Opinion on Handling Criminal Cases of Domestic Violence in Accordance with Law

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Title: Opinion on Handling Criminal Cases of Domestic Violence in Accordance with Law

Promulgating Entities:The Supreme People's Court,The Supreme People's Procuratorate, The Ministry of Public Security, and Ministry of Justice.

Reference number:

Promulgation Date: 2015-3-2

Expiration date:

Source of text: http://www.court.gov.cn/fabu-xiangqing-13616.html

Opinion on Handling Criminal Cases of Domestic Violence in Accordance with Law

The Supreme People's Court,The Supreme People's Procuratorate, The Ministry of Public Security, and Ministry of Justice notice of the issuance of the "Opinion on Handling Domestic Violence Cases in Accordance with Law"

Law Release (2015) No. 4

To the high courts, people's procuratorates, public secuity offices, departments of justice, PLA military courts and military procuratorates of all provinces, autonomous reasons and directly governed municipalites, and and Construction Corps branch courts established by the Xinjiang Uighur Autonomous Region's High Court, and Xinjiang Construction Corps procuratorates, public security departments and departments of justice:

The "Supreme People's Court,The Supreme People's Procuratorate, The Ministry of Public Security, and Ministry of Justice Opinion on Handling Criminal Cases of Domestic Violence in Accordance with Law" is hereby issued to you so as to actively prevent and effectively punish domestic violence crimes, increasing the criminal justice protections for victims of domestic violence, please implement conscientiously.

The Supreme People's Court, The Supreme People's Procuratorate
Ministry of Public Security , Ministry of Justice

3/2/2015

The Supreme People's Court,The Supreme People's Procuratorate, The Ministry of Public Security, and Ministry of Justice.

Opinion on Handling Criminal Cases of Domestic Violence in Accordance with Law

The occurrence of violence between family members, as well crimes of domestic violence between persons with guardianship, support, foster care, cohabitation or similar relationships, seriously harms citizens' personal rights and undermines family relations, influencing social harmony and stability. People's courts, people's procuratorates, public security organs and judicial-administrative organs shall strictly perform their duties and fully utilize the law to actively prevent and effectively punish all types of domestic violence crime, truly ensuring human rights, and protecting social order. Therefore, this Opinion is formulated on the basis of laws such as the Criminal Law, the Criminal Procedure Law, the Marriage Law, the Law on Protection of Minors, the Law on Protection of the Rights and Interests of the Elderly, the Law on the Rights and Interests of Women, combined with the judicial experience from practice.

I. Basic Principles

1. Timely and effective intervention in accordance with law. To counter domestic violence's characteristics of continuously repeating and progressively worsening, the people's courts, people's procuratorates, public security organs, and judicial-administrative organs shall, in accordance with law, adopt timely and effective measures for properly handling domestic violence that has already been discovered, they cannot turn their back to it, or make excuses among themselves, on the grounds that it has occurred between family members or is a family affair.

2. Protect victims' safety and privacy. The handling of cases of domestic violence crimes shall first protect the safety of the victims. Stop domestic violence and prevent its repeat occurrence by giving victims emergency aid and temporary placements; and also by adopting criminal compulsory measures against the aggressor, giving criminal punishments and declaring injunctions; eliminating the actual harm and latent danger of domestic violence. Confidentiality shall be preserved for personal privacy involved in the case, except as otherwise provided by law.

3. Respect victims' wishes. Handling of domestic violence crimes cases should be both conducted strictly in accordance with law, and also respect the victims' wishes. When filing a case, adopting criminal compulsory measures, making an indictment, giving criminal punishments, or giving commutation or parole, the victims opinions shall be fully heard, and a reasonable and rational disposition made within the range provided by law. In cases that the law provides may be mediated or settled, mediation or settlement shall be conducted on a foundation of both parties willingness.

4. Special protection is given to minors, the elderly, persons with disabilities, pregnant women, nursing women, and persons with serious illnesses. The handling of cases of domestic violence crimes shall, on the basis of law and case conditions, increase the force of legal protection for minors, the elderly, persons with disabilities, pregnant women, nursing women, and persons with serious illnesses by using measures such as complaints made on others' behalf and legal aid, truly safeguarding their lawful rights and interests.

