Domestic Violence Law (Draft 2)

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The 16th meeting of the Standing Committee of the 12th National People's Congress performed initial review of this "People's Republic of China Domestic Violence Law (Draft)" in August 2015. The " People's Republic of China domestic violence Law (Draft)" is hereby released to the public on the Chinese National People's Congress website for collection of public comments. The public can directly log in to the NPC website ((www.npc.gov.cn))and provide comments; and may also mail comments to the Legislative Affairs Committee of the Standing Committee of the National People's Congress, (1 West Qianmen Avenue, Xicheng District, Beijing 100805) [in Chinese: 北京市西城区前门西大街1号,邮编:100805. Please clearly indicate on the envelope that it is a comment on the domestic violence Law draft. The consultation period concludes on: October 7, 2015.

 

Chapter I: General Provisions

Article 1: This law is formulated so as to so as to preserve equal, tranquil and civilized family relationships, to promote family harmony and social stability, to prevent and stop domestic violence, and to protect victims' lawful rights and interests.

Article 2: Domestic violence as used in this Law refers to the use of means such as beatings, restraints, harms, or forcible restrictions on physical liberty to commit injurious acts against family members.

Article 3: Countering domestic violence is the joint responsibility of the entire society and every family.

Relevant government departments, judicial organs, people's organizations, social organizations and urban and rural autonomous mass organizations at the basic level, enterprises and public institutions, shall work to counter domestic violence in accordance with this law and relevant laws and regulations.

Article 4: People's government institutions at the county level or above with responsibility for efforts on women and children, are responsible for organizing, coordinating, guiding, supervising and driving relevant departments' efforts to counter domestic violence.

All levels of people's government shall ensure necessary funding for efforts to counter domestic violence.

Article 5: Efforts to counter domestic violence follow the principles of putting prevention first, and combining education and punishment.

Chapter II: Prevention of Domestic Violence

Article 6: The State develops anti-domestic violence publicity and education, popularizing knowledge on domestic violence, and strengthening awareness of domestic violence.

The State encourages social forces to develop publicity activities countering domestic violence.

Labor unions, the Communist Youth League, and the Women's Federation shall organize and develop anti-domestic violence publicity and education within the scope of their work.

Article 7: Relevant government departments, judicial organs, and womens federations shall include efforts to counter domestic violence in their operations training and statistics.

Medical establishments shall do a good job of recording treatment of victims of domestic violence, and include countering domestic violence in their operations training.

Elementary and secondary schools shall develop education against domestic violence.

Article 8: Township people's governments and neighborhood offices shall organize and develop efforts to prevent domestic violence, and urban and rural autonomous mass organizations shall coordinate and assist.

Article 9: All levels of people's government shall support social organizations in developing services such as mental health consultation, family relationship guidance, and education on protecting against domestic violence.

Article 10: People's mediation organizations shall mediate family disputes in accordance with law, to prevent and reduce the incidence of domestic violence.

Article 11: Employers shall conduct trainings on fighting domestic violence for their employees. Where it is discovered that an employee is experiencing domestic violence, they shall discourage it, criticize the situation and educate the employee, and do a good job of mediating or resolving the domestic conflict.

Article 12: Guardians of minors shall correctly carry out family education and lawfully perform guardianship duties, and must not commit domestic violence.

Chapter III: Disposition of Domestic Violence

Article 13: Victims of domestic violence, their legally-designated representatives and close family may make a complaint, give feedback or seek aid from the perpetrator's or victim's unit, urban or rural basic-level autonomous mass organization, womens federation or other relevant unit. After relevant units receive a complaint of domestic violence, feedback or a request for aid, they shall give help and disposition.

Victims of domestic violence and their legally-designated representatives or close relatives may also report cases to the public security organs.

Article 14: Where primary or secondary schools, kindergartens, medical establishments or their employees discover in the course of their work that a person lacking civil capacity or with limited civil capacity has suffered domestic violence or might have suffered domestic violence; they shall promptly report it to a public security organ.

Article 15: After public security organs receive a report, they shall promptly dispatch police, stop the domestic violence, and follow the relevant provisions in investigating and gathering evidence, assisting in providing medical care, and evaluating injuries.

Article 16: Where the circumstances of domestic violence are lighter and public security administrative sanctions are not given in accordance with law, the public security organs give the perpetrator criticism and education or issue a written warning.

