Research On The Personal Safety Protection Order System

The introduction of "Anti-domestic Violence Law" and legislation of personal safety protection order system is the milestone breakthrough in the field of domestic violence prevention of our country.It changes the ideas and methods of domestic violence prevention in China,realizes the mode conversion from the negative post sanctions to positive prior intervention and increases the public power's intervention intensity to domestic violence.Therefore,it has far-reaching influence and positive significance in the aspects of curbing domestic violence and protecting the rights and interests of the victims.This paper analyses and interpretates the basic theory and legislative provisions of personal safety protection order system in the perspective of procedural law,increases the live evaluation and empirical analysis of the protection order system based on the concept of the theory and practice,and puts forward the improvement suggestions for the protection order system on the basis of all research results of the whole paper.In addition to the introduction and conclusion,the article can be divided into four parts,corresponding to the four chapters.The first chapter is focused on the theoretical analysis of the personal safety protection order system.On the basis of absorbing the domestic and foreign existing theories,this chapter is devoted to the construction of the relevant theory of personal safety protection order.First of all,the concept of personal safety protection order is defined and compared with the similar concepts such as "personal safety protection ruling" and "personal protection order".At the same time,the chapter introduces the common classifications in detail based on different criteria,such as application procedures,the protection objects,whether to ban the perpetrators to contact victims etc.Secondly,the chapter discusses the features of protection order in the aspects of procedures,legal interests protection,independence,effectiveness,and puts forward personal views on the nature of personal safety protection order,which is based on the analysis and criticism of the theory of "behavioral injunction","claim of personal right","coercive measures","act preservation","special procedure".Next,the chapter analyses the design concepts and the application principles of personal safety protection order system.The design concepts include the ideas of human rights protection,protection to the weak people,intervention in advance,gender equality.The application principles include the principle of timeliness,principle of proportionality,the principle of protecting the victims slantedly,the principle of non public trial,the principle of confidentiality of the victims' information.Finally,the chapter reveals that the system of personal safety protection order has four functions,which include preventing domestic violence,protecting the legal rights and interests,maintaining the harmony and stability of the family,and protecting the freedom of marriage.The second chapter is about the legislative investigation and analysis of the extraterritorial personal safety protection order system.This chapter investigates and compares protection order system's legislation of foreign countries or regions,such as Britain,the United States,Japan,New Zealand,Taiwan of China,and explores the similarities and differences of extraterritorial legislation.Furthermore,the chapter analyses the extraterritorial legislation's specific enlightenment for developing and perfecting personal safety protection order system of mainland China in the aspects of the scope of family members,the scope of the applicant,the type of protection order,content,validity,execution,legal responsibility.The third chapter is about the legislation and practice of personal safety protection order system in our country.This chapter mainly discusses the social,system and practical background of legislation of personal safety protection order system.On the basis of normative analysis of the current legislative provisions,the chapter points out that the current legislation still has some shortcomings which include the absence of emergency or temporary relief for domestic violence,the content of protection order being too conservative and lack of economic protection,the requirements for the court to approve the protection order being misty,the current legislation evading the provisions of the rules of evidence,protection order's execution procedure being empty.In addition,to explore the implementation status of personal safety protection order system in our country,the author selects some typical cases of protection order for case study and conducts the statistical analysis of the protection order system by using Chinese referee network as the main research platform.On this basis,it is found that China's protection order system faces some dilemmas in the process of implementing the system,which include the low application rate of the protection order,the difficulties in identification of domestic violence because of the difficulties in proof,the relief measures of the protection order being difficult to meet the actual needs,the limitations of traditional judicial organization,the weak enforcement of protection order in practice.The fourth chapter is focused on the suggestions of perfecting the personal safety protection order system of our country.Based on the previous related research on the basic theory,extraterritorial legislation,legislation and practice in china of protection order,and through the oriented problems which are legislative defects and implementation difficulties put forword in the third part of the article,the author puts forward the corresponding countermeasures and suggestions in the four aspects of the entity contents,the procedure specifications,the evidence rules and the supporting systems.In the entity contents,the scope of the protection order should be expanded much further.Temporary and emergency personal safety protection order should be set up,and the relief measures should be enriched.In the procedure specifications,the specific requirements for the court to approve the protection order need to be refined,and the execution of personal safety protection order should be strengthened.Besides,the sanctions against violations of the protection order shoud be optimized.In the evidence rules,protection order system can be adjusted and optimized in the four aspects of the evidence collection system,the scope of admissibility of evidence used for identifying domestic violence,the burden of proof and the standard of proof.In the supporting systems,it can be taken into consideration to set up a special anti domestic violence court and to establish the domestic violence information database.At the same time,we should strengthen the training and guidance of handling domestic violence for related personnel.