PRC Domestic Violence Law (Draft) (Comments Draft)

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So as to increase the degree of transparency in government legislative work and raise the quality of legislation, the Legislative Affairs Office of the State Council hereby releases the "Domestic Violence Law of the P.R.C. (Draft for Solicitation of Comments" and the full text of its explanation, to solicit comments from all quarters of society. The following relevant matters are announced as follows:

Relevant units and all members of the public may submit comments by the following methods prior to December 25, 2014:

One, Log-in to the Chinese Government's legal information network (http://www.chinalaw.gov.CN), and use the "Laws regulations and comment system" on the left hand side of the homepage to submit comments of drafts for solicitation of comments.

Two, send opinions by letter to: Box 2067, Beijing city (postal code: 100035), and please specify on the envelope " Comment on the Domestic Violence Law".

Three, send comments via e-mail to: fjtbl@chinalaw.gov. cn。

Legislative Affairs Office of the State Council

November 25, 2014

 

Contents

Chapter I: General Provisions

Chapter II: Prevention of domestic violence

Chapter III: Disposition of domestic violence

Chapter IV: Personal Safety Protection Rulings

Chapter V: Legal Responsibility

Chapter VI: Supplementary Provisions

 

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

(Draft for solicitation of comments)

Chapter I: General Provisions

 

Article 1: This law is formulated on the basis of the Constitution, so as to prevent and stop domestic violence, to protect the lawful rights and interests of family members, to preserve equal, harmonious, and civilized family relationships; and to promote social stability.

Article 2: Domestic violence as used in this Law refers to physical, psychological or other infractions committed between family members.

Family members as used in this Law includes spouses, parents, children and also other close relatives living together.

Violent conduct between persons with foster family relationships is viewed as domestic violence.

Article 3: Countering domestic violence is the joint responsibility of the entire society. State organs, social organizations, enterprises and public institutions, and basic level autonomous mass organizations, shall work to counter domestic violence in accordance with this law and relevant laws and regulations.

Article 4: All levels of people's government shall strengthen efforts to counter domestic violence and ensure funding.

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.

The relevant departments of people's governments at the county level or above each complete efforts to counter domestic violence within the scope of their professional responsibility.

Article 5: All levels of Womens Federation, Workers Unions, and Communist Youth Leagues shall complete efforts to counter domestic violence within the scope of their work.

Article 6: Efforts to counter domestic violence implement principles of putting prevention first, and combining education and punishment.

Handling of domestic violence cases shall protect the victims' safety and privacy, and respect their wishes.

Special protection is given to minors, the elderly, persons with disabilities and persons with serious illnesses who sustain domestic violence infractions.

Chapter II: Prevention of domestic violence

 

Article 7: The state develops anti-domestic violence publicity and education, and encourages social organizations and citizens to develop public interest publicity activities countering domestic violence.

Employing units shall do a good job of publicity and education work against domestic violence among the unit's employees.

News media should do a good job of public opinion publicity against domestic violence.

Judicial administrative organs shall incorporate the laws against domestic violence into legal publicity and educational content.

The marriage registration office shall publicize anti-domestic violence knowledge and relevant laws and regulations to parties registering for marriage.

Article 8: Guardians of minors shall perform the duties of guardianship in accordance with law, and must not exhibit domestic violence against the minors.

Primary and secondary schools shall initiate education on anti-domestic violence knowledge, laws and regulations.

Article 9: People's courts, people's procuratorates, public security organs, civil affairs departments, and womens federations shall include efforts to counter domestic violence in their system's business training and statistics.

Medical establishments shall conduct training and guidance for their employees in areas such as diagnosis and care for domestic violence victims and their treatment needs, as well as differentiating commonly occurring psychological and behavioral issues, and referrals.

Article 10: Township people's governments, and neighborhood offices should guide basic level mass autonomous organizations in developing efforts to prevent domestic violence; organize and support of social work organizations and other social organizations in developing services such as mental health and family relations guidance.

Article 11: All kinds of mediation organization shall promptly mediate family disputes, to prevent and reduce the incidence of domestic violence.

