Civil Remedy For Female Victims Of Domestic Violence In Nonmarital Cohabitation

The frequent instances of intimate partner violence against women,from Yuya case to Jiang Jinfu case,from Lam case to Bao Li case,have generated a great deal of public attention in recent years as well as the academic discussion about the lack of legal remedy for domestic violence tort cases.Furthermore,while these intimate relationship violence cases are all classified as domestic violence cases in the media,in anti-domestic violence regulations,the classification is different,the rules of treatment are different as well.The question of whether women who are abused in nonmarital cohabitation like Yuya and Bao Li can seek appropriate and adequate legal remedies within the current legal framework of anti-domestic violence remains an open question.The current legal text does not include cohabiting and ex-spouse relationships within the primary scope of current domestic violence regulation,and there remains a need to discuss whether norms of domestic violence prevention and treatment can be utilized.Since the 1960 s,the dominant ideology in the family field worldwide has gradually shifted from the traditional family concept to the modern,contemporary,individual-centered family concept.The status of wife and children attached to the male head of household was replaced by notions such as independence of personality,gender equality and maximization of children’s interests.At the same time,the decline of the marriage rate,the rise of the divorce rate,the increasing phenomenon of non-marital cohabitation,the increase of the proportion of children born out of wedlock,the increase of the family of same-sex couples,prompted the Western countries to introduce laws,through precedents to adjust and regulate the development of non-marital cohabitation and other unconventional family development.For China,from the reform and opening up in the late 1980 s to the development of the market economy in the 1990 s,the acceleration of the flow of population,the improvement of the general level of education,the shift in ideology,and the penetration of individualism,have all contributed to the pluralistic trend in marriage and family relationships.Marriage rates and birth rates are decreasing,divorce rates are increasing,the number of nontraditional families is increasing day-to-day,and the phenomenon of nonmarital cohabitation is not rare.A 1997 survey by People’s Daily Online found that almost 50 percent of married women between 25 and 39 years of age had lived together prior to marriage.With the concept of marriage freedom and individual rights taking root,divorce,sexual liberation and feminist succession have become the labels of The Times,and the social morality and public opinion have continued to open their perception of non-marital cohabitation.The law must make corresponding adjustments in the face of great change in the realm of marriage and family reality.Ranging from the identity of the personal law field to tort law cases involving cohabitants to the debate over tort claims.As one of the lifestyles of people’s choice,nonmarital cohabitation is not illegal per se.Although it is not currently regulated by marriage and family law,that does not mean it should be left out of the law.Specifically,where one non-marital cohabiting party impinges on the other party’s right to life,body,and health through violence,the law should offer protection and remedy to the victim.In contrast to husband-wife violence,current laws against domestic violence can only be applied to cohabiting couples after they have been construed.Article 37 states that acts of violence committed by persons living together other than family members are to be carried out with reference to the provisions of the Anti-Domestic Violence Law.A non-marital cohabiting partner is "a person living together other than a family member.The Provisions on Several Issues Concerning the Application of Law in Cases of Personal Safety Protection Order,which came into force on August 1,2022,"persons living together other than family members" stipulated in Article 37 generally include daughter-in-law,son-in-law,parents-in-law,and other persons who have relations of fostering and supporting the applicant.Non-marital cohabiting couples may be classified as those in a supporting relationship,but this must be determined by the courts.It is not certain that they will be able to obtain relief from written legal documents alone.In real life,however,there are indeed large numbers of instances of violent acts between cohabitants.Victims of violence in non-marital cohabitation can only seek partial relief by referring to laws and regulations on domestic violence.For victims of violence in nonmarital cohabitation,the concealment of the tort of intimate relationship violence leads directly to the difficulty in obtaining evidence.Because of the long-term nature of violence,evidence will be lost,and the harm caused by violence,especially mental harm,is difficult to ascertain.However,judges always fail to consider these idiosyncrasies in determining general tort liability caused by intimate partner violence.For the regulation and treatment of intimate relationship violence,which seriously infringes on the legal rights and interests of women in marriage and family and attracts attention.It is necessary to make a slight adjustment on the basis of the general principle of tort liability,that is,when judging the liability caused by intimate relationship violence tort,it is necessary to consider whether the liability arising from the tort with special nature can slightly break through the strict requirements of the traditional principle of civil liability and show the legal characteristics of personal law and marriage and family law.Cohabitation violence mainly refers to the non-marital cohabitation of one party through violence or coercion,insult,economic control and other means to infringe on the other party’s physical,sexual,mental and other aspects of personal rights,to achieve the purpose of controlling the other party’s behavior.It is important to consider the gendered control