The origin, nature and system construction of the injunction of personality right in the Civil Code
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D923

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    Abstract:

    In order to meet the demand for the supply of rules to stop infringement of personality rights in a timely manner, Article 997 of the Civil Code has added the injunction of personality right. However, the Civil Procedure Law, which has yet to be amended, does not provide a supporting procedure for this, and the Civil Code does not make corresponding provisions. So it is necessary to analyze how to construct the system of the injunction of personality right. The prerequisite for the construction of the system is to clarify its nature. But the academic community has not yet formed a consensus on the nature of the injunction of personality right:most hold that it is an interlocutory injunction, a minority of views hold that it is a perpetual injunction. Because of the fact that it is borrowed from foreign systems, the nature of the borrowed object and the corresponding rules are of great significance to the analysis of the nature of China's injunction of personality right and its construction. So this paper starts from the tracing of the system, combining the nature and function of the borrowed object and the local context of China, analyzing the nature of China's injunction of personality right and putting forward suggestions for its improvement. The injunction of personality right in China is derived from the injunction system under the common law, rather than directly from the interdictum or interdictum prohibitoria under the Roman law. The common law injunction system includes both permanent and temporary relief, as well as other orders issued by judges; both the content of property preservation and the content of act preservation, as well as the content of behavioral payment judgment. For the majority view, there are insufficient grounds treating the injunction of personality right as an interlocutory injunction. An injunction system that is not independent of litigation duplicates our established system. A more appropriate solution is to make the injunction of personality right independent of litigation, so that it has a relatively independent institutional function. Based on the balance between efficiency and justice, the court can issue both an interlocutory injunction quickly, and can also issue a perpetual injunction in a timely manner. In the same procedure, the court can first issue an interlocutory injunction to ask the parties to cease their conduct before the end of the procedure, then issue a perpetual injunction at the end of the procedure. The internal differences in the injunction of personality right should also lead to a corresponding distinction within the review procedure of it. In general, the review procedure for injunction of personality right should fall between litigation and non-litigation procedures, with a preference for non-litigation procedures in urgent cases or where an interlocutory injunction is granted, and a preference for litigation procedures in other cases. When examining application for an injunction of personality, the judge should determine whether the party is committing or is about to commit an illegal act that infringes on others' personality rights, and whether failure to stop it in time will cause irreparable damage to rights and interests. Meanwhile, the judge should take the public interest into consideration. An injunction of personality right takes effect upon service, and a party who is not satisfied with the decision may apply to a higher court for review, during which time the injunction remains in force. If the respondent does not comply with the injunction, the court may enforce the injunction in accordance with the rules of behavioral enforcement.

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毋爱斌,范响.《民法典》人格权侵害禁令溯源、性质及其制度构建[J].重庆大学学报社会科学版,2023,29(5):240~252

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  • Received:
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  • Online: October 24,2023
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