Article 12: Prisons, detention centers, jails and other such places shall conduct legal education, psychological counseling and behavioral corrections for perpetrators of domestic violence who are being punished, detained or arrested in accordance with law.

 

Chapter III: Disposition of domestic violence

 

Article 13: Victims of domestic violence, their legally-designated representatives and close family may make a complaint or seek aid from the perpetrator's or victim's unit, a basic-level autonomous mass organization, womens federation or other relevant organization. After relevant units or organizations receive a complaint or request for aid, they shall promptly dissuade and mediate, and carry out criticism and education of the perpetrator .

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

Any organization or citizen has the right to discourage and stop acts of domestic violence, or to make a report to the public security organs.

Article 14: Where the following institutions discover in the course of their work that a person lacking civil capacity or with limited civil capacity, or a person who due to old age, disability, serious illness or other such illness is unable to make a report, has been subjected to domestic violence; they shall promptly report it to a public security organ:

(1) aid management institutions, social welfare organizations;

(2) primary and secondary schools, and kindergartens;

(3) Medical Establishments

Article 15: Public security organs receiving a report of domestic violence shall immediately dispatch police, and employ one of the following measures on the basis of the circumstances:

(1) Stop currently occurring acts of domestic violence;

(2) Promptly question victims, perpetrators and witnesses, using audio or visual recording, pictures or other means to secure the evidence, and create a written record.

(3) Where the victim requires immediate medical attention, they shall be assisted in contacting a medical establishment for care, and an injury appraisal retained as necessary; where the victim is a minor, an injury appraisal and suitable placement shall be promptly organized.

Article 16: When public security organs conduct questioning, they shall separate the victim and perpetrator for questioning.

Public security organs questioning minor victims shall consider the physical and psychological characteristics of the minor, so as to prevent causing further harm.

Where it is necessary to take a minor victim to the public security organ for questioning, their legally-designated representative shall be notified to appear. Where there is no was to give notice, a legally-designated representative cannot appear or refuses to appear, or where the legally-designated representative is the perpetrator, adult relatives of the minor victim may be contacted or a representative of the minor's school or basic-level autonomous mass organization may be notified to appear, and this circumstance noted in the case.

Article 17: Medical establishments shall promptly treat domestic violence victims and make good records of diagnoses and care.

Article 18: County or districted-city level people's governments shall establish or designate shelters to provide emergency shelter and short-term living assistance for victims of domestic violence who are temporarily unable to go home .

Article 19: Where domestic violence does not constitute a violation of public security administration or crime, public security organs may warn perpetrators of domestic violence in writing that they must not commit domestic violence again, and send a copy of the warning to the basic level autonomous mass organization or womens federation for the victims' residence or habitual residence.

Article 20: For acts of domestic violence where perpetrators should be pursued for criminal responsibility through private prosecution, the public security organs shall inform the victim, his legally-designated representative or close relatives that they may directly prosecute in the people's courts.

Where the victim is a person without civil capacity or with limited capacity for civil conduct, and their legally-designated representatives or near relatives do not make a complaint on their behalf, the people's procuratorates may make the complaint..

Article 21: Legal aid organizations shall provide legal aid to eligible victims of domestic violence. Legal service establishments are encouraged and supported in reducing or waiving legal services fees for victims who truly have financial hardship but do not meet the level of eligibility for legal aid.

Where a client meeting the requirements for legal aid applies for a forensic evaluation, the forensic evaluation institution shall follow the relevant provisions to reduce or waive the costs of the forensic evaluation.

People's court shall reduce, waive or delay closing costs of litigation for eligible victims of domestic violence.

Article 22: The people's court shall promptly accept and hear civil and criminal cases involving domestic violence in accordance with law.

Article 23: People's Courts hearing civil cases involving domestic violence, shall reasonably allocate the burden of proof.

Where, for objective reasons , victims are unable to gather evidence on the own, people's courts shall collect and gather it.

Article 24: Where domestic violence leads to divorce, the people's courts shall protect the victims' interests in dividing property, custody of children, the family home and other areas.

Article 25: 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 and separately appoint another guardian.

Guardians who have a legal duty of maintenance, support or custody, but have their guardianship qualifications revoked, shall continue to bear the costs of maintenance, support or custody.

