On The Application Of The Prohibition Of Infringement Of Personality Right In Network Infringement

With the rapid development of the Internet,network infringement has become one of the current hot issues.Network infringement has the characteristics of fast spreading speed and wide range of influence,and the damage to personal rights and interests such as the right of privacy and reputation is irreversible and irreparable.Therefore,in order to strengthen the protection of personality rights in the network environment,Article 997 of the Civil Code adds the prohibition of infringement of personality rights,that is,when the right of personality is or will be infringed,the obligee can apply to the court for an injunction to order the infringer to stop the infringement,so as to prevent the damage or stop the loss in time.But because of its short prescribed time,implementation details have not yet been issued,leading to some problems in judicial practice:First,the applicable standards for each requirement are not clear,for example,for example,there are different standards of proof of infringement and the urgency standard is ambiguity,etc;Second,the order of application between it and notification rules is not clear;Third,the design of relevant systems is not perfect,such as,whether to apply the guarantee system.This paper will use case study method,comparative study method and literature analysis method to specify the applicable requirements of the injunction of infringement of personality right for reference.In terms of specific requirements:First,the proof standard for the existence of a violation can be determined based on whether the violation has occurred and the specific type of the result of the damage;Secondly,the criteria for determining the urgency of the infringement can be determined according to the degree of irreparable damage,the time for the right holder to seek relief and the probability of the applicant and the respondent to win the lawsuit.Third,the criterion for irreparable loss should first define the state of the damage,if the damage is in a state of finalization,the injunction of infringement of personal rights is no longer in effect,in addition to considering whether it can be compensated in the form of damages,it should also consider whether the respondent has the ability to perform.On the procedural side,the application order of the injunction of infringement of personality right and the notification rule is clarified from the aspects of legal provisions and the inadequacy of notification rules.In the aspect of system consummation,clarify the applicable rules of guarantee system in network infringement of personal right cases;Meanwhile,for safeguard procedural justice in non-litigation proceedings,when examining a case,the judge should fully protect the respondent’s rights to be informed and be heard.