Research On The Procedure Of China’s Prohibition System Of Personal Rights Injunction

On May 28,2020,the Civil Code was officially promulgated.One of the highlights is that the right of personality is independently codification and the prohibition system of the right of personality is creatively stipulated in Article 997: "If a civil subject has evidence to prove that the actor is committing or is about to commit an illegal act that infringes upon his personal rights,and if he fails to stop it in time,his lawful rights and interests will suffer irreparable damage,he shall have the right to apply to the people’s court for measures to order the actor to stop the relevant acts." The establishment of this system solves the problem of injunctive application in the field of personality right and provides an independent remedy for the infringement of personality right.However,at present,although this system is stipulated in the Civil Code,the ban is rarely applied to the personal right infringement cases in practical cases,and most cases are dealt with in accordance with other systems.The main reason is that there is only one provision in the Civil Code,which is relatively general,and there is no procedure to connect with it in the civil procedure Law.Although there are many controversies in the theoretical circle,there is no definite application procedure for this system.The nature of this system,how to establish the adaptation procedure and how to define the relevant conditions are still controversial in the theoretical circle.On the basis of sorting out the different views of scholars,this paper tries to put forward its own views on several controversial issues at present,and put forward its own views and suggestions on the future program construction.The first chapter of this paper firstly introduces the prohibition system of personality right,starting from the concept of the prohibition system of personality right,briefly introduces its characteristics,legislative background and functional value.Among them,there are more controversial issues,such as whether the injunction system of personality right belongs to litigation procedure or non-litigation procedure,or both;On the basis of the substantive law or procedural law,the author presents his own views on the injunction system of personality right.In order to highlight the characteristics of this system,the author compares the existing similar systems such as behavior preservation and personal safety protection order with it.The second chapter mainly analyzes the judicial practice after the promulgation of the ban of personality right,respectively analyzes the application of the ban before and after the implementation of the civil Code,and compares the difficulties existing in the application of the ban system of personality right in practice.The third chapter from a comparative law point of view,makes a comparison between the personality right injunction system and that of foreign common law system and civil law system,and tease out the difference between the two law system injunction system.It provides experience and reference for the application procedure of ban in the future.The fourth chapter,starting from the provisions of Article 997 of the Civil Code,analyzes the application conditions of the injunction of personality right from the aspects of the application requirements,establishment requirements,and other factors to be considered in the application.The fifth chapter,on the basis of the previous chapters,clarifies the nature,application conditions of the personality right injunction system,draws lessons from related similar systems and overseas systems,and puts forward suggestions on the procedure construction and improvement of the personality right injunction system in the future according to the current judicial practice of the system.