The Application Of The Pre-litigation Injunction System In My Country

China’s civil code will be a separate part of the personality rights is a major innovation in the codification of the civil code,reflecting the legislator’s great importance to the protection of personality rights.Article 997 of the Civil Code provides for the pre-litigation injunction system of personality rights is one of the highlights of the personality rights section,whose function is to prevent and stop wrongful acts in a timely manner,avoid the occurrence of damage,and provide timely relief for the rights holders.The establishment of personality rights pre-litigation injunction system for the protection of personality rights has important significance,but the Civil Code only a single provision of the legal provisions of the personality rights pre-litigation injunction system to regulate,not only the existing personality rights pre-litigation system design is too thin,and avoided as the core of the personality rights system of personality rights pre-litigation injunction system of many controversial issues.Such as personality rights pre-litigation injunction system scope of application,applicable elements,review time limit and security and other unspecified issues,can only be left to theory and practice to solve.This article mainly from the scope of application of the personality rights pre-litigation injunction system,the application of the elements and the application of the provisions of the process of three aspects of the application of personality rights pre-litigation injunction system to explore and analyze the body of this article is divided into four parts.The first part,an overview of the personality rights pre-litigation injunction system.Firstly,the concept of pre-litigation injunction of personality rights is defined,and the implementation of the pre-litigation injunction of personality rights is based on the entity,which needs to be paired with the review of time limits,guarantees and other procedural norms in order to effectively achieve;secondly,the characteristics of the pre-litigation injunction system of personality rights are analyzed.It is clarified that the pre-litigation injunction of personality rights is based on the right to claim personality rights and has the absolute nature of personality rights.At the same time,the purpose of the pre-personal rights injunction is to efficiently prevent infringement and irreparable damage,it can be seen that the pre-personal rights injunction should be applied to the premise of urgency,and compared to the litigation process,the pre-personal rights injunction should have the swiftness of non-litigation procedures.Again,the pre-personal rights injunction system and related systems to identify.In this paper,the personality right pre-litigation injunction system and behavior preservation system,personal security protection order to identify,absorb the advantages of the behavior preservation system and personal protection order,the following personality right pre-litigation injunction system has a reference to the application of research.In the second part,we analyze the problems in the application of the pre-litigation injunction system of personality rights in China.The problems of the application of the pre-litigation injunction system of personality rights are discussed at two levels of entity and procedure.In the substantive level,the scope of application and elements of the pre-litigation injunction system of personality rights are carefully analyzed;whether the scope of application of the object includes personality interests.From the elements of application stipulated in Article 997 of the Civil Code,the criteria of "imminent infringement","irreparable damage" and "proof of evidence" are not clear.It is not clear,and does not consider the "possibility of success" and "weighing the parties and public interest";in terms of procedure,by sorting out the "time limit for review" and "whether security should be provided".In terms of procedure,by sorting out the "time limit for review" and "whether security should be provided",we summarize the shortcomings of the pre-litigation injunction of personality rights in China in terms of procedural application.In the third part,we introduce the extraterritorial examination of the application of personality right pre-litigation injunction system.For the second part of China’s personality rights pre-litigation injunction system for the problems faced by the application of the two major legal systems on the application of the injunction system and the relevant provisions of the relief,looking for the solution to the application of China’s personality rights pre-litigation injunction system problems of inspiration,for the latter to improve the interests of the parties,public interest,the possibility of winning the case to provide theoretical support and practical experience.The fourth part,for the application of personality rights pre-litigation injunction system in the substantive and procedural aspects of the problems of the system to improve the thinking.First of all,from the entity level,one is clear that the scope of application of the personality right v.injunction system should be extended to personality interests.Secondly,it is clear that the elements of the application of the pre-personal rights injunction;among them,it is clear that the criteria for determining the infringement and the "degree of urgency";thirdly,it is clear that the standard of "irreparable damage".The infringement of the right of personality,as long as there is the possibility of causing personal injury or mental harm,it can be determined that there is irreparable damage.And that the infringement of personal rights caused by the loss of property,should be through the respondent whether there is a full amount of property damage to compensate the applicant’s property loss as a judgment of whether the damage is irreparable or not;Fourth,the argument for the pre-litigation injunction of personal rights should be taken to prove the standard of categorical;Fifth,the possibility of winning the case,should be combined with the interests of the parties and the public interest of the public measure to ensure that The application of pre-litigation injunction of personality rights is correct.Secondly,from the procedural level,the starting point of the review time limit should be calculated after receiving the application materials from the parties,and the48-hour review time limit should be the principle,and the judge should be given certain discretionary power.For personality rights pre-litigation injunction should provide security,for the infringement of personality rights of property interests,to provide security for the principle,without providing security for the exception;for infringement of the right to life,health,physical rights of a class of personality rights,without providing security for the principle,to provide security for the exception.