Written warnings shall include content such as the identity of the perpetrator, a statement of facts on the domestic violence incident, and a prohibition against the perpetrator continuing to commit domestic violence.

Article 17: Public security organs shall send the written warning to the perpetrator, victims, and local urban or rural basic level mass autonomous organizations.

Staff of urban or rural basic level mass autonomous organizations or community police shall look in on perpetrators and victims what have received the written warnings, and urge the perpetrator to not commit domestic violence again.

Article 18: People's governments at the county level or districted-city level may, either independently or by retaining an aid management organization, establish temporary residences to provide help to victims of domestic violence.

Article 19: Legal aid organizations shall provide legal aid to victims of domestic violence in accordance with law.

People's courts shall delay, reduce, or waive litigation fees for victims of domestic violence in accordance with law.

Article 20: People's courts trying civil cases involving domestic violence may verify facts of domestic violence on the basis of evidence such as public security organs' dispatch records, written warnings, and injury evaluation opinions.

Article 21: Where guardians commit domestic violence and seriously encroach their wards lawful rights and interests, the people's courts may, on the basis of an application by relevant persons or units, revoke guardianship credentials in accordance with law and separately appoint another guardian.

Perpetrators who have their guardianship qualifications revoked shall continue to bear the costs of maintenance, support, or custody for their wards.

Article 22: Urban or rural basic level mass autonomous organizations, labor unions, communist youth leagues, Women's Federation departments and other such units shall carry out legal education and psychological counseling of perpetrators of domestic violence.

Chapter IV: Personal Safety Protection Orders

Article 23: Where parties apply to people's courts for a personal safety protection order because they have suffered domestic violence or face an actual threat of domestic violence, people's courts shall accept it.

Where parties are unable to apply for a personal safety protection order due to reasons such as threats or compulsion, their close family may apply on their behalf.

Article 24: Applications for personal safety protection orders shall be submitted in writing; where there is truly a difficulty in applying in writing, the application may be oral and the people's courts will enter it in the record.

Article 25: The basic level people's courts for the residence of the applicant or the residence of the subject of the application have jurisdiction over personal safety protection order cases.

Article 26: The following conditions shall be met to make a personal safety protection order:

(1) Have a clear subject of the application;

(2) Have a specific request;

(3) parties have suffered domestic violence or face an actual threat of domestic violence.

Article 27: After people's courts accept an application, they shall make a personal safety protection order within 48 hours, or reject the application.

Article 28: Personal safety protection orders may include the following measures:

(1) Prohibiting the subject of the application from perpetrating domestic violence;

(2) prohibiting the subject of the application from harassing or following the applicant;

(3) ordering the subject of the application to move out of the applicant's residence;

(4) Other measures to protect the personal safety of the applicant.

Article 29: Where the applicant or subject of an application are dissatisfied with a personal safety protection order or the rejection of an application, they may apply for a single reconsideration. Enforcement of the personal safety protection order does not stop during the reconsideration period.

Article 30: The validity period for personal safety protection orders does not exceed 6 months, and they take effect on the date they are made.

Chapter V: Legal Responsibility

Article 31:Where a perpetrator commits domestic violence causing personal harm or property losses, they bear civil liability in accordance with law; where it constitutes a public security administration violation, they are given public security administrative sanctions in accordance with law; where it constitutes a crime, criminal responsibility will be pursued in accordance with law.

Article 32: Where the subject of the application violates a personal safety protection order, the people's courts shall give admonishments and may, on the basis of the severity of the circumstances, give a fine of up to 1,000 yuan and up to 15 days in custody.

Article 33: Where primary and secondary schools, kindergartens, medical establishments and their staffs do not follow article 14 of this law in making a report to the public security organs, causing serious consequences, the directly responsible management personnel and other directly responsible personnel are sanctioned.

Article 34: Where state personnel who have anti-Domestic Violence duties derelict their duty, abuse their authority, or play favorites, they shall be punished in accordance with law; where it constitutes a crime, they shall be pursued for criminal responsibility in accordance with law.

Chapter VI: Supplementary Provisions

Article 35: This law shall take effect on XXXXX.

