The following is an explanation on the Proposed Draft from the perspectives of the necessity, the feasibility and the main content, the purpose of which is to facilitate a comprehensive understanding of the Proposed Draft.
I. The Necessity of Adopting an Anti-Domestic Violence Law
1. Domestic violence is a widespread phenomenon that poses a great danger to society. A special national legislation is urgently needed in order to effectively prevent and stop domestic violence.
A recent investigation shows that the occurrence rate of domestic violence in China is as high as 29.7%-35.7% and the majority of the victims of domestic violence are women, children and the elderly. 1 Between 2004 and 2008, women's federations throughout the country received an average of 40,000 to 50,000 complaints of domestic violence-which consisted one tenth of the total number of complaints received by women's federations-each year, and the number has been growing steadily. 2 An investigation on the current situation of domestic violence in rural areas in 31 provinces, autonomous regions and municipalities conducted in 2007 showed that the problem of domestic violence was very serious in rural areas: 62.02% of interviewees indicated that there had been incidents of domestic violence in their villages in the previous two years. 3 Domestic violence not only violates the basic human rights of citizens and results in bodily, spiritual and sexual harms to its victims, but also poses serious threat to the family-the basic unit of the society. It even has a harmful effect on children, neighbors, and many other people as well as on work places, communities and the society as a whole, thereby seriously endangering social harmony and stability. The harmful effect of domestic violence is not limited to the moment when the violence takes place, but will often spread and lead to more far-reaching consequences, such as victims of domestic violence committing suicide or meeting violence with violence or child witnesses of domestic violence turning into potential perpetrators of domestic violence, etc. Domestic violence has become a serious problem that threatens the stability of family and society, and impedes harmonious social development. Therefore, an anti-domestic violence law is urgently needed in order to safeguard the basic human rights of citizens, uphold stability of family, and promote social harmony.
2. The existing laws and regulations cannot effectively deal with the problem of domestic violence and a unified anti-domestic legislation at the level of basic law is urgently needed.
Currently domestic violence is clearly prohibited by the Constitution, the Marriage Law, the Law on the Protection of the Rights and Interests of Women, and some other Chinese laws; corresponding local regulations have been adopted in 27 provinces, municipalities directly under the Central Government and autonomous regions; and, in 2008, the Propaganda Department of the Central Committee of the Communist Party of China, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Civil Affairs, the Ministry of Health and All-China Women's Federation Jointly adopted a document entitled Several Opinions on Preventing and Stopping Domestic Violence. Although the above-mentioned laws, regulations and documents have played an important role in suppressing domestic violence, the following problems remain unresolved: first, the lack of a special national law on domestic violence. The existing provisions on domestic violence are scattered in many different laws and regulations with no logical connection between them. These provisions are not systematic or standardized and their contents are incomprehensive or incomplete; second, there are many blank areas in legislation on domestic violence and the existing laws and regulations are too abstract and general in nature and lack operability and, as a result, are very difficult to be truly applied in judicial practice; third, many legal provisions on domestic violence belong to low-level laws such as ministerial regulations or local regulations and no substantive breakthrough has been make in areas of legal procedure, burden of proof, and measures of assistance, which are at the level of basic law; and fourth, the current norms put emphasis on punishment after the fact but lack timely and effective intervention or prevention measures against on-going or recurring domestic violence. Therefore, a national law on domestic violence is urgently needed in order to effectively combat domestic violence and resolve the problems of incomprehensiveness and incompleteness of, and lack of logical connection between, the existing legal provisions on domestic violence.
3. There is still a big gap between the current Chinese legislation and international legislation in the field of domestic violence. The adoption of an anti-domestic violence law is imperative in order to bring the Chinese law in conformity with the general legislative trend of the international community of strengthening the protection of the interest of vulnerable groups.
In 1995, the fourth World Conference on Women was successfully held in Beijing, China. The Beijing Declaration and Platform of Action emphasized and reiterated the determination of the international community to combat domestic violence. Today, all forms of violence, including domestic violence, have been clearly prohibited by the Declaration on the Elimination of Violence against Women and a series of other international conventions. 60 countries in the world have adopted special laws against domestic violence, and seven have adopted special laws against gender-based violence. Adopting special law on domestic violence has become an international trend of development. Therefore, China should also adopt a special law against domestic violence so as to strengthen the protection of the vulnerable groups of the society, integrate itself into the international trend of legal development, and further improve China's international image.
II. Feasibility of Adopting an Anti-Domestic Violence Law
1. The existing legislation and judicial practice in China have provided legislative basis and native experience for the adoption of an anti-domestic violence law.
