人格權侵害禁令的程式實現

Procedural Realization of Injunctions against Infringement of Personality Rights

"人格權侵害禁令是人格權侵害領域中預防性責任形式的快速實現機制,其獨立于先予執行和普通的行為保全,是不必然伴隨訴訟程式、具有非暫時性和非保全性的人格權獨立保護制度。根據此種實體法功能,禁令的程式模式在價值上要權衡程式的便利高效和當事人的程式利益保障。基於非訟程式法理的發展和現行法,雖然禁令案件是真正的訴訟案件,但仍可將其作為非訟程式的審理物件,並以非訟程式作為禁令的基本程式模式。據此,禁令程式應採用職權探知主義,建立被申請人最低限度的程式保障規則,確立非訟程式和訴訟程式之間的合理轉換條件和方式,且禁令程式中的裁定不具有既判力。其他的具體程式規則也應根據非訟程式予以解釋構建。"

"Injunctions against infringement of personality rights are quick realistic mechanisms for preventive form of liability in the field of infringement of personality rights, which is independent of preliminary execution and ordinary behavior preservation, and is an independent system that protects personality rights, which does not necessarily accompany contentious procedures and has the non-interim and non-preservative character. Based on above functions in substantive law, the procedural mode of injunction should weigh the convenience and efficiency of the procedure and the protection of the procedural interests of the parties. According to this substantive function, the development of the jurisprudence of non - contentious procedure and the current law, although injunction cases are real contentious cases, they can still be considered as the object of non-contentious procedure, and the noncontentious procedure can be the basic procedural mode of injunctions against infringement of personality rights. Accordingly, the injunction procedure should adopt the doctrine of investigation by the court, establish the rules of minimum procedural protection for the respondents, and establish reasonable conditions and ways of conversion from the non - contentious procedure to the contentious procedure. Rulings in the injunction procedure does not have res judicata effect. Other specific procedural rules should also be interpreted and constructed according to the non-contentious procedure."