Domestic violence is a serious social issue that threatens the safety and dignity of victims, while also disrupting family harmony and social stability. The law strongly condemns and penalizes acts of domestic violence. At the civil law level, the Supreme People's Court addressed this issue by passing the Provisions on Several Issues Concerning the Application of Law in Handling Cases of Personal Safety Protection Orders on June 7, 2022. These Provisions, effective August 1, 2022, ensure the thorough implementation of the Anti-Domestic Violence Law and provide comprehensive protection for the legal rights and interests of domestic violence victims in marriage.
1. Definition of domestic violence
(1) What kind of behaviors constitute domestic violence?
Article 2 of China's Law on Combating Domestic Violence defines domestic violence as both physical and mental aggression among family members. This includes actions such as beating, binding, maiming, restricting personal freedom, frequent verbal abuse, and intimidation. Article 3 of the Provisions further clarifies domestic violence by including behaviors like freezing, starvation, frequent insults, slander, threats, stalking, and harassment.
(2) What are the boundaries or restrictions concerning domestic violence?
Violence can occur between spouses, between parents and minor children, between adult children and elderly parents, and between individuals living together outside the immediate family, such as daughters-in-law, sons-in-law, in-laws, and others.
2. What to do when experiencing domestic violence
(1) Seeking relief
(i) Who are the eligible parties to seek relief?
In addition to the victim's right to seek help, their legal representatives and close relatives are also entitled to report the situation and seek assistance. Furthermore, when domestic violence involves minors, schools, medical institutions, residents' committees, and their staff have a mandatory obligation to report the abuse.
(ii) There are three primary methods to seek assistance after encountering Domestic Violence.
(a) Reporting to the police
To report domestic violence, call 110 or visit the nearest police station. For minor incidents, law enforcement may issue a warning or provide education to the aggressor. In more serious cases, the police will enforce public security management penalties according to the law. If the violence is especially severe and constitutes a crime, authorities will pursue criminal charges.
(b) Filing for a personal protection order from the court.
If someone has experienced domestic violence or is in immediate danger, they can apply to the court for a personal safety protection order. The court will issue or reject the application within seventy-two hours, or within twenty-four hours in urgent cases.
(c) Filing complaints with relevant organizations.
Complaints, reports, or requests for assistance can be made to the parties' workplaces, residents' committees, villagers' committees, women's associations, and other organizations. Upon receiving a complaint or request for help related to domestic violence, these units are obligated to provide assistance and address the situation.
(iii) Retain evidence of domestic violence.
(a) Medical records
After experiencing domestic violence, it's crucial to visit a hospital and keep all medical documentation, such as diagnostic reports, medical records, hospitalization and discharge summaries, and medical bills. It's also important for the doctor's diagnostic records to detail the extent of the injuries and, if possible, specify the cause, such as "struck by an external force."
(b) Evidence gathered following the report.
However, medical records alone may not be enough to prove that an injury resulted from domestic violence. To build a stronger case, it is advisable to keep police records, receipts, and notification materials. If possible, take photos of the victim's and abuser's interrogation transcripts from the police. Additionally, retain any warning letters or public security management penalty decisions issued by law enforcement. Additionally, if law enforcement conducts an assessment of the victim's injuries, it is important to retain the injury assessment report.
(c) Additional evidence.
This includes, but is not limited to: ① the abuser's letter of apology or confession; ② records of requests for help and mediation from the village (neighbourhood) committee, women's federation organizations, anti-domestic violence groups, and the employers of both parties; ③ electronic evidence such as surveillance footage, video, and audio recordings; and ④ witness statements.
3. Personal Protection Order
(1) Do I need to file a civil lawsuit first to apply for a personal protection order?
Victims of domestic violence can seek a personal safety protection order directly from the People's Court to promptly and effectively ensure their safety, without requiring the filing of a divorce lawsuit, such as divorce, as a prerequisite.
