal rights prohibition has become an important issue in the implementation of the Civil Code.The normative basis for the judicial application of the personal rights prohibition lies in Article 997 of the Civil Code.Although this article only provides for personality rights,the personality rights here should include both personality rights and personality interests,and the exclusion of personality interests will affect the stringency of the personality rights protection system.The standard of review of the judicial application of the personal rights injunction is based on the fact that the provision can be summarized as proof,imminent danger,violation,irreparable damage,and the judicial application of the personal rights injunction does not have res judicata effect.The problems of the judicial application of the personal rights injunction standard of review are the degree of proof to be determined,the lack of refinement of imminent danger,the lack of clarity in the definition of illegal acts,and the difficulty in determining the "irreparable damage".The reasons for this are the divergent understanding of the procedural nature of personal rights injunctions,the complexity of the situation of imminent danger,the lack of conditions for judging illegal acts,and the unclear standard of "irreparable damage".In this regard,the basic path to improve the judicial application of personal rights injunctions should be based on its problems and causes,from the clarification of the standard of proof of evidence,the distinction of the specific circumstances of imminent danger,the clarification of the criteria for judging illegal acts,and the improvement of the criteria for determining "irreparable damage" to be developed.