Analysis On Civil Protective Order In China

Domestic violence has always been hidden behind the legal governance to be seen asprivate affairs, with the establishment of the rule of law society and the improvement ofhuman rights consciousness, people gradually realized that domestic violence is not onlyseriously endanger the lives and health of the victims and other family members, but alsoseriously threaten the stability of family and the social harmony. The domestic violencecontrol mostly experienced heavier punishment to prevent such a process, clear thegovernance problems of family violence is not the main purpose to punish the offenders,but for more timely and effective protection of domestic violence victims. In order tochange and achieve" Punishment--relief in advance" the management idea, USAdedicated to solving the problems of domestic violence to make Civil Protective Order(CPO). CPO system in the America suitable initial received good legal effect, the victimsof domestic violence have picked up the CPO to defend their rights. Then most of thecountries in the world have in reference to USA basis, according to the national conditionsof China formulated the CPO. Years of practice has proved, CPO in the domestic violenceprevention system play a decisive role, it is the most effective legal weapon to protect thedomestic violence victims.In2008, China also formulates the CPO on the basis of the Taiwan, and experimentin many trial courts. The introduction of CPO is broke the Chinese traditional ideologyand curing barriers and the impact of feudal ideas such as "law can not interfere theprivate affairs" to a certain extent. From our current judicial practice, Chinese CPO hasachieved some effects in preventing and combating family violence, protecting a part ofvictim’s personal security and other legitimate rights and interests to a certain extent.However, because it’s too late to introduce the CPO into our country, CPO is at an earlystage in our country, there are many problems need to be perfected. Misunderstanding ofthe nature of CPO and misunderstanding the relationship between external CPO systemand our Act Preservation system, especially making the CPO hook on to the divorceproceedings, making our CPO out of the international derailment, is contrary to therequirements of due process. Compared to common law countries and Taiwan, HongKong, the use number of CPO is very few, the real value of CPO system in our countryhas not been fully demonstrated.The paper expound the relationship between Personal Safety Protection, ActPreservation and CPO on the basis of researching the law and process of American, British and Taiwan. The paper points out that our Personal Safety Protection is theprototype of CPO, we still need to make greater efforts to change the Personal SafetyProtection into CPO. Analysis and discusses our Act Preservation is not the basis of CPO,we should be establish a separate CPO, and develop the strict operate programme. Thereare three chapters in this paper, the first chapter introduce the CPO originated fromdomestic violence, and then introduce the concept and characteristics of CPO, thencompare the similarities and differences between Personal Safety Protection, ActPreservation and CPO, clarify the functions of CPO is incomparable.The second chapter analysis the problems of CPO existing in our judicial practice, forexample, lack of legislation basis, mistake the nature of CPO, imperfect proceduresprovisions shall be applicable, difficult to execute. The imperfect procedures provisionsshall be applicable including: applicant is inconsistent, the standard is not unified, andthere isn’t hearing procedure of evidence.The third chapter combined the problems in our judicial practice of CPO, and putforward the ideas and Suggestions on the basis of reference to the CPO of British,American and Taiwan. The paper pointed out that the first step that to perfect our country’sCPO is define it’s status and nature in the substantive law and procedural law, then aimingat the existing problems, we should perfect the specific content of CPO system. In termsof the entity content, should be expand the scope of CPO of protection, to perfect the typeand relief content, in terms of program specification, it should enlarge the scope ofapplicant, adopting diversified jurisdiction system, setting up the victim’s evidence system,perfecting the CPO execution of the program and hearing procedure, etc. Finally, to givefull play to the CPO to protect the personal safety of domestic violence victims, preventand stop domestic violence, maintaining family stability and social order, in addition toimprove the system of CPO itself, should also perfect the corresponding measures, such asto reference the system of Judicial Separation, build a shelter and establish a mandatorycorrectional institutions an so on. Only to establish the social combination support systemof combating and preventing, can eradicate the breeding of domestic violence from thesource of soil.