Research On The Anti-family Violence Law Of China

Family violence is an immemorial and realistic topic.The thesis,a study of the law of anti-family violence in our country,describes the research background and research objectives and presents its different periods,namely the blanking period,the starting period,the rapid development period and the further development period.It then introduces the research achievements of legislative and academic history before and after the promulgation of The Anti-family Violence Law in China.Systematic research is done on the four systems of The Anti-family Violence Law from the perspectives of basic theories,legislative and judicial defects,the analysis and revelation on foreign laws,and the assumptions of consummating legislation and judicatory.The first system is the mandatory reporting system.The legislative problems include the narrow range of the obligation body,the ambiguity of the report way,the insufficient illustration of relevant incentives and the investigation procedures.The main judicial problem is that the judiciary authorities are in lack of understanding of the system.By comparing America,Australia,Japan and our country,the thesis references the beneficial ways of foreign countries and points out that in the aspect of legislation,the legislative body should amplify the scope of the obligation subject of the mandatory reporting system,broaden the report way,establish incentives systemsand clear the investigation procedure;and on judicial aspects,the judiciary authorities should strengthen the awareness of the mandatory reporting system.The second system is the warning system,about which the legislative problems include the lack of elaboration about the applicable cases and implementation procedures on monitory,the lack of legal consequences and so on.The judicial problems include the ineffective investigation and supervision of the specific organizations and institutions,the implementation of disunity and alternativeness of system,as well as the non-ideal results due to the incomplete penalty intensity.Therefore,on the one hand,the legislative body should elaborate monitory applicable situations and clear the monitory implementation procedure and legal consequences.On the other hand,government should take such suggestions as purchasing services from social organizations and paying a return visit regularly,developing detailed and exercisable warning system,making detailed rules for the implementation and operation process,and bringing the monitory into the public security criminal system and employment marriage credit systems.The third system is the sheltering system.The legislative problems include the lack of detailed operational process about applying for a temporary shelter,the auditing problems about people apply for sheltering and the insufficient providing of the shelter from the town government.The judicial problems are the lack of legal supervision regulations about rejecting shelters and the legal subjects whom the law aids protect.Comparing the sheltering systems of Sweden,Canada,America with ours,the thesis references the beneficial ways of foreign countries and points out that in the aspect of legislation,the legislative body should elaborate and regulate the rescue shelter process,set up shelters,and establish the committees against family violence.In the aspect of justice,rules and regulations about social work need to be made;the free legal services of the shelters should be afforded.The fourth system is one of habeas corpus.The legislative problems include the limited powers of the court and the procuratorate,the narrow banned content and the other generalized measures,the lack of the civil liability on the violation of orders of protection and the uncertain regulation for the scope of the eligibility of the applicant.The judicial problems include those of the cognizance of family violence,difficulties of proof due to the victim who lacks forensics consciousness and methods,the problems about penalties and fines under the regime of community of property.By comparing England,Canada and our country,the thesis references the beneficial ways of foreign countries and points out that in the aspect of legislation,the legislative body should enlarge the power of the court and procuratorate,increase the banned contents of the system of habeas corpus,increase civil liability and increase the punishment level,and broaden the range of the “family members” and respondents.In the aspect of justice,the judiciary authorities should take extensive recognition of family violence and adopt preponderant of the evidence standard;victims' the consciousness of evidence should be strengthened,the standard of preponderance of evidences should be taken,and marital property system of separation should be set up.