On The Connection Between The Prohibition System Of Personality Rights And The Procedure Of China’s Civil Procedure Law

The Civil Code of the People’s Republic of China(hereinafter referred to as the"Civil Code")will be formally implemented on January 1,2021,in which the Personal Rights Division and the provisions of Article 997 on the prohibition of personal rights have received widespread attention from the academic community due to its new legislative form of a separate section and the new way of protecting personal rights it embodies.Thus,the Personal Rights Law responds to the concerns of society at the legislative level and meets the urgent need of the people for a personal rights protection system,and also shows the respect and protection of the State for personal rights.As a new substantive law system,the provisions of Article 997 on the injunction of personality rights are relatively brief,which corresponds to the field of civil litigation,and there are still many issues concerning the examination criteria,constitutive elements,and relevant procedural rules of the injunction in the process of application that needs to be resolved.Given this,this paper will be based on the theoretical consensus reached by the academic community.Chapter 1 introductory part mainly describes the current legislative background and research status of personality rights injunction,and summarizes the main views.Chapter 2 examines the system of personality rights infringement prohibition.we analyze and compare the common law "temporary injunction" and the system of false disposition contained in the personal rights injunction from the perspective of legislative traceability as the starting point.In addition,the legislative attempts of similar systems such as intellectual property injunction and habeas corpus have been made in China,which has not only laid a certain legal foundation for the establishment of personality rights injunction but also revealed the long-existing gaps in the system of civil procedure law in China and the possible practice that may arise in the future,The first chapter of the study is to analyze the need for a procedural approach to the injunction of personality rights.Chapter 3 analyzes the unique legal attributes of personality rights injunction,and clarifies the basic legal attributes of personality rights injunction,which will be helpful for the subsequent construction of procedural rules.The most controversial system of conduct preservation and injunction is compared in the current academic circles,and the differences in nature and independence requirements between the two are clarified,so that the procedures of the conduct preservation system cannot be directly applied as some scholars say,thus further illustrating the necessity of the independent existence of injunction procedures.According to its basic nature to determine the value protection tendency of the system should be set as timely and advanced,to guide the choice of the subsequent procedural law path,but also as an auxiliary tool in the subsequent judicial practice to help judicial workers to use the system flexibly.Chapter 4 begins the preliminary construction of procedural rules for personality rights injunction.It focuses on the rules and applicable elements of the preliminary construction of the specific procedures for the injunction of personality rights under the contemporary state of the rule of law practice in China.In accordance with the principle of harmonization among the provisions of the Civil Code,the scope of protection is expanded(including personality rights and interests).At the same time,the provisions of Article 997 on the subject of the application,the form of application,and the necessary rules beyond the provisions are supplemented and designed in accordance with the non-litigation procedures,clarifying that the judicial practice should include both formal and substantive examination,the ultimate standard of proof to be met by the evidence submitted by the applicant,as well as listing the factors to be considered by the judge in the examination process.Chapter 5 provides a detailed study of the parts of the procedural rules that require special provisions.This paper considers that the effect of a personality right injunction should be more appropriately limited to a temporary nature,and lists some cases in which the effect of the injunction is automatically null and void.In addition,considering that the process of "pursuing efficiency while taking into account fairness"is bound to produce mistakes,such as the occurrence of malicious applications for injunctions or abuse of rights,several suggestions are made on how to effectively protect the interests of both parties and the setting of subsequent remedies in Chinese law.