Research On The Injunction System Of Personality Right

As a new system,the personal rights injunction system is a highlight of the Personal Rights Division.The personal rights injunction system marks the protection of personal rights from ex post relief to ex ante prevention,providing a timely and efficient remedy for personal rights.However,since the promulgation of the Civil Code,not many cases of personality rights injunction can be found,and the lack of detailed substantive provisions and procedural system of personality rights injunction may be an important reason for its low application rate.This article takes Article 997 of the Civil Code as the object of study,and discusses the scope of application,conditions of application and related procedural rules of personality rights injunction.The main text is divided into five main parts as follows:The first part,the nature and practical significance of the personality rights injunction system.China’s personal rights injunction system takes into account the dual attributes of substance and procedure,and its relationship with the habeas corpus system is general and special.The personal rights injunction system is an independent system that is not dependent on litigation,and is independent of each other and the behavior preservation system.The introduction of the personal rights injunction system responds to the need to strengthen the protection of personal rights,makes up for the inadequacy of the previous remedies for the protection of personal rights,and realizes the comprehensive protection of personal rights.The second part,the scope of application of the personality injunction.The personality injunction applies to the protection of the personality rights of both natural persons and legal persons and unincorporated organisations.In the case of the protection of the material personality rights of natural persons,the protection of personality injunctions applies to artificial parts of the body that have been implanted as an inseparable part of the body of a natural person,and not to property rights.for new personality rights that have not yet been crystallised in legislation,the injunction can also be applied where there is widespread recognition or a high degree of certainty.In the case of commercial exploitation of personality rights,the public interest can also be effectively protected through the intervention of a personality rights injunction.The third part,the subject of the application for the injunction of personality rights.Determining the subject of application for a personality right injunction requires a systematic interpretation of the provisions of Article 997 of the Civil Code regarding the applicant.Applicants include not only the right holder himself,but also close relatives,legal representatives and other organizations.Where the personality interests of the deceased are involved,the subject of the application for injunction of personality rights should also be specified.The respondent not only includes the subject of the direct implementation of the infringement,but also includes the third person who has the obligation as the infringement,in the network infringement,the infringers are numerous,the personality rights injunction involves a broader subject of the obligation.The fourth part,conditios of application of personal rights injunction.Based on the judgment of "urgency",there is a clear difference in judging whether the infringement has actually occurred,and different types of personality rights represent different degrees of urgency,and personality rights injunction is not the only means of relief,let alone the exhaustion of other remedies as a prerequisite for applying for a personality rights injunction.Illegality includes not only the actual illegality but also the possibility of illegality,and usually does not require fault.Illegality requires the exclusion of justifiable conduct,both to exclude the existence of illegal deterrents in the application of personal rights injunction,but also to achieve a balance with the public interest.Irreparable damage requires irreversibility,and in some special cases the damage is difficult to quantify specifically also falls within the scope of irreparability,and ultimately requires an analysis of comprehensive factors to determine the damage according to the dynamic system theory.The fifth part,procedural aspects of the personal rights injunction.The injunction should be limited in duration,in principle not exceeding six months,before the expiry of which the applicant may apply to the court that issued the injunction for an extension.The People’s Court shall issue an injunction against personality rights in the form of a ruling,which shall have no res judicata effect and shall automatically expire upon the expiry of the injunction.The respondent shall be liable for breach of the injunction.The respondent should be given the right to file a review of the personality rights injunction,and the respondent may also apply for the revocation of the injunction based on new facts.the applicant shall bear the corresponding responsibility for the damage caused by the wrongful application for injunction to the respondent,which should be grasped leniently according to its degree of fault,but the applicant can introduce punitive damages if it applies in bad faith in an attempt to obtain improper benefits through the injunction,and can also require the applicant to provide security to reduce the risk of wrongful application.