The general principles relating to domestic violence in the Constitution, the Marriage Law, the Law on the Protection of Rights and Interests of Women, and other laws have provided the legal basis for the adoption of a special law against domestic violence. The Several Opinions on the Preventing and Stopping Domestic Violence Jointly adopted by the Propaganda Department of the Central Committee of the Communist Party of China, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Civil Affairs, the Ministry of Health and All-China Women's Federation in 2008 and numerous local regulations against domestic violence adopted and implemented in 27 provinces, municipalities directly under the Central Government and autonomous regions have provided legislative experience for the adoption of such a law. The relevant judicial interpretation issued by the Supreme People's Court and the trial practice of people's courts at various levels in the past decade have provided very good judicial experience and native legislative resources for the adoption of the law.
2. Academic researches and activities have provided theoretical support for the adoption of the law.
In recent years, the issue of domestic violence has attracted wide attention from the Chinese government as well as people from all sectors of the society. Academic researches in the field of anti-domestic violence have been unprecedentedly active and academic activities are frequent. These researches and activities have effectively improved anti-domestic violence theories, promoted the anti-domestic violence practice, and provided powerful theoretical support for the anti-domestic violence legislation. Especially worth mentioning in this respect is the Anti-Domestic Violence Network of China Law Society. It was established in 2000 as the first multi-disciplinary network organization in China specialized in the research of domestic violence with multi-agency cooperation. It has been engaging in the promotion of anti-domestic violence legislation, theoretical research and practice for many years, produced a large amount of research results, and submitted the Draft Law on the Prevention and Punishment of Domestic Violence in 2003, thereby laying a solid foundation for the adoption of the law in China.
3. The understanding and recognition of the issue of domestic violence by the general public have provided social basis for the adoption of the law.
Since the Fourth World Conference on Women in 1995, the issue of domestic violence has attracted more and more public attention, the harms of domestic violence have been understood by the public, and the need to prohibit all forms of domestic violence by law has been generally recognized. A solid social foundation for the adoption of an anti-domestic violence law has been laid. An investigation showed that the majority of the people interviewed believed that it was necessary to adopt a separate, comprehensive, special anti-domestic violence law. 4
4. International conventions and foreign legislations in the field of domestic violence have provided international experience for the adoption of the law.
China has signed or participated in the adoption of the Convention on the Elimination of All Forms of Discrimination against Women, the Declaration on the Elimination of Violence against Women, Beijing Declaration and Platform of Action and many other international instruments, which all make it clear that the elimination of all forms of violence against women, including domestic violence, is an obligation of the state. In order to fulfill this obligation, a series of international instruments and national laws and regulations have been adopted by the international community and various countries in the world. Currently over 80 countries and regions in the world have adopted relevant legislations, which provide China with useful experiences and reference in the adoption of an anti-domestic violence law.
Based on the above reasons, we suggest that the NPC include the adoption of an anti-domestic violence law in its legislative plan and adopt and promulgate the law as soon as possible.
III. Main Content of the Draft Law on the Prevention and Punishment of Domestic Violence
The Law on the Prevention and Punishment of Domestic Violence (A Draft Proposed by Experts) was revised according to the principles of adhering to the guiding idea of scientific law-making, combining theoretical research with on-site investigation, taking the Chinese national conditions, experiences and native resources as the basis while at the same time taking into full consideration relevant foreign legislative experiences. Emphasis was laid on the scientific nature of the content and operability of the concrete provisions. While attention is paid to the internal logic system of the Draft Law itself, great efforts have been made to dovetail the Proposed Draft Law with the existing laws and regulations, so as to avoid conflicts of law and make maximum use of the existing legal resources.
The Proposed Draft consists of eight chapters: General Provisions, Administrative Intervention, Social Intervention, Civil Law Intervention, Criminal Law Intervention, Evidence, Legal Responsibility and Supplementary Provisions. Its main content includes:
1. Establishment of basic principles of prevention and punishment of domestic violence that embody advanced legislative ideas.
The chapter one basic principles of anti-domestic violence embodies the basic values of the law in a highly generalized and condensed form and provides the basic ideological basis for concrete legal norms. It is a converging point between abstract basic values and concrete legal norms and reflects the faiths that must be adhered to and goals that must be achieved in adopting the anti-domestic violence law. The Proposed Draft establishes the following five principles from the perspective of human rights theory and gender perspective: (1) the principle of prohibition of all forms of domestic violence. All forms all domestic violence must be opposed and prohibited and there shall be zero tolerance towards domestic violence; (2) the principle of establishing a government-guided multi-agency cooperation system. Domestic violence is not a private matter, but a public hazard that violates the human rights of members of family. Protecting citizens from domestic violence is an obligation of the state. This principle clearly identifies the subjects or bearers of the responsibility to implement the law; (3) the principle of early intervention and putting prevention first. By incorporating legal sanction into the strategy of prevention, it endeavors to change the passive approach of emphasizing legal punishment while ignoring social prevention. Through socialized proactive prevention and intervention measures, it endeavors to reduce the occurrence and prevent the malignant change of incidents of domestic violence, and change the old passive intervention mode of only taking legal intervention measures after the consequence of domestic violence has occurred; (4) the principle of putting the victim first. This principle takes the protection of the lawful rights and interests of the victims of domestic violence as the direct objective of the law and gives special protection to the minor victims of domestic violence; (5) the principle of combining education and correction with punishment. While imposing legal responsibilities on the perpetrators of domestic violence, the government must also provide necessary education, behavioral rectification and psychological treatment to such persons so as to reduce and prevent incidents of domestic violence.