 

Explanation of "People's Republic of China Domestic Violence Law (Draft)"

 

The leading comrades of the State Council are very concerned about the harmony and tranquility of the millions and millions of households and have repeatedly emphasized and indicated that family is every Chinese persons' roots, that the country can be peaceful when families are peaceful, that family harmony is of crucial importance, and that relevant laws and regulations should be continuously improved, truly safeguarding the rights and interests of all family members, especially women and children, striving to make every household peaceful and prosperous, and advancing the flourishing development of the entire nation. Domestic violence endangers the physical and psychological health and safety of family members, but also affects the security and stability of society. Countering domestic violence is a very important job. Drafting a special law against domestic violence is very necessary to preserving equal, tranquil and civilized family relationships, to promote family harmony and social stability, to raising the entire society's awareness and capacity to counter domestic violence, to increase the extent of efforts to counter domestic violence, to effectively prevent and address domestic violence in accordance with law, and to protect family members' lawful rights and interests.

The Women and Children's Work Committee of the State Council drafted the Domestic Violence Law of the People's Republic of China (Draft for Deliberation) is based on in-depth research and a thorough gathering of experiences. It was submitted to the State Council for review in March 2014. After receiving this document, the Legal Affairs Office widely solicited the opinions of relevant central departments as well as local governments, convened expert evidentiary hearings, conducted on-site local research, and solicited public comment. From this foundation, the Legal Affairs office and relevant departments repeatedly conducted research on and revisions of the draft for deliberation, and this took shape as the Domestic Violence Law of the People's Republic of China (Draft) (hereinafter "the draft"). The draft was debated, discussed, and adopted on July 28, 2015 at the 100th meeting of the State Council Standing Committee. The principal content of the draft is explained as follows:

I. Regarding Prevention of Domestic Violence

Prevention is an important part of efforts to counter domestic violence. The draft establishes that efforts to counter domestic violence follow the principle of putting prevention first and combining education and punishment. (Article 5) Several prevention measures are provided. First, the state develops domestic violence publicity and education and encourages social forces to develop promotional activities on domestic violence; and labor unions, communist youth leagues, women's federations, primary and secondary schools, and employing units shall develop publicity and education on domestic violence. (Articles 6,7 and 11) Second, relevant government departments, judicial organs, and women's federations and medical establishments shall include efforts to counter domestic violence in their operations training. Third, township people's governments and neighborhood offices shall organize and develop efforts to prevent domestic violence, and urban and rural autonomous mass organizations shall coordinate and assist. (Article 8) People's mediation organizations shall mediate family disputes in accordance with law. (Article 10)

II. Regarding the Reporting of Domestic Violence

The draft stipulates that the injured party to domestic violence as well as their legally-designated representative or kin may report the incident to the public security organ in order to discover and prevent domestic violence quickly. (Article 13) The draft also provides that primary or secondary schools, kindergartens, medical establishments or their employees which discover in the course of their work that a person with limited or no civil capacity has suffered domestic violence or might have suffered domestic violence shall immediately report the incident to the public security organ so as to better project the rights and interests of those persons. (Article 14) If they do not to serious consequences, the directly responsible management personnel and other directly responsible personnel shall be sanctioned. (Article 33)

III. Regarding written warnings

There are both lighter and more serious domestic violence situations, and the draft makes provisions for the differentiated treatment of different situations; where the situation is serious, public security administrative sanctions are given in accordance with law and even pursuit of criminal responsibility (article 31); where the circumstances are minor and public security administrative sanctions are not given in accordance with law, a warning system has been provided for on the basis of the experiences of local pilot projects, with the public security organs criticizing and educating the perpetrator or issuing a written warning (article 16), and rural and urban basic level mass autonomous organizations' staffs or community police shall check in on perpetrators and victims receiving the written warnings, and urging perpetrators to no commit domestic violence again (article 17).

IV. Regarding Personal Safety Protection Orders

Drawing on foreign civil protection order systems, and summarizing the experience of some people's courts personal safety protection pilot projects, the draft establishes a personal safety protection order system, providing that where parties apply to people's courts for personal safety protection orders because they have suffered domestic violence or face an actual threat of domestic violence, the people's courts will accept it (article 23); personal safety protection orders may include the following measures: prohibitting the subject of the application from committing domestic violence; prohibitting the subject of the application from harrassing or following the applicant; ordering the subject of the application to move out of the applicant's residence, and so forth (article 28). At the same time, the draft clarifies the effective period and legal consequences for violating personal safety protection orders in cases where a personal safety protection order is made (articles 26, 30, 32).

 

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