Explanation of the "People's Republic of China Anti-Domestic Violence Law (draft for solicitation of comments)"
The family is the fundamental cell of society, family harmony is the cornerstone of social harmony and stability. Domestic violence endangers the physical and psychological health and safety of victims, but also affects the security and stability of society. The Party and government attach great importance to efforts to counter domestic violence, the Marriage Law, Law on the Protection Women's Rights, Law on the Protection of Minors, Law on the Protection of the Elderly, Law on the Protection of Persons with Disabilities and other laws all have anti-domestic violence content; and 22 provinces have introduced local anti-domestic violence regulations. The drafting of this Law specially addressing domestic violence is absolutely necessary to raise awareness of domestic violence of the whole society, to increase efforts to counter domestic violence, to prevent and combat domestic violence, to protect the legitimate rights and interests of family members, and to maintain equal, harmonious and civilized family relationships and promote social harmony and stability.
On a foundation of in-depth research and an earnest tallying of experiences; the Women and Children's Work Committee of the State Council has drafted the "Domestic Violence Law of the People's Republic of China (draft manuscript for Review) " and submitted it for review to the State Council in March, 2014. After the Legal Affairs Office received this, it sought the opinions of 66 central units as well as views of the 31 provincial people's governments, and, in conjunction with the drafting departments, repeatedly studied, modified, and formed the People's Republic of China Law against domestic violence (draft for soliciting opinions) (hereinafter Comment Draft) with a total of 6 chapters and 41 articles. The principal content is hereby explained as follows:
I, the definition of domestic violence
Domestic violence takes the form of physical harm, psychological harm, or both physical and psychological harm among spouses, parents, children and also close releatives and other family members living together. As such, the draft for solicitation of comments provides that domestic violence refers to physical, psychological or other infractions between family members (Article 2, paragraph 1). In consideration that foster care relationships are objectively similar to family relationships, the comment draft provides that violent conduct between persons with foster family relationships is viewed as domestic violence (Article 2, paragraph 3). There is no real difference between violence in relationships such as romantic involvements, cohabitation and former spouse, and violent conduct between ordinary members of society, and will be handled by administrative security punishments, the criminal law, and other laws.
II. Regarding the prevention of domestic violence
Prevention efforts are an important means of effectively reducing the occurrences of domestic violence. To this end, the draft for comment draft establishes the principles of putting prevention first, and combining education and punishment (Article 6, paragraph 1); and at the same time provides for the following prevention methods:
First is strengthening publicity and education, elevating the entire society's awareness of domestic violence. The comment draft provides that countering domestic violence is the joint responsibility of the whole society, that the state develops domestic violence education, and requires employing units, the news media, judicial administrative authorities, the marriage registration offices and schools do anti-domestic violence publicity and education (Articles 3, 7, 8).
Second, is strengthening operations training to enhance professional skills in countering domestic violence. The Comment Draft provides that people's courts, people's procuratorates, public security organs, civil affairs departments, womens federations, and medical establishments shall include anti-domestic violence efforts in their system's professional training.
Third is the establishment of social service mechanisms, multiple channels for resolving family conflicts to reduce the incidence of domestic violence. The Comment Draft provides that township people's governments and neighborhood offices shall guide basic level autonomous mass organizations in launching prevention efforts, and organize and support social organizations in providing guidance and services on family relations; mediation organizations shall promptly mediate family conflicts; places such as prisons, detention centers and jails shall conduct behavioural corrections of perpetrators in accordance with law (articles 10, 11, 12).
Fourth is to strengthen the obligations of guardians, and raise the level of lawful guardianship. The comment draft provides that the guardians of minors shall perform their guardianship duties in accordance with law and must not commit domestic violence against the minors (article 8).
III, Regarding the handling of domestic violence
Domestic violence endangers society, even though it occurs between family members, it has a special nature that requires defining the boundaries and methods by which public power intervenes. To this end, the Comment Draft has provisions on circumstances from the discovery and reporting of a case, the public security organs's disposition, relief for the victim, personal safety protection rulings from the people's courts :
First, set up a family violence detection and reporting system. The Comment Draft provides that victims 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 and may also make a report directly to the public security organs; any organization or citizen all have the right to make reports to the public security organs. At the same time, so as to better protect juveniles , the elderly and other groups with special vulnerabilities, the Comment Draft provides that where aid management institutions, social welfare organizations, primary and secondary schools, kindergartens or medical establishments discover that a person is unable to make a report to a public security organ because they lack or have limited civil capacity; or are elderly, disabled or seriously ill; they shall make a prompt report to the public security organ (article 14) ; and where failure to make a prompt report causes serious consequences, they must bear corresponding legal responsibility (article 39).
Second is setting up a system for warnings by the public security organs. The Comment Draft provides that perpetrators of serious domestic violence are given administrative security punishments or criminal penalties (article 38), and thatperpetrators of minor domestic violence that does not constitute an security administration violation or crime are given a written warning to not commit further acts of domestic violenc by public security organs, and that a copy of the warning is sent to the basic-level autonomous mass organization or women's federation to facilitate oversight of the perpetrator's corrections (article 19).
Third is to improve victim assistance system. The Comment Draft provides that relevant units and institutions shall provide victims with medical assistance, shelter, legal aid, and judicial assistance, so as to provide several forms of aid to victims (art. 15, 18, 21)
Fourth, improve people's court system of personal safety protection rulings. The Civil Procedure Law provides that a people's court may make conduct preservation rulings upon application of victims in civil proceedings or before proceedings. So as to protect the personal safety of victims, the Comment Draft provides that in the course of civil trials such as divorce or inheritance proceedings, victims may apply to the people's court for a personal safety protection ruling, prohibiting the perpetrator from further harming the victim, ordering the perpetrator to vacate the victim's residence, prohibiting the perpetrator from coming near the victim, and prohibiting the perpetrator for making disposition of the victim's home or other jointly owned property. Where a suit has not yet been raised, the victim may also apply for a personal safety protection ruling, but if 30 days after the people's court's ruling a suit has not been raised, the ruling is revoked (articles 27, 32). At the same time, the comments draft provides that for the effective period of rulings and the liability for violating a ruling (articles 34, 38).