3 months after guardianship qualifications are revoked, a party may apply in writing to a people's court to recover their guardianship qualifications.

Article 26: People's procuratorates conduct legal supervision of public security organs and people's courts handling of domestic violence cases, in accordance with law.

 

Chapter IV: Personal Safety Protection Rulings

 

Article 27: In the course of a people's court hearing divorce, maintenance, custody, adoption, inheritance or other such civil cases, victims of domestic violence may apply to a people's court for a personal safety protection ruling.

Prior to raising a lawsuit, victims of domestic violence may also apply to a people's court for a personal safety protection ruling. Where 30 days after a people's court has made a ruling the victim has still not raised a lawsuit in accordance with law, the people's court shall revoke the ruling.

Where victims cannot apply to the people's court for a personal safety protection ruling, their legally-designated representative or close relatives may apply to a people's court for a personal safety protection ruling on their behalf.

Article 28: Applications for personal safety protection rulings shall be submitted in writing.

Article 29: Applications for personal safety protection rulings shall meet the following requirements:

(1) Have a clear subject of the application;

(2) Have a specific request;

(3) have specific facts and reasoning.

Article 30: Where the victim applies for a personal safety protection ruling before raising a lawsuit, the jurisdiction is with the people's court for the location of the victim or perpetrator's residence or habitual residence, or a people's court with jurisdiction over the case.

Article 31: After people's courts receive an application, they shall make a personal safety protection ruling within 48 hours.

Where applications do not meet the requirements provided for in article 29, the applicant has not provided evidence or has provided insufficient evidence to prove the perpetrator's harmful conduct, people's courts will reject the application.

Article 32: Personal safety protection rulings include one or more of the following content items:

(1) Prohibit further harm to the victim by the perpetrator;

(2) Order the perpetrator to vacate the victims' residence;

(3) prohibit the perpetrator from coming near the victim;

(4) Prohibit the perpetrator from disposing of the victims' residence or other jointly owned real property.

Article 33: Within 24 hours after making a personal safety protection ruling, people's courts shall deliver it to the applicant, victims and perpetrator; and send a copy of the personal safety protection ruling to the public security organ, basic level mass autonomous organization and womens federation for the place of the victims' and perpetrators' residence or habitual residence.

Where an applicant, victim or perpetrator is dissatisfied with a personal safety protection ruling, they may apply for a reconsideration to the people's court that made the ruling within 25 days of receiving the ruling. The enforcement of the ruling does not stop during the period of reconsideration.

Article 34: Personal safety protection rulings take effect on the date they are issues and are valid from 1 to 6 months.

During the effective period for a personal safety protection ruling, the applicant, victim or perpetrator may apply to the people's court for a revocation of the ruling.

After a personal safety protection ruling expires, the applicant may again apply to a people's court for a ruling.

Article 35: Where public security organs, people's procuratorates or people's courts decide to release a suspect or defendant of a domestic violence crime on guarantee, they may add one or more content items from article 32 to the written release decision.

Article 36: For those convicted of a crime of domestic violence and sentenced to a suspended sentence or controlled release, one or more of the content items provided for in article 32 may be added to the judgment.

 

Chapter V: Legal Responsibility

 

Article 37: Where domestic violence constitutes a public security administration violation, the public security organs will give public security administrative penalties in accordance with law; where it constitutes a crime, the judicial organs shall pursue criminal liability in accordance with law.

Article 38: Where a perpetrator violates a personal safety protection ruling, people's courts give punishments in accordance with civil procedure law articles 111, 115, and 116; where a crime is constituted, criminal responsibility is pursued in accordance with law.

Article 39: Where aid management institutions, social welfare organizations, primary and secondary schools, kindergartens or medical institutions have not reported a case to the public security organs in accordance with the provisions of Article 14, causing serious consequences, the directly responsible person in charge other directly responsible personnel shall be sanctioned.

Article 40: Where state personnel who have anti-Domestic Violence duties derelict their duty, abuse their authority, twist the law for personal gain, or disclose private information, 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 41: This law takes effect on __, ___.

 

 

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