停止侵害判決：瞬時禁令？

較多法院將涉及反復或持續不作為義務的停止侵害判決視為瞬時禁令或一次性禁令，迫使被侵害者在遭重複侵害時不得不再訴。《民訴法解釋》第519條隱含對此立場的認同，民法學理上的“正在侵害說”則與之契合。但瞬時禁令說有嚴重的悖謬:終局禁令的拘束範圍甚至窄於訴前禁令，被告可輕易規避其拘束力，甚至可使法院無法作此判決。故在解釋論上就應將此判決視為永久禁令或長期禁令，何況現行法已拓展了停止侵害的含義。對停止侵害的把握應重視程序法的視角，應認識到訴外請求停止侵害與訴請停止侵害有諸多差別。立法上應規定每次違反禁令的後果。法院簽發永久禁令時所肯認的不作為請求權是持續面向未來的，其執行力也應如此，故基準時後的重複侵害行為在法律上實為舊事實，當事人不可據此再訴。

Many courts treat judgments to cease infringement involving repeated or continuous obligations of forbearance as instantaneous or one-off injunctions, which force the infringed party to file a new lawsuit each time when the infringement recurs. Article 519 of the Interpretation of the Civil Procedure Law implicitly reflects approval of this approach, which is consistent with the civil law theory of“ongoing infringement”. However, the concept of an instantaneous injunction is highly paradoxical: the binding scope of a final injunction would be narrower than that of a pre-action injunction, making it easy for the defendant to circumvent its binding force and even preventing the court from issuing such a judgment altogether. Hence, from the perspective of legal interpretation, such judgments should be regarded as permanent or long-term injunctions, especially given that current law has already expanded the scope of the concept of ceasing infringement. The understanding of judgments to ceas infringement should incorporate a procedural law perspective, recognizing that out-of-court requests to cease infringement differ significantly from formal litigation claims for the same. Legislation should explicitly stipulate the legal consequences for each violation of an injunction. When courts issue permanent injunctions, the recognized right to demand forbearance is ex nunc and continuous in nature, and its enforceability should be intepreted accordingly. Therefore, any repeated acts of infringement occurring after the reference time point legally belong to the original facts of the previous claim/lawsuit, and parties should not be permitted to initiate new lawsuits on that basis