On Legislative And Practice Of Domestic Violence

This PhD. Dissertation includes the introduction, the main body which has six chaptersand the conclusion.The introduction explains the background and value of subject selection, the researchsituation, the empirical materials and the train of thought. Domestic violence tramples onindividual dignity, shakes marriage and family, interferes with social stability. Therefore,struggle against domestic violence has become the international consensus, and legislate thelaw of anti-domestic violence now becomes the international trend. Judicial intervention andsocial assistance are two elementary measures to oppose domestic violence. The researchfocal points on domestic violence in China’s jurisprudential circle are from the connotation,type, cause, cause of domestic violence to the incidence rate, coverage rate, relief rate ofdomestic violence and through the judicial procedure or social assistance to ensure litigants’legitimate rights and interests and through legislate the anti-domestic violence law to ensurethe stabilization of marriage, family and social. The existed researches on domestic violencehave some problems, such as more blind spots, less comparative studies, weak empiricalresearch and so on. Some hot points are now in research gradually, such as judicial procedureof domestic violence case, habeas corpus system, evidentiary rule of domestic violence,administrative responsibility distribution, and notification mechanism, anti-domestic violencerelated fare adjustment and so on. The value of the anti-domestic violence research lies inrealize the synthetic study in the field of anti-domestic violence, responding timely to theefforts in anti-domestic violence, ensuring the application of domestic violence case fairly andaccurately, promoting the trial procedure of domestic violence case and play a valuablefarthest to reform the anti-domestic violence in China. The empirical materials which arecollected by the author contains the existed reference material, interviews with some damagedparties, some women’s league staff and some judges, five hundred eighty three domesticviolence case syllabi, fifteen mediation agreements, eighty complaints, sixty questionnaires.All these empirical materials are related with domestic violence. Based on the establishedachievements, this dissertation is pondering integrally the domestic violence case in Chinathrough exercising the basic method of comparative analysis and empirical survey, focusing on the problem gaps, developing the comparative study and emphasizing the empiricalresearch.In chapter one, the dissertation defines the connotation of “domestic violence”,summarizes the types and analyses the typical characteristics of domestic violence. Theconfused focus on “domestic violence” between theory field and practice field is “violencesubject” and “violence behavior”. There are three typical characteristics of domestic violence:covert behavior, multiple means, and serious consequence. Besides, it has some othercharacteristics from else angle of views: sociology of population, ethics of family, and cultureof area. There are four incentives of domestic violence: the hidden inferiority and abhor ofbully, battered women syndrome, intergenerational inheritance of domestic violence, unequalsexuality relation reproduction.In chapter two, the dissertation analyzes the domestic and international of domesticviolence, investigates all the international covenants and foreign countries which have somedistinguishing feature on domestic violence. The international covenants focus on thedomestic violence aimed at the woman, advocate guarantee human rights for the women andhold that the sates have a responsibility for preventing and preventing every types of domesticviolence. The reasons of anti-domestic violence rely in it tramples on individual human rightand destroy justice. Anti-domestic violence, we should raise individual riot mentality,encourage to develop social unofficial sustain system, strengthen actual effect of socialofficial sustain system, and finally establish social anti-domestic violence related fareadjustment.In chapter three, the dissertation introduces the development of international legislation,present the anti-domestic violence legislation of England, Hokang and Taiwan, summarizesrespective area’s legislative distinguishing features. Then, the dissertation introduces ourcountry’s anti-domestic violence legislations which include the national and regional law orrule, rethinks profoundly the deficiencies of our country’s anti-domestic violence legislations:obscure legislative idea; dispersive legislation; flimsy legislative contents; misadventurelegislative reformation.In chapter four, the dissertation introduces briefly the die justiz schaltet ein of someforeign countries, such as America, England, France, Norway, and Spain and so on. In thesame time, the dissertation bases on the investigate and survey, rethinks profoundly the trial practice of domestic violence case recent years in our country, then sums up our country needface some difficult position: the potency dimension of anti-domestic violence about thepoliceman need to be raised; judicial authority have some misunderstanding on domesticviolence; the application of existing law is too narrow; social unequal sexuality is stillproducing uninterruptedly.In chapter five, the dissertation introduces briefly the social assistance of some foreigncountries, such as America, England, France, and Denmark and so on. In the same time, thedissertation bases on the investigate and survey, rethinks profoundly the social assistancepractice of domestic violence case recent years in our country, then sums up our country needface some difficult position: social assistance organization have some misunderstanding ondomestic violence; should give more publicity to the legal system; some litigants haveincomprehension with mediation of disputes; lack of funds to anti-domestic violence;damaged party’s life is not be guaranteed contentedly; the social assistance mechanism’sfunction is limited; the return visit system of social assistance mechanism has some faultiness.In chapter six, the dissertation is thinking entirety the legal regulation of domesticviolence in China, and has put forward three fields perfection:Foremost, conceive “anti-domestic