The Research On Chinese Anti-Domestic Violence Legislation

The family is the cell of society. The family's peace brings the social harmony. In real life, domestic violence - especially violence against women has become a kind of social problems penetrating into different geographic, ethnic, national and social systems. It's not only a family problem, but also a problem, which seriously endangers the physical and mental health of the victims, has destruction of the family tranquil harmony and threatens the social harmony and stability. The United Nations paid attention to this problem and started the studying on domestic violence in the 1970s. On the circumstance of "Women's 10 Years Anniversary in United Nations", the United Nations issued "the Common Agreement of Banishing the Discrimination to Women" in 1979. It regards the violence to women as a kind of discrimination and followed by the series of international conventions, declarations, documents and resolutions, emphasizing all violence against women which occurred in public or private sphere were all regarded as human rights issues. At the same time, the public required the national authorities are more and more involved in interfering the domestic violence. All the countries in the world strengthened the legist ration against domestic violence. To date 89 countries and regions have constituted specific domestic violence legislation and set up matured law and regulations. The scholars from many countries also have been canying out wide range of research and exchange on the theory of domestic violence and intervention measures. After the Fourth World Women Conference in 1995, our country started to pay more attention to the domestic violence in the general aspects from all levels of society. The voices and activities against domestic violence are growing. The amendments of Marriage Law issued on April 28, 2001 clearly states "Forbidding Domestic Violence" in the general chapter, which was the first time of prescribing on domestic violence in national law. But facing the current critical domestic violence situation in our country, there are still some obvious gaps and deficiencies, seriously restricting anti-domestic violence work in progress. As a result, being a county with status laws and serious domestic violence problems, a unified legislation against Domestic Violence has outstanding importance to curb domestic violence and protect human rights.Total four aspects of the anti-domestic violence legislation are discussed in the full text. The first chapter is an overview on domestic violence. From the point view of psychology, history and sociology, the author discusses Chinese and foreign scholars' theoretical study on the causes of domestic violence, including an analysis of the characteristics in a variety of theoretical and the deficiency. The author thinks the causes of domestic violence should be taken to multi-layer analysis, in order to reveal and explain deeply the phenomenon of domestic violence. Then it can provide theoretical basis to legislation reform and judicial intervention. At the same time, the author compares the domestic violence against the general violence and concludes the occurring of domestic violence having their-own special characteristics because of the environment and the main aspect's particularity, which contains the description of the difficulty against domestic violence. In the second part, the author introduces current situation of domestic violence and inadequacy in current Chinese legislation. First of all, on the basis of the real cases, the author presents the current domestic violence, especial to women are maintained at high level and th complaints are hard to reduced. The domestic violence always occurs within couple for the man and women with close relationships. The domestic violence exists in various aspect which brings serious result. There are not much outstanding interfering on domestic violence from the social organizations by itself. The victims are not effectively protected in physical safety. Secondly it introduces the reform of legislation against domestic violence in mainland. According to standard of the concept "domestic violence" emerging in the legislation papers, it is divided into three phases about Chinese anti-domestic violence legislation: phase of the unconscious, infancy stage and development stage. Thirdly, reviews of the defects and shortcomings about anti-domestic violence legislation, including legal definition of domestic violence concept is too narrow, legal protection strength of victims of is too limited, the lack of the Rules of Procedure and Evidence response to domestic violence cases to deal with, the duties of public security organization is not meeting anti-domestic violence work, and so on. For the shortage above, the author believes that a unified anti-domestic violence law is urgently required in reality. The third chapter is devoted to introduce the status of international legislation on domestic violence. Firstly, in accordance with the temporal clues, it presents the development of relevant legal documents anti-domestic violence in the international community; Secondly, it makes a brief presentation about some more mature legal system in other countries (regions), including the protection order system, "The consequences of violence and expert testimony" and compulsory to arrest system, which have a good reference to us. The fourth part is the end result of this article. the author will put forward own legislative proposals, firstly, it suggests that legal definition of the concept of domestic violence should be based on Chinese national conditions and cultural traditions of the people, such as the definition of family members should be had a limited expansion of the explanation and be broadened to cover the people who has the special relationship with or who was the couple or partner in the past. On the definition of type of violence, it should not only be limited to physical violence, but also includes the spirit of violence and sexual violence into the area of domestic violence; Secondly, on the legal relief, this article proposes to introduce civil protection orders of common law countries ,which can provide timely and effective relief to victims of domestic violence; it suggests that the burden of proof applies to transfer in certain civil proceedings cases of domestic violence, so that litigants can share the litigation costs reasonably and increase the proportion and extension to be protect the victims; It suggests that the "violence and its consequences for the expert testimony" be introduced to judicial practice, which provides self-defense defense to victims in exceptional circumstances ,such as "violent uprising" domestic violence.