Research On The Injunctions Against Infringement Of Personality Rights

Article 997 of Civil Code of the People’s Republic of China establishes injunctions against infringement of personality rights,which originated from injunction institution of common law,and it is the third attempt of injunction institution in China after the intellectual property field and the family field.Article 997 of the Civil Code is not about the content of substantive rights,but about the way of realization of rights.The basis of the right of claim for injunctions against infringement of personality rights is the right of claim for the right of personality.Injunctions against infringement of personal rights are independent in procedure,not attached to the procedure of litigation of personal rights.it has temporary and final effect.They can not only be used as temporary measures of protection of rights,also can be used as a means of final realization of rights.injunctions against infringement of personality rights is quite different from the preservation of conduct no matter in nature or in characteristics.The former is the system of prohibition in substantive law but the latter is the preservation measure in procedural law.injunctions against infringement of personality rights and orders for protection of personal safety have the general and specific relationship.The system of injunctions against the infringement of personal rights in our country conforms to the trend of respecting and protecting personal rights all over the world.while improving the efficiency of legislation and judicature,it also guarantees the peace of individual life and the stability of social personality order.However,the following problems still exist in this system: the possibility of infringement,the urgency of the situation,and the difficulty in grasping the conditions of application for the determination of damages.there is a lack of consideration of the interests of the defendant and the public interest in the application of the injunction against infringement of the right of personality,and it is short on the application procedure.the validity period,the way of invalidation and the consequence of the actor’s behavior violating the prohibition of personality right are too vague.The system of injunctions against the infringement of personal rights in our country can be improved from the following aspects: first,establishing the basic principle of injunctions against the infringement of personal rights;the first step is to emphasize the protection of the material personality rights of natural persons,the second step is to quantify the specific interests involved in the case through the principle of interests measurement,it is necessary to be cautious when applying injunctions against the infringement of the right of personality will do great harm to the interests of the respondent or damage the public interests.Second,refining the conditions of application for the determination of injunctions against infringement of personality rights,including relaxing the restriction of the standard of proof of the possibility of infringement,using the dynamical systems theory to measure temporal requirement of the situation’s urgency,and improving the standard of relevant proof for applicants with unreasonable long delays.It can be thought injury is irreparable in the case that the actor infringes the material personality right of the obligee,damages the public interests,causes the applicant great economic loss but unable to compensate.Third,the court shall,in principle,inform the defendant before issuing the injunction against the infringement of personality rights.The court shall usually hear the case of the injunction against the infringement of personality rights in written form,only when the litigants dispute the facts of the case,the court will hold a hearing.If the actor infringes on the material personality of natural persons or damages the public interest,the applicant shall be relieved of the security liability.Finally,the legal effect of the injunctions on the infringement of personality rights is clarified,and different effective periods are stipulated according to whether or not the injunctions on the infringement of personality rights was issued urgently,it gives the court the power to revoke the injunctions of infringement personal rights in some civil and civil non-litigation cases,and constructs a punishment mechanism that combines civil liability,administrative penalty and criminal liability.