Study On The Procedure Of Personality Rights Infringement Injunction

Article 997 of the Civil Code defines the injunction system of personality rights infringement,which brings forward the remedy for personality rights from the post-facto remedy established by the Tort Liability Law to the pre-emptive prevention,adapts to the needs of the protection of personality rights in the Internet era,and makes up for the omission of the legislation for the protection of personality rights,which is a milestone.However,the Civil Code only preliminarily regulates the applicable elements of the injunction of personal rights infringement.From the perspective of the relationship between substantive law and procedural law,the implementation of the injunction of personal rights infringement stipulated in the Civil Code cannot be effectively achieved without the guarantee of appropriate procedures.The Civil Code has been enacted for more than two years,but how to build a specific procedure for the injunction of personality rights infringement is not yet settled in academic circles and judicial practice,and the relevant judicial interpretations have not yet been issued,and there are few judicial cases in which the parties have applied for,and the judges have applied,the injunction of personality rights infringement.Therefore,it is necessary to strengthen the construct of the research and demonstration of the procedure of the injunction of personality rights infringement,so as to ensure that the system of the injunction of personality rights infringement is implemented as soon as possible.The system of injunction of personality rights is based on the right of claim of personality rights,but in essence,it still belongs to the scope of substantive law.The core difference between an injunction of personal rights infringement and a preservation of conduct lies in the fact that it does not presuppose the filing of a subsequent lawsuit by the applicant,but has binding effect in substantive law once it is issued.In other words,this is a newly created independent injunction system,in order to make the purpose of substantive law fully realized,it is necessary to add an independent injunction procedure for personality rights infringement,rather than the analogous application of the procedural provisions of conduct preservation in the existing civil procedural provisions.When applying for an injunction to protect personal rights,it is important to clearly define the subject of the application,the scope of protection,jurisdiction,and warranty system.Special consideration should be given to situations where the applicant is a person with limited or no civil capacity or when they are unable to apply in person due to extenuating circumstances.Upon verification,relevant authorities or individuals should be allowed to apply for the injunction on their behalf,after verification,the relevant authorities or individuals should be allowed to apply for injunction on their behalf,after verification,the relevant authorities or individuals should be allowed to apply for injunction on their behalf.The scope of application for the injunction of personality rights infringement must be controlled in order to prevent the abuse of the injunction procedure.For example,the posthumous interests of a deceased person should not be included in the scope of protection against infringement of personality rights because this contradicts the indirect protection method adopted by China for posthumous interests.However,the personal information rights closely related to privacy should be subject to the procedure for protecting personality rights in response to the legislative requirements for personality rights in the information age.It is appropriate to adopt a "quasi-litigation procedure" for the procedure of injunction of personality rights infringement to ensure the efficiency of judicial review while guaranteeing the interests of the respondent.It should focus on the function and characteristics of the injunction of personality rights infringement and construct a review procedure that is suitable for the purpose of the injunction procedure.The focus of judicial review is: the violation is being committed or about to be committed;irreparable damage will be inflicted if not halted in time;and the applicant has the evidence to prove it.In the judicial review,the court shall focus on the impact on the social public interest.The main objective of the enforcement procedure is to define the impact of the injunction against violating personality rights.As a temporary remedy for personality rights infringement,the injunction for personality rights infringement does not have retroactive force and shall be reasonably limited in duration.Enforcement procedures should focus on substitution methods if the executor or the obligor refuses to fulfill the injunction.If the respondent obstructs the enforcement of the injunction,judicial coercive measures such as fines and detention can be taken,and criminal liability can be pursued in serious cases.Remedial procedures shall clarify that the respondent may apply to the appellate court for reconsideration.If the applicant wrongly applies for an injunction of personality rights infringement,he/she shall bear the corresponding legal consequences.