The personal safety protection order system has multiple difficulties such as difficulty in producing evidence and difficulty in enforcement. Experts appeal
Departments collaborate to improve the effectiveness of the "protection order"
● According to legal regulations and academic research, domestic violence can be divided into various forms such as physical violence, mental violence, sexual violence, economic control, and witnessing violence.
● After the implementation of the Anti-Domestic Violence Law, the number of cases related to “domestic violence” began to decline year by year. The personal safety protection order system stipulated in the special chapter of the Anti-Domestic Violence Law has played an important role in curbing domestic violence, but there is still evidence in reality. Difficulties and implementation difficulties
● Judging from the actual situation, it is also necessary to strengthen the cooperation between the Department of Public Security, Procuratorate and Law, the Women’s Federation and other departments to increase the protection of victims of domestic violence and improve the effectiveness of the personal safety protection order
□ Trainee reporter Zhang Shoukun
□ reporter Wang Yang
November 25, 2020 is the 21st "International Day for the Elimination of Violence against Women".
On the same day, the Supreme People’s Court, the All-China Women’s Federation, and the Chinese Association of Women Judges jointly issued the ten typical cases of personal safety protection orders for the first time, sending a clear signal to the society of multi-party joint governance and resolutely saying “no” to domestic violence.
After the Anti-Domestic Violence Law came into effect on March 1, 2016, the number of cases related to “domestic violence” began to decline year by year.
The personal safety protection order system stipulated in the Special Chapter of the Anti-Domestic Violence Law has played an important role in curbing domestic violence. However, in reality, there are still multiple difficulties such as difficulty in producing evidence and difficulty in enforcement. As a result, many victims of domestic violence still do not know and do not want to Do not dare to use this system.
Experts interviewed by a reporter from the "Rules of Law Daily" said that personal safety protection orders can play a dual role in education and deterrence, but anti-domestic violence work is a complex systemic project. From a realistic perspective, it is necessary to strengthen multiple departments such as the Public Security Bureau and the Women’s Federation. Collaboration between the two parties will increase the protection of victims of domestic violence and enhance the effectiveness of personal safety protection orders.
Prevent and stop domestic violence
Continuous improvement of the legal system
In September last year, 30-year-old Sichuan girl Lahm was killed by her ex-husband Tang Lu and died of arson during the live broadcast.
Prior to this, she had endured domestic violence and lived a painful life for more than ten years. The most serious incident occurred in May last year when her ex-husband smashed Lahm's right side with a bench, causing her right arm to fracture.
Even after divorce, Lahm was still threatened and violent by his ex-husband. He called the police several times and failed to escape the tragedy. This incident once triggered heated discussions about domestic violence in all sectors of society.
In recent years, as more and more domestic violence incidents have been exposed, people have increasingly realized that domestic violence is not a "housework", but an illegal and criminal act that violates the rights of the victim, which is a social problem.
At this stage, domestic violence is widespread in different forms.
A reporter from the Rule of Law Daily used “domestic violence” as the key word to search on the China Judgment Document Network and found that as of December 28, 2020, there were 1,463 criminal cases and 283,373 civil cases. The specific manifestations were physical violence, sexual violence, Various forms of mental violence and economic control.
In order to prevent and stop domestic violence, the Anti-Domestic Violence Law came into effect in March 2016, and a special chapter stipulates the personal safety protection order system.
Li Mei, deputy chief of the Juvenile and Family Tribunal of Donghai County People’s Court in Lianyungang City, Jiangsu Province, told the reporter of the Rule of Law Daily that according to the Anti-Domestic Violence Law, a person who suffers from domestic violence or faces actual danger of domestic violence can apply to the court Personal safety protection order.
If the party is a person with no capacity for civil conduct, a person with limited capacity for civil conduct, or is unable to apply for a personal safety protection order due to coercion, intimidation, etc., his close relatives, public security organs, women's federations, neighborhood committees, village committees, and rescue management agencies can act on their behalf Application.
According to Hao Jia, an associate professor at the School of Civil and Commercial Law of Northwest University of Political Science and Law, personal safety protection orders can prevent violent acts from occurring or recurring, and are playing an increasingly important role in my country's anti-domestic violence work.
"It is particularly important to emphasize the role of personal safety protection orders in preventing violent acts. This is the biggest feature of the personal safety protection orders in terms of the system. The Anti-Domestic Violence Law stipulates that the parties facing the actual danger of domestic violence can apply to the people's courts. An application for a personal safety protection order is issued. In other words, there is no need for violence to actually occur, as long as there is a risk of violence, the victim can apply." Hao Jia said that it is worth noting that men may also become victims.