violence law”. Firstly, choose the specializedlegislation to oppose domestic violence. The necessity is to guarantee the human right ofcitizen; the existed anti-domestic violence law has some insufficient; our country shouldcomply with the international trend on the legislation of anti-domestic violence. Theprobability lies in: the existed legislation and judicial practice support the indigenousexperience; the raised cognition about domestic violence of citizen establishes socialfoundation to law-making; the foreign countries’ anti-domestic violence law providesinternational experience for our country; the series of international covenant which ourcountry has signed present oppose domestic violence should be the state’s responsibility; theexisted anti-domestic violent proposed draft of specialist and scholars furnish a salutarylesson. Secondly, adhere to gender mainstreaming idea. The fundamental train of thought asfollows: a lot of regional anti-domestic violence rules have been making, now there is ananti-domestic violent proposed draft of specialist and scholars, so it needs the nationallegislation to response. Revising the protection of women’s rights and interests and marriagelaw is the foremost step; establish anti-domestic violence special organization and establish the social domestic violence related intervene system. Thirdly, the legislation should be thename is “anti-domestic violence law”. The reason is “anti” means dead against, it emphasizedoppose completely domestic violence. Fourthly, legislation content should be multiplex. Weought to break through the traditional mode, in order to the judge can abide by laws in everydomestic violence case. Fifthly, make an organic whole substantive and procedural law. Thereason is it can regulate the idiosyncratic target (domestic violence) comparative of well.In the next place, thinking entirety the die justiz schaltet ein of domestic violence, andhas put forward seven fields perfection: firstly, build anti-domestic violence police. The policeshould on the case once he has accepted the report a case of sufferer and restrain domesticviolence immediately. Secondly, domestic violence should be independent demand. Thereasons are as follows: domestic violence has been legislated since2001, so it has a steadylegislative authority; there are more and more cases about domestic violence in the court; itcan supply the scientific trial mode for judicial trial practice. Thirdly, personal protectionorder system should be reformed. The reasons are as follows: it ought to response onceendeavor; it can promote the reasonable and equitable of burden of proof of domestic violencecase; it can make a well preparation on theory and practice of making the anti-domesticviolence law. Fourthly, establish the special criminal procedure of domestic violence case.We can set up a deliberate chapter on special criminal procedure of domestic violence case, itcontains are as follows: detention de bene esse of criminal suspect about domestic violence,the auxiliary condition of guaranteed pending trial and residential surveillance,non-prosecution and impunity, the service of relevant legal documents, the keeping matters inthe time of probation and parole, the supervise duty of public security organs andanti-domestic violence organ. Fifthly, limit order of meeting with minor children. We shouldcount the children’s best interests as outweighs all other considerations, focus the children’ssafe and order the bully must comply with some attentions. If the bully breaks the rule, theyare confiscated margins by the court. Sixthly, the new evidence rules of domestic violencecase. The domestic violence case can be applied the special evidence rule and established theevidence evaluation standard; it can apply to standard with high probability; judicial appraisalmanagement’s expert conclusion is the highest level conclusion through consummate therelevant legislation; enhance the evidence consciousness suffer about domestic violence inorder to collect the evidence available. Seventhly, put up reasonably the civil liability and criminal liability of bully. The author suggests that there are two three aspects to adjust reformmethods that are through qualified person rationality guidance, joint forces harmony andconcern the details to implement.In series, putting forward some the reformed social assistance measures to opposedomestic violence and help the damaged party. There are seven measures are as follows:Firstly, establish the prevention and cure committee of domestic violence and build theprevention and cure fund of domestic violence. Secondly, establish the anti-domestic violencecenter where can supply the twenty four hours service, psychological counseling, financialassistance, legal advice, sanctuary and so on. Thirdly, set up the bully’s assistance plan whichhas the features of cure and guidance, we can lay down definitely the organs, contents,standard, and responsibility in the future anti-domestic violence law. Fourthly, establish thenotification mechanism of the suspected related domestic violence. The party’s organization,education organization, medical treatment organization, petition organization, women’sleague and some other social organization have the duty to inform the suspected relateddomestic violence since it has been discovered, and ask the public security organs for thecertainly need. Fifthly, establish the system of returning visit of the damaged party relateddomestic violence. The every prevention and cure committee of domestic violence has theduty to observe the damaged party related domestic violence in a certain period, and plan howto do the next. Sixthly, regulate the responsibility of respective anti-domestic violence organ.Seventhly, make an effort to form a social domestic violence related fare adjustment. Thesystem should rely on the joint effort of legislation, judicature, enforce the law and socialassistance, and the primary contents can conclude how to firmly believe the domestic violenceand how to make the measures to oppose domestic violence. The system is made up of socialofficial and unofficial support system.In the conclusion, reviewing and summarizing of the whole dissertation, and prospectingoptimistically the consummation of the legislation, judicator, law enforcement and socialassistance of anti-domestic violence in China.