Judicial Softening Of The Elements Of "Domestic Violence" In Litigation Divorce And Its Countermeasures

Domestic violence is the legal cause of divorce and damage compensation stipulated in China’s law,but there is a phenomenon of softening domestic violence in divorce proceedings.Although it is not universal,this phenomenon still deserves attention in order to better protect the legitimate rights and interests of victims of domestic violence.This paper focuses on the judicial judgment of divorce proceedings involving domestic violence,carries out empirical research from the two dimensions of large sample statistical analysis and case in-depth investigation,analyzes how and why judicial practice softens the "domestic violence" elements of divorce proceedings,and puts forward preliminary response plans,in order to deepen the reform of family trial methods and working mechanisms and further protect the rights of victims of domestic violence.The first chapter puts forward the problem of this paper,that is,how to apply the "domestic violence" element of legal divorce in the judicial practice of divorce litigation.Around this problem,this paper expounds the research background and significance,summarizes the existing literature,and introduces the research ideas and methods.The second chapter combs the theoretical origin and normative basis of the elements of "domestic violence" in litigation divorce.The theoretical origin of domestic violence into law stems from the development of feminist theory,which promotes the international convention to put forward gender mainstreaming and eliminate domestic violence based on gender discrimination.The normative basis of the elements of "domestic violence" is mainly the provisions of the marriage law,which is constantly improved with the revision of the marriage law;The provisions of other anti-domestic violence related legislation strengthen the legitimacy and legitimacy of divorce for victims of domestic violence.The third chapter expounds the problems found in the empirical analysis.Based on the empirical analysis of 426 divorce judgments involving domestic violence published in Jiangsu Province from 2017 to 2020,it shows that there is a phenomenon of judicial softening of the elements of domestic violence in practice,which is specifically manifested in softening the hard legal standards of the elements of "domestic violence" into problems that can be ignored,such as moral defects or life chores,and decoupling the problem of domestic violence from whether to approve divorce.In the case,the elements of judicial softening of "domestic violence" are reflected in two aspects: the difficulty of identifying the facts of domestic violence and the difficulty of applying the legal provisions of domestic violence.The fourth chapter analyzes the reasons why judicial practice softens the elements of "domestic violence".There are two reasons for the difficulty in determining the facts of domestic violence: one is the difficulty in obtaining evidence and providing evidence of domestic violence,and the other is the high standard of proof of domestic violence.There are also two reasons for the difficulty in applying the legal provisions on domestic violence: first,there is a conflict between the interests of the case trial and the judges,which leads to the avoidance of the concept of Family Justice on the issue of domestic violence;Second,the Gender Tendency of divorce proceedings leads to the neglect of domestic violence in divorce trials and the failure to realize the substantive justice of protecting the weak.The fifth chapter puts forward the countermeasures to soften the elements of "domestic violence" in judicial practice.In order to alleviate the dilemma of domestic violence fact finding,one is to improve the judicial initiative of domestic violence fact finding,and the other is to improve the rules of proof of domestic violence fact finding.In order to alleviate the difficulty of applying the legal provisions on domestic violence,first,we should strengthen the concept of gender equality in family justice,and second,we should promote the "elements" of divorce proceedings.