factor in intimate partner violence,including physical abuse,mental abuse,sexual abuse,economic control.Physical abuse primarily refers to the abuser’s behavior of making the victim afraid of being beaten,tied up,restricting personal freedom,and the like.Mental abuse is the mental torture inflicted on the victim by the perpetrator,including verbal abuse and invective.Sexual abuse primarily includes forceful sexual behavior and mutilation of sex organs.Economic control consists mainly of strict control over household income and expenditure in order to control the victims.Civil remedies for intimate partner violence in a variety of jurisdictions are based on the exclusion of infringement and compensation for damage.The former is intended to stop existing violations and prevent possible violations.The latter is compensation for damage that has already occurred and has been remedied.There are two main aspects of China’s civil remedy: the cessation of infringement and the compensation for damages.To materialize at the system level,the two methods are the system of personal safety protection orders in the Anti-Domestic Violence Law and the compensation for damages stipulated in the Civil Code · Tort Liability.The Personal Safety Protection Order expands the scope of personal relief available to victims of cohabiting violence.They break through the hysteresis that public power can provide relief only after violent cases occur and produce severe consequences.It offers more comprehensive protection for victims’ personal safety in domestic violence cases through a prior injunction.In the judicial practice of personal safety protection order,the order can be divided into emergency protection order and general protection order according to the time of issuance.The main contents of protection order are prohibition of aggression order,prohibition of harassment order,prohibition of contact order,and residence removal order.The object scope of the protection order is relatively broad given the severe consequences of personal injury caused by domestic abuse.To protect the personal rights and interests of the victims,the personal safety protection order adopts unique methods of issuance as well as jurisdiction provisions.At the same time,the issuance of protection orders is characterized by low evidentiary standards and relatively simple procedures,given the vulnerable victims(women)applying for protection orders in family relationships.Furthermore,since the implementation of the personal safety protection order system six years ago,many practical shortcomings and problems have come to light.For example,the current general civil case proof rules lead to great difficulties in the collection and fixation of evidence,as well as the narrow scope of the application of the protection order and the weak enforcement of the protection order.Chinese civil law provides compensation for damages as a means of remedy for victims of damage caused by cohabiting violence.The current law allows parties to nonmarital cohabiting relationships who experience violence to seek the legal remedy for compensation for the harm caused by the violence,as well as the existing rules for the dissolution of cohabiting relationships due to cohabiting violence.However,in judicial practice,the current burden of proof distribution is also not conducive to victims’ relief.The sufficient evidence required in the litigation trial forms the gap and separation between the real life field and the legal field,which directly leads to the difficulty in determining the facts of cohabitation violence.Furthermore,in the elasticity space of the calculation of damages for cohabiting violence,judges are not always inclined to take the method of calculation in favor of the victim,especially for mental damages,because of the gravity requirement and the difficulty of proving damages,judges still hold an overly cautious attitude in their discretion.Given the above issues,the final chapter of the article provides the corresponding suggestions for improving current civil remedy for abused women in nonmarital relationships.This paper mainly includes four aspects: protecting the victims of non-marital cohabitation violence from the perspective of family in a broad sense,expanding the types of non-marital cohabitation violence regulation,improving the operation of personal safety protection order system and clarifying the compensation for the victims of violence in non-marital cohabitation.With the change in public conception of marriage and the selection of increasing rates of unmarried cohabitation lifestyle of people,to live in this new relationship,in the traditional gender structure was still fixed,the physical differences between men and women still cannot span,the social culture and the physiological differences between a woman and lead to the weak position still exist in all aspects.Moreover,the absence of relevant provisions on nonmarital cohabitation within the existing marriage statute leaves a large number of nonmarital cohabitants in an awkward position of "ambiguous identity" within the statute.Where women suffer personal injury from cohabitants during non-marital cohabitation,legal recourse is still lacking and inadequate.Given the increasing trend of cohabiting violence,given the substantial similarity between the cohabiting relationship and the marital relationship,the common international practice is to include cohabiting violence in domestic violence prevention and protection mechanisms for women’s rights and interests.Modern anti-domestic violence legislation,which includes the protection of human rights,gender equality,personality independence,and the protection of women,has the potential to transplant and localize some elements of the mature and reasonable system of anti-domestic violence into the law of the domestic realm.One direction that needs to be considered is the moderate expansion of domestic violence law in China.Victims of nonmarital cohabiting violence should be clearly included within the scope of domestic violence protection,in order to achieve more comprehensive protection of victims of intimate partner violence.