Research On The Application Of The Prohibition Of Personality Rights Infringement

Article 997 of the Civil Code established the prohibition of infringement of personal rights,opening a new chapter in the protection of personality rights.However,due to the lack of specific applicable rules and guidance,the system only accepted more than ten cases of applying for the prohibition of infringement of personal rights,in the past two years.To make the prohibition of personality rights infringement play a greater role in China’s judicial practice,it is necessary to progress and refine the applicable rules of the prohibition.The prohibition of personality rights infringement is expected to play two functions:providing preventive protection and more timely relief for personality rights,placing higher demands on the balance of efficiency value and fairness value.It is more reasonable to position the prohibition procedure of personality rights infringement as a quasi litigation procedure.By interpreting the meaning of Article 997,it is possible to clarify the scope and requirements of the application of the injunction against infringement of personality rights.However,in the judicial practice after the implementation of the Civil Code,although the court prudently applies the injunction against infringement of personality rights,there are problems such as confusion in the application procedure,unclear review standards,and excessive discretionary space.Therefore,the urgent task is to root in the soil of China’s rule of law,absorb rich experience in comparative law,and solve the application problem of the ban on infringement of personality rights.Specifically,first of all,the judicial interpretation should be used to clarify the review criteria and their concepts,including irreparable damage,the balance of interests of the parties and the impact on public interests,and the review requirements for the possibility of winning a lawsuit should be relaxed;Secondly,it is suggested that the "dynamic systems theory" be used to review injunction cases,and the interaction between various elements should be dynamic and systematic to meet the needs of hearing case differences,and provide guidance for the review mode of injunction cases by fully reasoning in the judicial documents;Finally,it should be clarified that the rules of safe haven are not a prerequisite for a ban,and the principle of applying for a ban is to not provide guarantees,with the exception of providing guarantees when necessary.In addition,independent special procedures can be established around the four stages of application,review,execution,and relief to further improve the applicable rules for the prohibition of personality rights infringement.