2. A clear definition of the concept of domestic violence that gives maximum protection to the victims of domestic violence.
The definition of domestic violence is very important: it has an important bearing on such questions as which people should be protected by the law, which acts should be prohibited by the law, what are the scope and extent of the measures for the prevention and punishment of domestic violence, and what are the scope and extent of protection provided to the victims of domestic violence.
The Proposed Draft adopts a definition of domestic violence that combines the method of generalization with the method of enumeration. It defines domestic violence as "acts of causing bodily, spiritual, sexual harms committed by one family member against another member of the same family" and enumerates the six common forms of domestic violence, including bodily injury, restriction of freedom, insult and intimidation. In terms of the subjects of domestic violence, the Proposed Draft extends the scope of its protection to people who are in a dating and cohabitation relationship or who have formerly been in a spousal relationship because there often exists a love-hate relationship between these people which is difficult to break up and can often lead to violence similar to domestic violence. Therefore, similar measures of prevention and protection are needed. In terms of the behavior mode of domestic violence, the definition given by the Proposed Draft covers various forms of bodily, sexual, spiritual and economic harms so as to bring it in conformity with the relevant international conventions signed or ratified by China and maximize the protection of the interests of the victims of domestic violence.
3. The establishment of anti-domestic violence committees to be responsible for coordinating the multi-agency cooperation mechanism.
The prevention and punishment of domestic violence is a systematic project involving many different government departments and units and, as such, it needs to be planned and coordinated by a special organization. The Proposed Draft establishes anti-domestic violence committees to be special agencies responsible for the overall planning and coordination of the anti-domestic violence work.
The Proposed Draft establishes anti-domestic violence committees at different levels provides for their main functions and duties. On the one hand, these committees are a kind of coordinating and consultative organ responsible for coordinating and supervising the anti-domestic violence work of the relevant government departments; on the other hand, they are also responsible for accepting complaints, offering consultation, and conducting statistical surveys and other works. They play an extremely important role in the mechanism of prevention and punishment of domestic violence.
4. Establishment of a social intervention mechanism and Construction of a pluralistic prevention and punishment system and service network
Domestic violence intervention mechanism is a framework structure consisting of administrative, judicial and social interventions with numerous and variegated subjects whose functions are complicated, interrelated, and mutually supplementary. In the mechanism of prevention and punishment of domestic violence, social intervention performs the comprehensive function of "preventing domestic violence before it is perpetrated, putting a stop to acts of domestic violence while it is perpetrated, and providing services to the victim after domestic violence is perpetrated". In order to give full play to the unique role of social intervention, overcome the imbalance between the supply of judicial resources and the need of conflict resolution, and realize the diversification of the means of prevention and punishment of domestic violence, the Proposed Draft establishes the first social intervention mechanism in China and makes it an important link in the overall domestic violence intervention mechanism.
The social intervention provided for in the Proposed Draft refers to various works of preventing and suppressing domestic violence carried out by various sate organs, social organizations, enterprises, institutions and other organizations using specified methods in accordance with law. It include various intervention measures, such as publicity, education, dissuasion and mediation, as well as various protection, assistance and services to the victims of domestic violence, such as complaint mechanism, shelters, medical treatment, and legal aid.
5. Establishment of the system of civil protection order and strengthening the before-the-fact prevention of domestic violence
The system of civil protection order is currently the main judicial means used by various countries in the world to deal with the problem of domestic violence and its effectiveness and feasibility have been proven by the judicial practice of these countries. Compared with traditional remedies, the system of civil protection order shifts the emphasis from the post-fact punishment of the perpetrator to the before-the-fact protection of the victim, therefore is a preventive, quick and convenient mechanism. Because of its simple and quick procedure, it is a more direct and powerful preventive measure that provides the victim of domestic violence with rapid and effective remedies.
In March 2008, the China Applied Law Institute of the Supreme People's Court issued the Guideline for Hearing Marriage Law Cases Involving Domestic Violence as a reference for judges in handling cases involving domestic violence. Chapter Three of the Guideline contains special provisions on "Measures for the Protection of Personal Safety". The Guideline was implemented on a trial basis in nine grassroots people's courts selected throughout the country and good results have been achieved. The Proposed Draft establishes the system of civil protection order so as to truly protect the personal safety of victims of domestic violence, effectively suppress domestic violence, and prevent the escalation and recurrence of domestic violence.
