The Research On The Procedure Of Injunctive Relief Of Personal Right

As a basic right of civil subject,personality right embodies the basic legal idea of protecting human dignity and protecting personality freedom.In Article 997 of the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),the prohibition system of personality rights is stipulated for the first time,which has become a highlight in the compilation of personality rights.The system provides a more efficient remedy for personality right protection and makes up the weakness of our personality right protection system.However,at present,the rules matching the injunction procedure of personality right are not clear,and the substantive requirements involved in the implementation of the injunction procedure of personality right,such as application requirements and procedural requirements,such as judgment and execution rules,do not have complete and clear requirements.It is necessary to establish the injunction procedure rules of personality right as soon as possible to improve the efficiency of judicial practice of personality right.In addition to the introduction and conclusion,this thesis mainly includes four parts.The first part discusses the basic theory of the injunction of personality right.Based on the analysis of the historical development of the injunction of personality right and the definition of its legal nature,it compares the similarities and differences between the injunction of personality right and the behavior preservation system,the personal security protection order and the prior execution system,so as to show that the injunction of personality right is a procedural rule with both preventive and relief functions.Based on this logic,the research on other links of the injunction procedure of personality right is carried out.The second part analyzes the deficiencies in the legislation of the injunction of the right of personality,focuses on the problems in the legislation of the injunction of the right of personality,such as the uncertainty of the application procedure,the unclear review procedure,the insufficient guarantee of execution,the unclear way of relief and so on,and introduces the judicial practice of the injunction system.The third part puts forward some suggestions on the path selection of the injunction procedure of personality right,analyzes the characteristics of the litigation procedure and the non-litigation procedure which the injunction procedure conforms to respectively,but the injunction procedure does not completely conform to any of these two procedures,and then concludes that the injunction procedure of personality right should have a unique procedure to support its operation.This system is a kind of special procedure which relies on the omission of the substantive examination of the main case,absorbs some features of non-litigation procedure,and analyzes the legal principles that should be observed during the operation of this procedure.The fourth part gives detailed opinions on the establishment of the special procedure,including clarifying the applicant’s qualifications and requiring the applicant to provide an injunction guarantee,clarifying that the examination organization should be examined by the judge alone,conducting formal examination of the parties’ applications in the examination process,and briefly proposing the specific starting point of the examination time limit and the determined time limit.At the end of the examination,injunction should be made in the form of adjudication,which clarifies the effect of injunction adjudication and the view that the adjudication has no res judicata.At the same time,it puts forward some suggestions to expand the subject of injunction execution and discusses the connection between injunction procedure and litigation procedure.