Scholars use 400 cases to analyze domestic violence: only 20% of the allegations have been confirmed, and the Northwest has the most cases
Recently, former female reporter Ma Jinyu issued a document accusing her husband of domestic violence for a long time, which continues to arouse concern.
After the article was exposed, it caused heated discussion among the public.
The website of the Central Political and Legal Committee stated that domestic violence is not a "housework" and that the whole society should "zero tolerance."
With the emergence of domestic violence, my country’s laws have increased penalties for domestic violence.
On March 1, 2016, China's first anti-domestic violence law "The People's Republic of China Anti-Domestic Violence Law" came into effect.
In this law, the scope of domestic violence is clarified for the first time in legal form. "Battering, binding, mutilation, restriction of personal freedom, frequent abuse, intimidation, and other physical and mental violations between family members" are all domestic violence .
The Paper (www.thepaper.cn) consulted CNKI and found that in the article "Analysis of the Application Effect of my country's Anti-Domestic Violence Law", Jiang Yue, a professor at Xiamen University Law School, used 400 civil judgments of the people’s courts involving domestic violence in 2016-2018. The sample, in the form of data analysis, reflects the basic situation of cases involving domestic violence and the application effect of cases involving domestic violence under the Anti-Domestic Violence Law.
The study found that the gender relationship between the perpetrator and the victim is very prominent. Women accuse men of violence accounted for more than 90%; among the types of domestic violence, physical violence accounts for more than 70%, and the rest are mental violence, economic control, and sexual violence.
However, the court confirmed that the proportion of domestic violence was only 20%, and the difficulty of obtaining evidence for domestic violence has not changed significantly.
The article suggests that in order to improve the application of the Anti-Domestic Violence Law, it is recommended to unify the identification standards of domestic violence, and at the same time enhance the police's ability to intervene in domestic violence, and more effectively play the role of the personal safety protection order system.
Northwest China has the largest number of domestic violence cases
In this paper, the author Jiang Yue collected statistics on 400 Magistrates' Courts involving domestic violence cases from 2016 to 2018.
Among them, there were 103 cases in the northwest region, accounting for 25.75%, the largest number and the largest proportion of all regions.
The number of cases in South China is 27, accounting for 6.75%, the least.
Jiang Yue stated in the paper that although this set of figures cannot accurately represent the incidence of domestic violence and its differences between different regions, it still reflects the incidence of domestic violence to a certain extent.
In addition to the case distribution area, the paper also statistics the age distribution and gender ratio of the parties in domestic violence cases.
According to the statistical results of sample cases, the main age group suspected of domestic violence is the 31-40 year old group, followed by the 41-50 year old group.
In addition, the gender relationship between the perpetrator and the victim is very prominent. The woman accused the man of violence accounted for more than 90%, and the man accused the woman of domestic violence, accounting for only 3%.
The paper also made relevant statistics on the types of domestic violence, duration and injury results.
Based on the types of violations of the rights of the victims, the types of domestic violence mainly include physical violence, mental violence, sexual violence, and economic control.
Among the types of domestic violence the parties complained of, physical violence was the most, with 355 cases, accounting for 75.21%; sexual violence was the least, with 3 cases, accounting for only 0.64%.
According to the judgments of sample cases, only 113 judgments clearly recorded the duration of domestic violence, accounting for 28.25%; while there were 287 judgments with unknown or undocumented records, accounting for 71.75%.
Among the 113 judgments with a clearly recorded duration, domestic violence lasted 1-5 years the most, with 47 cases in total, accounting for 11.75%.
There are 13 cases over 15 years, accounting for 3.25%.
In addition, 24 cases lasted less than one year, accounting for 6%; 19 cases in 5-10 years, accounting for 4.75%; 10 cases in 10-15 years, accounting for 2.5%.
Judging from the consequences of the parties’ complaints of domestic violence injuries, whether it is physical or mental injuries, minor injuries account for the largest proportion, and serious mental injuries also account for a certain proportion.
