试论人格权禁令的民事程序对接

On the Harmony of the Civil Proceedings for the Injunction for the Protection of Personality Rights

构建对接程序对人格权禁令实施意义重大。较之诉讼模式与直接申请模式,以非诉模式构建对接程序更符合人格权绝对性的特点和救济及时性的要求。人格权禁令非诉程序不同于行为保全、人身安全保护令,且无须考虑胜诉可能性,不必引入对席审理。法院审查禁令申请需判断侵权的紧迫性,衡量权利人人格利益与行为人行为自由,并可组织听证,要求双方就主张和证据签署真实性保证书。人格权禁令生效后,若行为人认为禁令有误,法律应赋予其申诉的权利。

Constructing the harmonized procedure is of great significance to the implementation of injunction for the protection of personality rights.Compared with litigation mode and direct application mode,non-litigation mode is more in line with the characteristics of the absoluteness of personality right and the timeliness of relief.The non-litigation procedure of injunction for the protection of personality rights is different from behavior preservation and personal safety protection order,and there is no need to consider the possibility of winning the lawsuit,and there is no need to introduce the opposite trial.When examining the application for injunction,the court shall judge the urgency of infringement,weigh the personal interests of the rights and the freedom of conduct of the perpetrator,organize a hearing and require both parties to sign a letter of guarantee for the authenticity of claims and evidence.After the prohibition of personality rights takes effect,if the actor believes that the prohibition is wrong,the law should give him the right to appeal.