The civil protection order provided for in the Proposed Draft refers to an order issued by a people's court in accordance with law that requires a perpetrator of domestic violence to carry out or refrain from a certain act. The purpose of such order is to stop domestic violence and protect the safety of victims of domestic violence. There are two types of civil protection orders: the first one is injunction, namely an order that prohibits a perpetrator of domestic violence from engaging in certain acts, for example an order that prohibits him or her from perpetrating further act of domestic violence against a victim or harassing a victim by telephone, letters, the internet and other means; the second one is an order that requires a perpetrator of domestic violence to pay a certain amount of money, deliver a certain thing, or to carry out a certain act, for example, an order that requires him or her to pay living expenses, medical expense and other necessary expenses of the victim or a person supported by the victim. The Proposed Draft also provides for the procedures for applying a civil protection order and the legal liabilities for violation of a civil protection order.
6. Improvement of the rules of evidence and reasonable distribution of the burden of proof.
Since domestic violence cases transcend the scope of ordinary private right disputes, and there is a serious imbalance in the distribution of evidence between parties to such cases, the application of the existing rules of evidence and principles on the distribution of the burden of evidence applicable in cases of private right dispute will put the disadvantaged victim in a even more disadvantaged position. Therefore, the Proposed Draft has revised the rules on the ascertaining of evidence, the standard of proof, and the distribution and transfer of burden of proof so as to lessen the burden of proof for victims of domestic violence and reduce the difficulties faced by them in producing evidence. These revisions are in conformity with the legislative idea of 'putting the victim first' of the Proposed Draft as well as with the special characteristics of domestic violence cases, and conducive to the realization of genuine judicial justice. The Proposed Draft also introduces into the rules of evidence the concept of battered woman syndrome, which can be used as evidence for mitigating the legal responsibilities of the victim of domestic violence. Bettered woman syndrome is a special behavioral pattern of inability to take action to stop the perpetrator from committing violence, namely a condition of psychological paralysis characterized by passiveness, submission, and helplessness, that appears in women who have been subjected to violent abuse by their husband or boyfriend for an extended period of time in a marital or cohabitation relationship marked by periodical violence. Such victims are often unable to get any help and find themselves in a condition of isolation, helplessness and extreme fear for an extended period of time. Once they take self-relief action and "meet violence with violence", they face severe punishment for violation of the Criminal Law. By introducing the concept of bettered woman syndrome into the rules of evidence, the Proposed Draft changes this unfair judicial reality, reduces the legal responsibility of victims of domestic violence by taking into consideration the factors that lead to a crime, and provides those who meet violence with violence with a legal remedy.
7. Clarification of legal responsibilities and construction of a system of legal responsibility for domestic violence.
The system of legal responsibility plays an important role in providing the victim of domestic violence with relief and compensation, punishing the perpetrator of domestic violence, and preventing the recurrence of domestic violence. Since the prevention and punishment of domestic violence is a comprehensive and systematic project, a holistic and comprehensive approach must be adopted in the establishment of responsibilities.
In the arrangement of legal responsibilities, the Proposed Draft integrates the administrative, civil and criminal responsibilities for domestic violence and endeavors to ensure the unification and dovetailing of such arrangement with the existing legal provisions. For example, in the part on criminal responsibilities, the Proposed Draft makes a typological treatment of the crime of domestic violence in accordance with the relevant provisions of the Criminal Law by categorizing and integrating various crimes relating to domestic violence and puts them under a single provision on the 'crime of domestic violence', thereby establishing a comprehensive and systematic legal basis for the relevant judicial practice. The part on civil liabilities in the Proposed Draft is based on the relevant provisions in the General Principles of Civil Law and the Tort Law. By establishing seven different types of civil liabilities, including liabilities for the violations of the body, of sexual autonomy, of reputation, and of property, liabilities for illegal abortion, and liabilities for the abuse of guardianship, it makes up the insufficiency of remedies for domestic violence in the current Chinese laws and improves the domestic violence liability system as whole.
Anti-Domestic Violence Network of China Law Society
1Statistics available at: http://www.mzfz.gov.cn/fzwq/686/690/2008-10-09/2008100939411.html (Last visited October 9, 2008).
2 Source: Department of Rights and Interest, All China Women's Federation available at: http://news.163.com/09/0307/14/53QF6TAF000120GU.html (Last visited: March 7, 2009)
3Source: Chen Wei and Ni Dan, An Empirical Research on Domestic Violence in Rural China, in Special Research on Marriage Law (2007), China People's University of Public Security Press, 2008.
4Rong Weiyi and Song Meiya, Combating Domestic Violence against Women, China Social Sciences Press, 2002, p.29.