Domestic violence is difficult to prove, and difficult to obtain evidence is still the norm
In her paper, Jiang Yue believes that it is a fact recognized by the legal and judicial circles that it is difficult for parties who have suffered serious threats of domestic violence or domestic violence to provide evidence.
After the implementation of the Anti-Domestic Violence Law, the difficulty of domestic violence has improved, but no major changes have taken place.
In 400 sample cases, statistical evidence based on the gender of the plaintiff showed that the rate of evidence in cases involving domestic violence has increased significantly. In addition to self-reporting, more than half of the parties have provided other evidence to prove that domestic violence occurred.
But at the same time, the proportion of cases where only the parties themselves stated as evidence and no other evidence was presented accounted for 44.5%, which is about half.
At the same time, in cases involving domestic violence, there are still problems such as the lack of types of evidence and difficulty in producing evidence.
In this regard, the article stated that because the location of domestic violence is hidden, there is usually no video data, no witnesses, and the victim is often unable to collect evidence that is beneficial to him. The difficulty for the prosecutor to produce evidence far exceeds that of other civil cases.
According to the statistical results of sample cases in the article, the sources of evidence in cases involving domestic violence are few and concentrated.
Among them, records and certifications from medical institutions accounted for the largest proportion of evidence, accounting for about one-fifth of the total.
In addition, the article also lists the evidence directly collected by the victim; the evidence from the Public Security Bureau (police station); the record of the perpetrator of domestic violence, including the letter of guarantee, letter of commitment, letter of apology, confession letter, screenshots of Weibo, etc. A source of evidence.
The article shows that, in addition to the above-mentioned types of evidence, there is very little evidence from other sources, and the types of evidence that the injured party can produce are extremely limited.
It is difficult to determine domestic violence evidence, and only 20% of the allegations are confirmed by the court
Among the 400 sample cases analyzed in the article, the court determined that domestic violence constituted only 91 cases, accounting for 22.75% of the total number of samples; 255 cases did not constitute domestic violence, accounting for 63.75% of the total number of samples; another 54 cases Whether it constitutes domestic violence is unknown, accounting for 13.5%.
It can be seen that in domestic violence cases, it is not only difficult for the parties to produce and obtain evidence, but it is also difficult for the court to determine and adopt evidence.
For example, it is difficult to prove the existence of domestic violence if the victim only cite a few injury photos, medical records, medical invoices, alarm receipts, murder weapons, and even the authenticity, legality, and relevance of the evidence.
Among the collected samples, some judges believed that the diagnosis certificate, outpatient medical record, and injury photos could only reflect the plaintiff’s injury, but could not prove that the plaintiff’s injury was caused by the defendant’s actions, so they were not accepted.
In addition, the verdict cannot be finalized on the basis of isolated evidence alone.
The statistical results show that none of the cases in which only one party makes a statement by himself and no other evidence has been confirmed by the court to have domestic violence; if there are only medical records and photos, the court generally does not confirm that domestic violence has occurred.
Among the 400 sample cases in this article, only 9 of the parties (all women) applied for personal safety protection orders, accounting for 2.25%.
Among them, 6 were approved by the court, accounting for 66.67% of the total number of applications; 3 applications were not approved, accounting for 33.33%.
Compared with the number of cases alleging domestic violence, the number of applications for personal safety protection orders is very small, and the court's approval rate (the ratio of the number of applications approved to the number of applications) is low.
The article believes that there are two main reasons for the low approval rate: First, the people’s court may have too strict standards when approving applications for personal safety protection orders; second, insufficient evidence.
The comparison between the number of domestic violence cases and the number of applications for personal safety protection orders shows that most parties do not understand personal safety protection orders or fail to apply for personal safety protection orders.
At the same time, when the court ruled to approve the personal safety protection order, there were obvious shortcomings in clearly determining the specific protection measures.
It is difficult for victims of domestic violence to apply for divorce damages, and the amount of compensation is small
Among the 400 samples, 76 cases applied for divorce damage compensation, accounting for 19%.
