Research On The System Of Personal Safety Protection Order In China

The system of writ of habeas corpus was first traced back to the system of writ of habeas corpus in common law countries,which was known as the "great writ of freedom" and applied as an injunction in equity law.Since the 1960 s,domestic violence has been solved through legislation in foreign countries,among which the most powerful relief system is the system of habeas corpus protection order.Because of the lack of traditional ideas and the rule of law environment,in the work of prevention and control of family violence in our country has been in a state of groping,until the safety protection system in 2016 the anti-family violence law of the People's Republic of China(hereinafter referred to as the anti-family violence law)in the formal rules,to make up for the long legal vacancy,created the public power into the door,new patterns of family violence intervention.The order of personal safety protection in China has the independence of procedure,including the right of personal claim,behavior preservation and the nature of non-litigation procedure of family affairs.It completes the transformation from compulsory measures to special procedures,and provides a theoretical basis for the selection of non-litigation procedures.Study of safety protection system,the Chinese judicial documents network from2016 to 2019,the personal safety protection,summarized the decision analysis,draw a number of applications,unbalanced regional distribution,and the trial time is extended,lack of guidance in practice this means that legislation,legislative regulations didn't fit the development of practice.In addition,the safety protection system in our country is still belong to the new product,compared with 2016,although the current legislation before about the anti-family violence law legislation exist advantages,such as generation of application scope,protection of species increased,the determination of executive main body of service,but the corresponding legislation is too humble,lead to personal safety protection system in practice there is a dilemma.First,the content of the application is not broad.First,the scope of application of the subject is too narrow,will lead to the same application subject but different results;Second,the role of the substitute applicant is low and its role in practice is very limited.Secondly,the types of protection are not comprehensive.First,the minor is not to carry on the key protection,can not realize the minor's benefit maximization;Second,the lack of financial security measures,resulting in the applicant's application for protection order can not fully protect the daily life.Moreover,the rules of proof are not clear.First,the scope of evidence is limited,and there is no evidence except personal injury,mental violence and economic control.The second is that the standard of proof is not stipulated in the legislation,which deviates from the original intention of the establishment of habeas corpus,so that it fails to play its unique value.Third,the distribution of burden of proof is not specific,there is a lack of specific provisions on the distribution of burden of proof in legislation.Finally,the delivery execution is unreasonable.First,the process of service is faced with difficulties.Both the time of service and the way of service need to be improved.Second,the judge's execution lacks deterrent force,and there are some unreasonable points in the practice;Third,the obligation of auxiliary organs is not specific,resulting in mutual buck-passing among various departments.To protect victims' rights,it is necessary to model the system developing personal safety protection order outside of the United States,Britain,Germany and Taiwan mature system in our country,based on its application,the types of protection,to prove that the content of the rules and enforcement is discussed,combined with China's national conditions and judicial practice and puts forward some countermeasures to improve.To be specific: first,add the application content of habeas corpus.The first is to expand the scope of application of the subject,which can be extended to people who are related by marriage;Second,strengthen the role of the applicant and strengthen the initiative of the applicant or the application agency.Secondly,the protection types of habeas corpus are specified.The first is to give special protection to minors,and the special chapter provides protection measures for minors;Second,increase the measures of economic security,prohibit the disposal of the common property and pay the basic living expenses of the applicant.Furthermore,the rules of proof of habeas corpus should be clarified.One is to expand the scope of evidence,which can be proved by testimonies from neighbors,neighborhood committees and videos or photos taken by the applicants themselves.Second,reduce the standard of proof to the extent of "preponderant evidence";The third is to clarify the burden of proof of the applicant,exclude the inversion of the burden of proof.Finally,the service and execution of writ of habeas corpus should be improved.First,the service procedure can be simplified,the service time can be stipulated,and the service method can be clarified.Second,the public security organs should be added as the enforcement subject to reduce the burden on the court and reflect the advantages of the public security organs.The third is to clarify the duties of the auxiliary organs,refine the internal division of labor,and strengthen the internal linkage.