Proposal on Formulating Implementation Rules and Judicial Interpretations of Anti-Domestic Violence Law
Source：Chinese Women's Research Network | Release Date：2017-3-6-
The Anti-Domestic Violence Law of the People's Republic of China was passed on December 27, 2015 during the 18th session of the Standing Committee of the 12th National People's Congress and took effect on March 1, 2016.
Over the past year, many regions and departments have formulated specific measures concerning the enforcement of the law, which consists of systems including mandatory reporting, written warnings, personal safety protection orders and temporary residential shelters for victims.
Part One: Problems Found in the Law's Implementation Process
Statistics show that 17 provinces, municipalities and autonomous regions have published more than 110 documents about supporting regulations and policies, which have played an important role in preventing and deposing of domestic violence, as well as protecting the legal rights and interests of women and children.
However, some problems have arisen during the practice of the law, which need to be solved promptly：
Important Provisions Need Further Clarification
Many systems stipulated in the law are of great significance to safeguarding the rights and interests of victims. However, the abstraction of some provisions causes difficulties in practice and requires relevant functional organs to make detailed explanations and supplements as per the actual circumstances.
More Guidance Is Needed in Application Scope of the Law
For instance, disputes have emerged in determining domestic violence: Should factors including the frequency, length of time and intensity of violence be considered? How best to show evidence of and verify spiritual violence? How best to define the degree of abuse (if abuse is light, it applies to the system of written warnings according to the law).
For another instance, when ruling the custody of a child in a divorce case, should abuse history be considered? In July 2016, a court in Beijing ruled that Liu Jie, action director of Chinese TV series Nirvana in Fire, had committed domestic violence and allocated his wife Dai Xiaolei personal safety protection orders. Meanwhile, the court granted custody of their child to the abusing husband, sparking disputes among the public after the case was reported.
Therefore, guidance in these aspects, among others, needs to be strengthened.
Division of Responsibilities Needs Further Clarification
For instance, in Dai's case, although she was granted the protection orders, her husband still published her contact information on the Internet, causing her further harassment.
When the victim told the judge about this, the law enforcer asked her to call the police, who later sent her back to the court again.
This case reflects that there is a problem in the practice of the personal safety protection orders system. According to the system, the orders are implemented by court under the assistance of other departments such as public security organs and residents’ committees. However, it does not specify the division of responsibilities among these law enforcers.
For another instance, the temporary residential shelter system stipulates that public security organs shall notify and assist the civil affairs departments in having qualified victims placed in temporary shelters, aid centers or welfare organizations.
However, it does not specify how they connect their work, as well as the condition and duration of time for the shelters. The division of responsibilities and coordination among relevant law enforcement departments needs to be made clear through detailed rules or judicial interpretations.
Publicity and Training Need to Be Intensified
On the one hand, the anti-domestic violence awareness of law enforcement departments and their staff members shall be raised.
On some occasions, when victims apply for protection orders, some local officials, police officers and judges often advise them to return to the side of their partners for the sake of their family and “social stability.” These law enforcers believe that if they take action, people’s marriages may fall apart; rather than that if they take action, violence will be contained.
Of the cases received by women’s federations, some litigants reported that police did not reach them quickly or did not make records on the scene, and that some grassroots police stations did not even know the written warning system, which they should carry out.
Therefore, relevant departments shall enhance publicity and training to raise their attention to anti-domestic violence work and their awareness of enforcing the law.
On the other hand, the awareness of the public should also be increased.
Big data of the Supreme People’s Court indicates that more than 3.36 million divorce cases were accepted between January 1, 2014 and September 30, 2016. In these cases, 27.8 percent of couples applied for a divorce due to domestic violence.
It has become a major factor that damages social harmony and family stability, so relevant departments shall strengthen their efforts to spread the law to let society know the harm of domestic violence in a better way and raise their awareness of the law.
Part Two: Suggestions
Given that the main responsibility of enforcing the law lies with public security organs, the court, the civil affairs department, judicial organs and other relevant departments, I suggest that these organs draw up methods, opinions, detailed rules and judicial interpretations for the implementation of the law as quickly as possible. Here are the details:
First, I suggest that the Supreme People's Court unveil judicial interpretations.
A survey finds that since the practice of the law, only a small number of victims have received personal safety protection orders.
For instance, by September 1, 2016, only nine such orders had been granted by grassroots courts under the jurisdiction of the Beijing Third Intermediate People's Court. Some basic courts haven't distributed such orders to even a victim.
Therefore, I suggest that the Supreme Court make a thorough analysis of relevant reasons leading to the problem and make further interpretations for the system.
Furthermore, I propose that public security organs draft implementation opinions for full anti-domestic violence intervention by the police and strengthen relevant publicity and training.
1) The opinions shall specify procedures and concrete requirements for the disposal of domestic violence cases, including dispatching police in time, containing violence, making records and obtaining evidence;
2) With regard to the written warning system, the opinions shall clarify its specific procedures, content and format of the warning letter, supervision methods and relevant legal responsibilities;
3) The opinions shall specify how the public security organs assist the anti-domestic violence work of other departments including the courts and civil affairs agencies, such as helping the courts to implement personal safety protection orders and helping civil affair agencies to rescue and accommodate victims.
Third, I propose that civil affairs departments draft and carry out implementation opinions of the law.
1) To guide relief management agencies and welfare organizations in establishing residential shelters to provide temporary residential assistance to victims of domestic violence.
2) To guide residents' committees, villagers' committees, social work service organizations, relief management agencies, welfare departments and these organizations' staff members to better perform their mandatory reporting work;
3) To support social organizations in carrying out services including mental health counseling, family relationship guidance and domestic violence prevention education.
Last but not least, I suggest that judicial departments unveil implementation opinions of the law.
1) To guide legal aid organizations to provide assistance to victims according to the law;
2) To specify how to carry out anti-domestic violence publicity and education and how to correct the abuser's behavior;
3) To guide people's mediation organizations to settle domestic disputes according to the law and prevent and reduce the occurrence of domestic violence cases.