The Study On The Application Of Injunction Of The Personality Rights In China

As the absolute right,the right of personality relates to the rights and interests of human life health,human dignity,personal privacy,personal information and so on.In the era of rapid development of network,because of the diversity of personality rights,personality rights are more vulnerable to infringement,and the consequences of damage may not be predicted.In the past judicial practice,most of the violations of personality rights were ex post relief,while the Civil Code of our country for the first time included the prohibition of personality rights,the relief trend changed from ex post relief to pre-prevention.However,the provisions of Article 997 of the Civil Code are very concise,and there are different views on the legal attributes,applicable conditions and examination criteria of the prohibition of personality rights.As a brand-new rule of conduct,this paper based on the views of many civil law scholars,based on judicial practice,divided into the following five parts:The first part is the concept of the prohibition of personality rights in China.This part includes the origin,development,scope and category of the ban,then combs the development course of the ban in China,and explains the prohibition of personality right.By analyzing the nature and characteristics of the prohibition of Anglo-American law system and combining with the unique attributes of personality right,the author thinks that the prohibition of personality right can not be denied to have the nature and defensive characteristics of substantive law,and should belong to the external defense form of personality right claim right.In addition,this paper distinguishes the rules related to the prohibition of personality rights,such as the preservation of behavior in the Civil procedure Law,the prior execution,and the cessation of infringement liability.The second part elaborates the applicable conditions of the prohibition of personality right in China.By analyzing article 997 of the Civil Code,the author discusses that the starting subject of the prohibition of personality right in our country is natural person,legal person and non-legal person organization,and analyzes the constituent elements of the prohibition of personality right in combination with the case.In the application materials of personality right prohibition,the author thinks that in addition to submitting the application form,we also need to submit an affidavit to restrain the people from consciously abiding by the law.The third part focuses on the review criteria of the prohibition of personality rights in China.On the one hand,the relief against the right to personality is urgent,the court’s formal examination will shorten the examination time and improve the efficiency;on the other hand,the prohibition of the right to personality has the serious consequences of restricting the freedom of one party.The court can find out the facts as much as possible and achieve relative fairness.The author analyzes the difference and connection between the two,and thinks that it is not possible to apply any kind of examination mode alone,and should consider all kinds of relevant factors comprehensively,taking into account efficiency and justice.At the same time,drawing on the mature practice of Anglo-American law system,the four examination criteria of "infringement urgency "," irreparable loss ","possibility of winning a lawsuit" and "measure of interest" are introduced.The fourth part elaborates the legal effect of the prohibition of personality right in China.The prohibition of personality right takes effect upon arrival.In the term of validity,the author thinks that the prohibition of personality right should be consistent with the order of personal safety protection,that is,set a fixed term of validity.On the invalidation of the prohibition of personality right,combined with the limited time limit of the prohibition of personality right,whether to initiate a lawsuit,the result of the final judgment,the legal rescission,the release of the intention and other related factors,the classification judgment.In addition,the consideration of whether the prohibition of personality right passes or not to the legal relief of both parties includes reconsideration,compensation and other relief channels.The fifth part is the author’s thinking on preventing the abuse of the ban rule of personality right.First of all,the use of general personality rights to emerging rights,so that the use of personality rights ban rules increased,easy to cause abuse of rights.Secondly,even the relief of specific personality rights will inevitably exist abuse phenomenon.Thirdly,the way to avoid abuse of the prohibition of personality rights requires distinguishing the limits of the rational use of personality rights,strengthening the hearing and requiring the applicant to provide security.