Research On The Applicable Procedure Of The Prohibition System Of Personality Right

The prohibition of personality right,as a new prohibition system in civil Code,makes up for the shortcomings in the protection of personality right in China and further strengthens the protection of personality right.From the perspective of legislative intention,the injunction of personality right is a kind of substantive law injunction rather than litigation injunction,which is obviously different from the system of act preservation and personal safety protection order.Before the promulgation of the Civil Code,the injunctions in the field of personality right in China mainly applied for acts preservation and personal safety protection orders,and the provisions on acts preservation in the Civil Procedure Law were basically applied in the trial procedures.After the implementation of the Civil Code,the current Civil Procedure Law and its relevant judicial interpretations do not make special provisions on the application procedure of the injunction system of personality right,which results in the application of the act preservation system when the court tries the injunction cases of personality right according to Article 997 of the Civil Code,and the standards of case examination are different.This is not only easy to lead to "different judgment of the same case",but also unfavorable to realize the legislative intention and due value of the prohibition system of personality right.According to the actual situation of our country,the application procedure of personality right prohibition should follow the principle of convenience and efficiency,the principle of interest measurement and the principle of relative independence.The setting of starting conditions should be combined with the provisions of substantive law and procedural law.The judicial organization should apply the independent system,the judge should review the injunction form first and then the substantive review and focus on the latter,the factors of review should be unified;The trial period should be set in7 days,but sometimes can be set at 48hours;If a party is not satisfied with the order made by the court,he may apply to the court at the next higher level for reconsideration.If the application is wrong,it shall be liable for compensation.In addition,the application procedure of personality right injunction and the litigation procedure of personality right can run independently respectively,and the preservation procedure can be applied selectively.For the cases of personality right infringement in the field of marriage and family,the habeas corpus protection order should be applied preferentially.