On The Improvement Of The Personal Safety Protection Order System In My Countr

The application of Habeas Corpus in China is limited to domestic violence.In pointing out the limited scope of application in habeas corpus,this paper mainly focuses on the improvement of the protection order system in domestic violence.Judicial remedies for domestic violence came before the implementation of Law on Family Violence.The Supreme Court had issued The Guidelines for the Trial of Marital Cases Involving Domestic Violence as an active attempt of the habeas corpus system,and then Law on Family Violence in 2016 further clarified this system.Although the legislation responds positively to social needs,the habeas corpus system meets failure in juridical practice.Court-approved habeas corpus rulings can be few and far between in the face of massive domestic violence,both in the Supreme Court’s data and in the searchable data.This is due to the defects of Law on Family Violence itself at the legislative level,as well as the operation of judicial practice,leading to currently insufficient judicial remedies for domestic violence.There is now a consensus to provide victims of domestic violence with the necessary remedies,taking into account the differences between domestic violence and other civil rights violations: both the perpetrator and the victim are members of the family living together,the abuse often occurs inner family and the victims have low ability to give evidence.Therefore,the legislation and the judiciary need to adjust to make the public power remedy for domestic violence effective.Specifically,this paper is divided into four chapters:In chapter one,the low rate of judicial application within the limited scope of application are mainly clarified.Chapter two focuses on the analysis of the causes of the operational dilemma of habeas corpus.First of all,the court raised the application requirements.In the case of the registration system,the court,based on the inherent mode of the review system and the consideration of risk avoidance and workload reduction,requires the parties to provide the corresponding evidence at the time of acceptance with the intensity of the subsequent trial,which is a disguised rejection of the application for a habeas corpus from the beginning.The protective order system faces procedural deficiencies,the legislation does not specify the service of procand does not pay attention to the protection of the respondent’s procedural interests,making the habeas corpus system regard entity,belittle procedure”;thirdly,the standard of proof for issuing habeas corpus in Law on Family Violence is too high,resulting in judges only being able to examine the application for habeas corpus with higher standards.At the same time,as far as the measures that can be taken for protection orders are concerned,the single standard of proof seems to be lack of pertinence,which is one of the reasons for the low issuance rate of habeas corpus rulings;finally,the remedial mode of adopting reconsideration for habeas corpus rulings is controversial both in theory and in practice.Chapter three provides a jurisprudential analysis for the way to solve the problems.First,based on the concept of protection of citizens’ rights and interests,legislation and justice should be done to expand the remedy group,reduce the burden of proof on the applicant,guarantee the respondent’s right to know as well as protect the interests of judicial relief at the party level;Additionally,a balance should be struck between the interests of the applicant and the respondent.Although the legislative purpose of the Law on Family Violence is to protect the interests of the parties affected by domestic violence,procedural importance should be attached to the protection of the procedural interests of the respondent;furthermore,under the premise that the procedural provisions of protection order cases are unclear,the trial of protection order cases has greater risks than ordinary cases,the trial has greater risks than ordinary cases,so judges are much less likely to respond actively based on the avoidance of professional risks;finally,to guarantee the implementation of the Law on Family Violence,the judicial practice should divide the proof standards of habeas corpus cases,clarify the remedy methods when the parties refuse to accept the first-instance ruling and guarantee the independence of review.The fourth chapter is the suggestions and ideas for improving the habeas corpus system in China.From the perspective of rights protection,the habeas corpus system should adopt the application registration system to smooth the judicial remedy channels from the beginning;legislation should also clarify the service procedure,not only to balance the interests of both parties,but also to help judges to identify facts to try the case;in terms of the implementation of the habeas corpus system,the standard of proof should be designed in a stepped manner.For more stringent measures,the standard of proof may be applied,while for measures with less impact on the respondent,the standard of interpretation may be applied;finally,the remedy mode of reconsideration should be changed to the remedy mode of appeal.In practice,due to the urgency of domestic violence cases,the flow of case files in appeals should be especially focused on shortening the time.