| Domestic violence affects family harmony and destroys social harmony and stability,which has been a hot issue in the whole society.Especially when there is domestic violence between husband and wife,more and more victims of domestic violence will choose to sue for divorce in order to escape this violent marriage.According to the law of our country,domestic violence is one of the legal reasons for divorce.In order to get the support of the judge,the victims of domestic violence must prove the existence of domestic violence and be recognized by the judge.However,the recognition rate of domestic violence in divorce cases is very low.China's "anti domestic violence law" has been implemented for more than five years,and some relevant regulations and rules have been actively introduced to guide the trial of domestic violence cases,but it still can not solve the problem of difficult identification of domestic violence.The reasons are as follows: firstly,most of the domestic violence occurs within the family,which has a certain degree of concealment;secondly,due to the great power gap between the two sides,it is very difficult for the victims of domestic violence to record the process through the equipment during the violence implementation,and they can not provide direct evidence after the violence stops.Through the empirical analysis of divorce judgments involving domestic violence in Jiangsu provincial courts from 2018 to 2020,most of the victims who can not easily submit the corresponding evidence will not be able to identify domestic violence because of the lack of evidence.Another reason for the low identification rate of domestic violence in divorce cases is that it is easy for the judge to identify it as a general family dispute in the trial.These two kinds of behaviors are different in nature.Once they are identified as family disputes,the trend of the case is quite different.Finally,the judge's attitude towards the domestic violence advocated by the parties in the trial of divorce cases will also affect the direction of the case.Due to the imperfection of the relevant laws and the huge work pressure brought by the division of property brought by divorce cases,the judge tends to judge not to allow divorce in the trial of divorce cases involving domestic violence,which also forces the judge to understand the facts of domestic violence in divorce cases It is not recognized,which leads to the low recognition rate of domestic violence in divorce cases.In order to solve the difficult problem recognized by the theoretical and practical circles,we need to start from many aspects.First of all,we should improve the anti domestic violence law,introduce judicial interpretation as soon as possible,make detailed provisions on the rules of evidence,distinguish the rules of proof in cases involving domestic violence and other civil cases,reduce the burden of proof of the parties,and reduce the standard of proof;strictly distinguish domestic violence and family disputes,avoid confusing the two behaviors;and increase the public security organs' awareness of family violence We should strengthen the intervention of violence cases,give full play to the vanguard role of public security organs in arriving at the scene at the first time,prejudge domestic violence,conduct investigation and evidence collection,and establish a linkage mechanism with the court;improve the professional level of judges in hearing divorce cases involving domestic violence,not be restricted by the principle of "no separation for the first time",and give full play to the role of family investigators to form a team It is a professional and active judicial investigation team.Through the implementation of the above measures,we can improve the enthusiasm and accuracy of the judges in the determination of domestic violence in divorce cases,achieve substantive fairness,safeguard the legitimate rights and interests of the victims of domestic violence,and promote the construction of social harmony and stability. |
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