(2) Who can apply for the Personal Protection Order?
(i) The victim themselves.
(ii) Close relatives, public security authorities, women's associations, residents' committees, villagers' committees, and relief organizations may apply for a protection order on behalf of the victim in cases where the individual is incapacitated, has limited civil capacity, is coerced or intimidated, or is elderly, disabled, or seriously ill, thus unable to apply independently.
(3) In Which court should one apply to for a personal protection order??
File the application with the Basic People's Court in the jurisdiction where either the applicant or the respondent resides, or where the domestic violence took place.
(4) What level of proof is necessary for granting a Personal Protection Order?
If there is a reasonable belief that the applicant is at risk of domestic violence or facing immediate danger, a personal safety protection order can be issued under the law without the need to establish a "high likelihood". This approach reduces the burden of proof on the parties involved.
(5) How long does it take to issue a Personal Protection Order?
Upon receiving an application for a protection order, the People's Court generally issues a ruling within 72 hours. In urgent cases, this ruling is expedited to within 24 hours.
(6) What does a Personal Protection Order include?
The measures may encompass one or more of the following options simultaneously, depending on the applicant's request :
(i) Issuing an order to prevent the respondent from committing domestic violence.
(ii). Ordering the respondent to refrain from harassing, stalking, or contacting the applicant and their close relatives.
(iii) Directing the respondent to maintain a distance from the applicant's residence, school, workplace, or other frequented locations
(iv) Directing the respondent to vacate the applicant's residence.
(v) Additional measures aimed at ensuring the applicant's personal safety.
(7) How long does a Personal Protection Order last?
The People's Court sets the duration of the personal safety protection order based on the applicant's request and the circumstances of domestic violence, typically up to six months. If continued protection is needed beyond this period, the applicant may request an extension of the order's validity.
(8) Do applicants need to cover court costs for a Personal Protection Order application?
The People's Courts accept applications for protection orders without requiring payment of litigation fees.
(9) What are the legal ramifications of breaching a Personal Protection Order?
(i) If the violation of a protection order is not severe and does not yet constitute a criminal offense, the People's Court generally issues a warning. Depending on the seriousness of the case, they may also impose a fine of up to 1,000 yuan or a detention period of up to 15 days.
(ii) If the respondent violates a protection order to a degree that meets the criteria for the "crime of refusing to execute a judgment or ruling" as defined in Article 313 of the Criminal Law, they may face criminal penalties, including imprisonment for up to three years, criminal detention, or a fine. In cases deemed exceptionally serious, the punishment may range from three to seven years of imprisonment, along with a fine.
(10) What happens if the respondent is found to have violated a Personal Protection Order?
If the respondent violates the protection order, the applicant has the option to report the breach to either the People's Court or the public security authorities.
4. Relationship between domestic violence and divorce
(1) Can domestic violence as a legitimate basis for divorce?
Domestic violence serves as a legal justification for establishing that the marriage has irreparably deteriorated and warrants a divorce. As stipulated in Article 1079 of the Civil Code, the court will grant a divorce upon substantiated evidence of domestic violence.
(2) It is not appropriate for the abusive party to directly care for the child.
In cases involving an abusive party, the court often recognizes the potential danger of domestic violence and deems it inappropriate for that party to have primary custody of the child. Therefore, unless the couple agrees otherwise on custody arrangements, the injured party typically receives custody of the child.
(3) Domestic violence constitutes legal misconduct, and if it leads to divorce, the innocent party has the right to seek compensation.
In cases of divorce resulting from domestic violence, the innocent party may pursue damages from the party at fault.
(4) The division of property in divorce is based on the principle of taking care of the party not at fault, and the abusive party may be given a smaller share of the property.
In cases of divorce related to domestic violence, the court may, depending on the specifics of each case, choose to allocate a smaller portion of the property to the abuser as a form of penalty, prioritizing fair treatment for the innocent party.