Among the 76 applications, 29 were approved by the court, accounting for 38.16%; 47 applications were not approved, accounting for 61.84%.
24 of the claims for damages due to domestic violence committed by one spouse were approved, accounting for 31.58% of all compensation applications and 6% of all sample judgments.
Among the 29 divorce cases that were actually compensated, the aggrieved party received compensation for damages: 9 cases of 1,000-20,000 yuan, accounting for 31.0%; 6 cases of 5001-10,000 yuan, accounting for 20.69%; 3001-5,000 yuan There are 6 cases, accounting for 20.69%; 4 cases with 1001-3000 yuan, accounting for 13.793%; 3 cases with more than 20,000 yuan, accounting for 10.34%; and 1 case with compensation within 1,000 yuan, accounting for 3.45%.
Whether the fact of domestic violence is determined may affect the judgment of the custody of minor children to a certain extent. People's courts tend to sentence minor children to the party who has not committed domestic violence, but this effect is not significant.
Among the 91 sample cases that confirmed the facts of domestic violence, only 31 cases involved the support of minor children.
Among them, there are 10 cases where mothers have direct custody rights, 15 cases where fathers have direct custody rights, and 6 cases are supported by both parents in turn.
The paper believes that the court's understanding of the relationship between the perpetrator of domestic violence and the confirming party of custody needs to be improved.
The article pointed out that when the people’s court confirms the existence of domestic violence, it is not careful when determining the custody of the child that it still pays too much attention to the financial strength of both parents, and too much consideration of the parents’ desire to live with their children, instead of paying attention to domestic violence. of.
The article suggests improving the police's ability to intervene in domestic violence
In response to the applicable effects of the domestic violence lawsuits discovered in the paper, the author proposes to legislate and judicial: the identification standards of domestic violence should be unified, the police's ability to intervene in domestic violence should be improved, and the personal safety protection order system should be fully utilized And other suggestions.
The unified standard for determining domestic violence means that public security organs, courts or other social organizations should follow the definition of domestic violence in the Anti-Domestic Violence Law.
The law expands the scope of domestic violence, and includes frequent abuse and intimidation as behaviors of domestic violence, because the damage of frequent abuse and intimidation is not as intuitive and visible as physical violence, but it causes mental damage to the victim. The harm is objective.
As long as the parties can provide evidence to prove that a spouse has committed tangible bodily harm or intangible verbal harm, and meets the "recurring" standard, it shall be regarded as domestic violence.
The article believes that, on the other hand, the police are the first force to intervene in domestic violence, and the level of police handling of domestic violence must be effectively improved.
First, police officers should be guided to establish a correct concept of anti-domestic violence and overcome the misconception that domestic violence is attributed to family members’ daily contradictions or trivial disputes.
Secondly, it is necessary to regulate the police's intervention in domestic violence such as receiving and dispatching police.
To this end, measures such as setting up special anti-domestic violence courses, anti-domestic violence vocational training, anti-domestic violence practical training, and issuing manuals on domestic violence interventions in police academies should be taken to raise police officers’ awareness of domestic violence and make them correct. To improve the effectiveness of domestic violence interventions.
At the same time, the personal safety protection order is one of the most direct and effective measures in the practice of anti-domestic violence, so it is necessary to give full play to the role of the personal safety protection order system.
Since it is a temporary emergency relief measure, when the people’s court reviews the application for a personal safety protection order, it should be lenient in determining whether domestic violence has occurred or whether it is facing actual danger, and should not be compared with the determination in the procedural law. Whether it constitutes domestic violence is treated equally in substantive law, so as to protect victims or potential victims more timely and effectively.
In addition to the above suggestions, the article also pointed out that the court should fairly distribute the burden of proof of domestic violence, and all judgments confirming the existence of domestic violence should cite the anti-domestic violence law; improve the application of compensation for divorce damage caused by domestic violence, and determine the direct custody of minor children Full consideration should be given to the facts of domestic violence; the legal professionals shall be trained on the anti-domestic violence law.
The Paper, senior reporter Wang Xuanhui and intern Li Nan