A reporter from the Rule of Law Daily observed that among the typical cases published this time, there were cases where children and men suffered domestic violence.
In addition, according to the provisions of the Anti-Domestic Violence Law, violence that occurs between persons in guardianship, foster care, cohabitation, divorce, etc., has also been included in the scope of domestic violence and is subject to legal restrictions.
Li Mei said: "The personal safety protection order is not a'blank sheet', but a legally effective judgment document made by the people's court in accordance with the law. The relevant personnel must strictly abide by it. According to the Anti-Domestic Violence Law, those who violate the personal safety protection order May be fined, detained, and criminally liable. It can be said that the personal safety protection order sets up a safety barrier between the perpetrator and the victim, forming a physical separation, and at the same time psychologically causing the perpetrator Shocked."
Issuance rate of protection orders is not high
Difficult to produce evidence
The All-China Women’s Federation, based on the letterheads, complaint telephone numbers and online surveys received, concluded that in 2020, about 20% of households will have domestic violence that infringes on personal rights; the White Paper on Judicial Protection of the Rights of Women and Children in Shanghai (2019) shows In 2019 alone, the women's federations at all levels in Shanghai received and accepted 6,996 conflicts and disputes, and the women's federation system accepted and handled 465 domestic violence complaints.
According to data from the Supreme Law, from March 2016 to December 2019, a total of 5,749 personal safety protection orders were issued by courts across the country.
Compared with the huge population of victims of domestic violence, the number of personal safety protection orders is not much.
The proportion of personal safety protection orders issued is also low.
Statistics from the Supreme Law show that as of the end of December 2018, courts across the country have reviewed 5,860 applications for personal safety protection orders and issued 3,718 personal safety protection orders, with the issuance rate of only 63%.
It is understood that in reality, the attitude of most victims of domestic violence towards personal safety protection orders is often "unwilling to use, dare not to use".
In judicial practice, the system still has difficulties such as difficulty in producing evidence and execution.
In this regard, Li Mei believes that the application for the personal safety protection order, coupled with the assistance of the public security, village committee (neighborhood committee), women’s federation and other departments, means that public power is involved in the family. "It is an impact, which means that there is no possibility of reconciliation between the two sides. It is a test of family unity and affection.
Therefore, even if people know about this system, they are reluctant to apply.
According to Yu Yan, vice chairman of the Women’s Federation in Heshan District, Yiyang City, Hunan Province, many women have come to the Women’s Federation crying for help. They will also tell each other about the personal safety protection order, but in the past two years, only two of them have actually applied for it. Family violence again during the divorce proceedings.
If the divorce has not yet been filed, many women will not apply.
Li Mei said that the reason why people are reluctant to use the personal safety protection order system should be because of their doubts about its effectiveness and the pressure of public opinion.
From a legislative point of view, the personal safety protection order is a "talisman" issued to the disadvantaged party. In family relations, the disadvantaged party's position is ultimately due to its fundamental reasons. It is formed in various aspects such as economy, character, emotion, and family status. It will be fundamentally changed because of a protective order.
If you are not strong enough, you may face the influence of public opinion outside your family and get into a more passive situation.
Hao Jia introduced that according to legal regulations and academic research, domestic violence can be divided into physical violence, mental violence, sexual violence, economic control, and witnessed violence.
"The determination of domestic violence has the problem of difficult proof, but the issuance of personal safety protection order is much simpler than the determination of domestic violence. It should be a formal review of the evidence. The parties only need to have preliminary evidence to prove that the problem is not difficult. Should appear." Hao Jia said.
“Domestic violence generally occurs within the family. If you cannot obtain evidence in time, it is difficult to prove what happened afterwards. Even if there is an injury, if the other party denies it, it is difficult to determine how the injury occurred.” Li Mei said According to the law, the time limit for the completion of the personal safety protection order is very short, and a ruling should be made within 72 hours, leaving very little time for the court to investigate and collect evidence.
This requires applicants to have as much evidence as possible when applying, otherwise it will be difficult to get support.
Li Shangwei, a judge of Shanghai Pudong New Area People's Court, believes that the difficulty of implementing the personal safety protection order is related to the basic level court as the enforcement agency determined by the Anti-Domestic Violence Law.
