The Applicable Conditions Of The Injunction Of Personality Right

The network infringement cases have surged,especially those related to the infringement of personality right,and the damage results are often in a continuous state.If not stopped in time,the victim’s reputation and privacy may be seriously damaged until it is irreparable.How to protect victims when they are faced with ongoing or imminent violations of personality right? This is an urgent problem in reality.For victims,if their right and interests are protected through conventional legal channels,lengthy and complicated litigation procedures can easily cause damage and continue to expand to the point of irreparability.Article 997 of the Civil Code provides for the first time a system of injunction on personality right,and although the injunction system cannot finally determine the relationship between the right and obligations between the parties,applying for an injunction can obtain timely relief,which can quickly and effectively protect the personality right and interests of the victim.This system strengthens the preventive function of infringement of personality right and provides effective guarantees for the protection of personality right.Before the promulgation of the Civil Code,China’s injunction system was mainly applicable to the field of intellectual property right,but in the field of personality right,there were no clear legislative provisions to apply,and there were cases in judicial practice where rulings on conduct preservation were used to remedy personality right disputes.Judging from the few cases about the application for injunction of personality right presented in practice,it is found that since the injunction on personality right is still in the exploratory stage,the system of injunction on personality right presents problems in judicial application,such as unclear substantive conditions,inconsistent court trial procedures,unclear content of court review,and uncertain effect of personality right injunction.The reason behind this is ultimately the imperfection of legislation.The theoretical controversy in academia on the system of injunction of personality right is embodied in: first,determining the nature of the injunction on personality right;second,how to determine the legal nature of the application procedure for the personality right ban system.Addressing these fundamental issues is therefore realistic in order to conduct an in-depth study of the conditions for the application of the system of injunction on personality right.For the legal application of the injunction of personality right,the article starts from three aspects: the substantive conditions,the procedural elements and the effect of the injunction of personality right.First,the analysis of the substantive conditions of the personality right ban includes: first,the understanding of ‘illegal acts’;second,judgments of ‘failure to prevent in time’ and‘irreparable damage’;second,the analysis of the procedural elements of the personality right ban includes: first,clarifying the selection of the procedural model of the personality right ban;second,fully consider the court’s review content,including the consideration of the ‘possibility of winning the lawsuit’ and weighing the interests of both parties and taking into account the public interest;third,analyze the determination of the evidentiary elements of illegal acts.Finally,the effect of the personality right ban includes the effect of personality right and whether the legal responsibility for wrongly applying for the ban is bearable.The article based on the problems existing in the operation of the conditions for the application of personality right injunction,puts forward concrete suggestions to improve,including constructing the guarantee system of the injunction of personality right;clarify the connotation of ‘failure to prevent in time’ and ‘irreparable damage’;clarify the standard and burden of proof of evidence elements;construct an independent procedure for the injunction of personality right;add the penalty rules for damages in case of wrong application.