Research On The Application Of The Prohibition System Of Personality Right

The right of personality is an important birthright of every civil subject.With the continuous promotion of the strategy of governing the country according to law,people’s legal awareness has been awakened,the awareness of rights has become more popular,and the indispensability of this right has been felt more and more.In the context of the rapid development of the Internet,the prohibition system of the right of personality set up in Article 997 of the Civil Code of the People’s Republic of China,as a preventive relief measure,has made up for the traditional situation of the protection of the right of personality,which was mainly based on post-relief,complied with the development situation of the times,protected the right in time before the damage occurred,and added a new way to the previous way of safeguarding the right of personality.However,it is undeniable that because this system is at an early stage of development in China,only the substantive law has made norms,and the text is simple and the content is abstract,which is far from being able to cope with the increasingly complex way of infringement,nor can it meet the needs of the court in hearing such cases,and the relevant procedural rules need to be supplemented and improved.Therefore,through the analysis of the existing difficulties,and on this basis,the construction and improvement of the prohibition system of infringement of personality rights has a prominent practical role in enriching the theory of the system,improving legislation and judicial practice.In order to make the personality right injunction system more applicable in China’s judicial practice in the future,and play its huge and unique role in the field of personality right protection,this paper,based on the current written legal provisions and relevant judicial cases of personality right injunction that have made a decision,summarizes and summarizes the various problems existing in China’s personality right injunction system at the legislative and judicial levels,At the same time,it analyzes and draws lessons from the relevant system provisions and application experience of countries with different legal systems outside the region,and deeply analyzes and explores this system,hoping to put forward some suggestions for reference for the improvement of the prohibition system of human rights in China and the construction of the field of human rights protection.The text of this article consists of three parts.The first part is the case analysis and the raising of questions.Through sorting out the existing cases of the prohibition of personality rights,the differences in the current trial of such cases are intuitively reflected,and through the analysis of three typical cases,the major problem in the current application of the prohibition of personality rights are proposed.After putting forward the problems to be solved in this paper,the second part,based on the first part,further details and analyzes the problems existing at all levels in the application of the prohibition system of the right of personality,first of all,the procedural problems,mainly including the violation of procedural legality by applying other procedures,the lack of enforcement of the prohibition,and the unclear consequences and remedies of the violation of the prohibition;Second,there are problems in the review criteria,mainly including the abstract application conditions in substantive law and the inconsistent degree of reference between courts to the review elements in extraterritorial law;The third is the issue of the effectiveness of the injunction of the right of personality,which includes the impact of the lack of independence of the injunction application in the lawsuit on the effectiveness,the fact that the injunction should not be made in the form of a ruling,and the uncertainty of the validity period.The last part of this article is to give corresponding solutions to the problems discussed in the previous article and put forward corresponding suggestions for improvement.First of all,choose the appropriate procedure-expedited adjudication procedure to solve the problem of lack of procedural provisions for the prohibition of personality rights,and elaborate the design of the expedited adjudication procedure in detail;Secondly,in view of the issue of the elements of review,it is necessary to introduce "balance of interests" and "public interests" outside the territory to better review such cases on the premise of clarifying the provisions of the current law and combining the existing judicial practice experience;Finally,it is further confirmed that the ban on personality rights that has been issued has res judicata,and the validity period of the ban on personality rights is flexibly set according to different situations,so that the legal effect of the ban can be clarified.In view of the above problems,this paper draws the following conclusion: the injunction of personality rights should be applied to the litigation procedure.It is neither a temporary measure nor a non-litigation procedure,but an independent system with the characteristics of litigation and non-litigation.The quick judgment procedure is the most suitable procedure for the prohibition system of personality rights,which is very suitable for the value orientation and function of the prohibition of personality rights.We should learn from the two review elements of "balance of interests" and "public interest" outside China to add our consideration of the case of the prohibition of personality rights,recognize the res judicata of the prohibition,and set the corresponding validity period according to the different circumstances of the case.To sum up,as a new topic in the field of civil law and civil procedure law,the prohibition system of the right of personality has also been highly concerned by scholars while the courts try it.There is an increasingly extensive discussion from the attribution of nature to the application of procedure.In general,the procedural implementation of the prohibition of personality rights needs to go hand in hand with substantive law and procedural law.In the future improvement path of the prohibition system of personality rights,it is necessary not only to strengthen the research on the principle and legal logic of the prohibition system of personality rights,but also to formulate corresponding procedural rules for its implementation in the aspect of procedural law.Based on the existing literature research and case analysis,this paper hopes to provide some effective suggestions for the establishment of this system.With the development of society and the changes of the times,the prohibition system of the right of personality will be gradually improved in both substantive law and procedural law.When it can be widely recognized and applied by the practical and theoretical circles,its significance will be self-evident.