Basic-level courts have many perennial cases and limited enforcement capabilities. The implementation of personal safety protection orders includes supervisory functions, and basic courts often have no time to take care of them; for violations of personal safety protection orders, the people's courts can only give admonitions or impose a fine of less than 1,000 yuan Or detention for less than 15 days, it is difficult to deter the respondent; the relevant provisions in the anti-domestic violence law, such as prohibition of domestic violence, prohibition of stalking, contact, etc., are too strong in principle and lack of guidance in judicial practice Sexuality and pertinence.
Build departmental collaboration mechanism
Effectively improve protection effectiveness
On December 1st last year, the "Measures of Shaanxi Province for the Implementation of the Anti-Domestic Violence Law of the People's Republic of China" came into effect, which stipulates that the applicant's personal safety protection order shall not be based on the result of actual damage.
On the basis of the upper-level law, this provision once again clarified that the personal safety protection order is not only to protect the victim from re-domestic violence, but also to prevent potential serious domestic violence.
In practice, local courts have been exploring in recent years how to improve the protective effect of personal safety protection orders.
For example, the People’s Court of Xicheng District, Beijing established a green channel for filing personal safety protection order cases, and appropriately reduced the aggrieved party’s burden of proof of domestic violence in terms of evidence; the Huangpu District People’s Court of Guangzhou City, Guangdong Province opened an online application channel, and WeChat logged in Huangpu You can apply for the family trial official account by uploading personal information, alarm receipts and other related materials; the People’s Court of Nangong City, Hebei Province has increased the publicity of the personal safety protection order through WeChat official account, Weibo, and police entering the community. Interpretation to eliminate people's misunderstandings.
Li Mei suggested that the key to solving the difficulty of enforcing the evidence of personal safety protection orders is to clarify the identification standards of domestic violence. How to determine the identification standards of domestic violence is a difficult problem. The Anti-Domestic Violence Law clarifies the methods and types of domestic violence. , But the standards and levels need to be further refined; the second is to increase the penalties for violating the personal safety protection order. The personal safety protection order is made in the form of a civil ruling, which is a type of civil legal document. There is very little that can be done to violate the personal safety protection order, and it cannot form a strong deterrent to some respondents who repeatedly commit domestic violence.
"In legislation, the people's courts should be appropriately empowered with enforcement powers, including increased enforcement methods, increased fines, and extended detention. You can also consider penalizing violations of personal safety protection orders." Li Mei said.
Hao Jia believes: "Multi-sectoral cooperation is an effective mechanism for preventing and stopping domestic violence that has been proven in practice in many countries. At present, many places in my country are trying to construct or have practiced multi-sectoral cooperation to deal with domestic violence, and some rely on the Supreme Law. The family trial joint conference system in the reform of family trials, some use the comprehensive social security management platform, and some are individually designed. Localities should form an effective long-term working mechanism based on local characteristics and long-term experience in anti-domestic violence work to improve personal The safety protection order is effective."
Since October 2017, the Guangdong Higher People's Court has cooperated with the Guangdong Provincial Women's Federation to implement a family investigator system to solve problems such as difficulty in producing evidence in domestic violence cases, difficulty in investigation and collection of evidence, and difficulty in identifying domestic violence.
The family investigator is entrusted by the court to investigate the situation and severity of domestic violence and issue a family investigation report to assist the court in grasping the case and issuing protection orders in a timely manner.
At present, 79 courts in Guangdong province have employed a total of 865 family investigators.
According to Gao Shawei, Minister of Rights and Interests of the All-China Women’s Federation, local women’s federations request the public security organs in their jurisdictions to issue warnings to the perpetrators. For those who have suffered domestic violence many times or have reported to the police but have not been properly resolved, the Women’s Federation will also assist Conduct injury identification and contact the civil affairs department to resolve the asylum issue.
At the same time, the Women’s Federation can apply to the people’s court for a personal safety protection order for victims who are incapacitated, restricted or have difficulty applying for a personal safety protection order.
Li Mei believes that when conducting multi-department collaboration, the powers and responsibilities should be clear, and the responsibilities of each department should be subdivided to avoid mutual prevarication.
It is recommended that the public security organs strengthen investigations when receiving the police for domestic violence, interrogate both parties, visit the relevant witnesses and the village committee (neighborhood committee) to determine whether it is true, and cannot simply record the content of the reporter's statement to avoid the determination of domestic violence facts difficult.
Village committees (neighborhood committees), women’s federations and other departments have implemented a trial registration system for domestic violence incidents handled within their jurisdictions so that parties can obtain evidence during judicial proceedings.
The court may determine the frequency and extent of events.