Study Of Procedures For Prohibition Of Infringement Of Personal Rights

Article 997 of the Civil Code,which came into force on 1 January 2021,provides for the first time for an injunction against infringement of personality rights,and its regime is intended to provide more effective and speedy protection of personality rights.As a new type of protection system,this system fills the legislative gap in China in the protection of personality rights.it strengthens the protection of personality rights in China and at the same time highlights the human-centred legislative thinking.As a completely new system,the application of a personal rights infringement injunction poses considerable difficulties for judicial practice,and it is difficult to find protection measures identical to the personal rights infringement injunction system worldwide.The prohibition of infringement of personality rights can only be better protected by a procedure that is truly appropriate to its nature and function,and the purpose of the legislation can only be truly achieved,and this cannot be achieved overnight.In view of this,this paper sets out to examine the current state of research on the injunction system for infringement of personality rights,followed by an analysis of typical cases to find out the causes of the problem,and finally,to put forward countermeasures and suggestions for the improvement of the problem.In the first part,questions are posed through case studies.Find relevant cases on personality rights infringement injunctions and identify representative examples of typical cases.After analyzing the merits of the cases and the results of the decisions,the differences between each case in terms of the applicable procedures and the standard of review are identified,and the problems of the current system of injunction against infringement of personality rights are thus identified.In the second part,the reasons for the formation of the problem are analysed.It is analysed separately from both theoretical and practical aspects.On the theoretical side,through reading and analyzing the relevant articles,the late and insufficient research by legal scholars on the system of injunction against infringement of personality rights,as well as the lack of consensus on the theory are the theoretical reasons for the problem.In practice,there are no relevant judicial interpretations and procedural provisions for the application of injunctions against infringement of personality rights,and there are ambiguities and lags in the legislation,as well as unclear judicial reasoning,different standards of review of injunctions and different application of procedures,both of which are the practical reasons for the problems.In the third part,suggesting improvements.Firstly,a distinction is made between the system of injunctions against infringement of personality rights and similar systems and the clarification of their procedural nature,followed by the construction of a procedure for the application of injunctions against infringement of personality rights.Including:the procedure for injunction against infringement of personality has the characteristics of both litigation and non-litigation procedures,and should be refined on the basis of combining the advantages of both;in addition to the person who has been victimised,the next of kin of the deceased and the guardian of the person with no civil capacity can also apply;the scope of protection of an injunction against infringement of personality rights should include all personality interests at the outset of the application;the court’s standard of review should focus on the weighing of the interests of the parties and the public interest;the review procedure may be summary,but for applications where there is significant doubt,a panel may be constituted to deliberate.To clarify the nature and unique status of the procedure for injunction against infringement of personality rights,to construct a suitable procedure for the application of injunction against infringement of personality rights,and to solve the problems faced in judicial practice by regulating the application of the procedure.