II. Case acceptance

5. Actively report crimes, make accusations and give information. In accordance with paragraph 1 of Criminal Procedure Law article 108's provision that, "any unit or individual discovering criminal facts or criminal suspects has the right, and also a duty, to report the case or give information to the public security organs, people's procuratorates or people's courts," victims of domestic violence and their family, friends, neighbors, co-workers, as well as village (resident) committees, people's mediation committees, Women's Federations, Communist Youth Leagues, China disabled persons' federations, hospitals, schools, kindergardens and other units or organizations discovering domestic violence have the right and also have a duty to promptly report, make an accusation, or give information to the public security organs, people's procuratorates or people's courts.

The public security organs, people's procuratorates or people's courts shall preserve the confidentiality and protect the safety of persons making reports, accusations or informing who are unwilling to disclose their names and acts.

6. Quickly review, file and transfer the case. After public security organs, people's procuratorates or people's courts receiving reports, accusations or information, they shall immediately clarify the preliminary case facts through questioning, make a record, quickly conduct a review, and, in accordance with the Criminal Procedure Law provisions on case filing and on the basis of the scope of their jurisdiction, decide whether to file the case. Where the requirements for case filing are met, the case should be promptly filed. Where a crime might be constituted but not within one's own jurisdiction, it shall be transferred to the organ with principal jurisdiction for disposition; and the person reporting the case, the accuser or informant shall be notified; for cases not within one's jurisdiction that need to have emergency measures taken, emergency measures should be adopted, and it should then be transferred to the competent organ.

Where upon review domestic violence conduct does not constitute a crime, but is conduct in violation of security administration, the case shall be transferred to the public security organs to be handled in accordance with the Public Security Administrative Punishments Law; and at the same time imform the victim that they may apply to the people's mediation committee or raise a civil lawsuit in the people's courts, requesting that the aggressor bear civil responsibilities such as to stop the violations, formally apologize, or give compensation for losses.

7. Pay attention to discovering criminal cases. Public security organs handling personal administrative cases such as personal injury, abuse, abandonment; and people's courts hearing civil cases such as family, inheritance, and tort liability disputes; shall pay attention to discovering possible involvement of domestic violence crimes. Once leads about a criminal domestic violence case are discovered, the public security organs shall handle the case as a criminal case, or the people's courts shall transfer the case to the public security organs; where it is a private prosecution case, the public security organs and people's courts shall inform the victims to raise a private prosecution.

8. Respect the victims' right to choose procedures. In cases where the victims have evidence proving a minor domestic violence crime, the victims' right to choose a public or private prosecution shall be respected when filing and reviewing the case. If the victim requests that it be handled by public security,the public security organs shall file a case and investigate according to law. Where during the course of investigation the victim no longer requests that the public security organs handle it or requests that it be transformed into a private prosecution, the victims shall be informed to give a written application to the public security organs. Where upon review it is confirmed to be the victims' wishes, the public security organs shall withdraw the case in accordance with law. Where victims raise a private prosecution in the people's court regarding this type of case, the people's court shall accept it in accordance with law.

9. Use complaints on behalf of others to fully safeguard victims' right to prosecute. In private prosecutions of domestic violence crimes where the victims are unable to make a complaint or cannot personally make the complaint, their legally-designated representative or close relatives may make a complaint or complain on their behalf. Where victims have no capacity or limited capacity, and their legally-designated representative and close relatives have not made a complaint, the people's procuratorate may make a complaint. For crimes that are only handled upon a complaint, such as humiliation or violent interference with freedom of marriage, where victims are unable to make a complaint due to compulsion or intimidation, the people's procuratorate may also make a complaint. People's courts shall lawfully accept complaints or complaints made on others' behalf.

10. Truly increase supervision of case filing. People's procuratorates should truly increase supervision of case filing in cases of domestic violence crimes, and where it is discovered that public security organs should have filed a case but did not, or where an objection is raised to the people's procuratorate about public security organs not filing a case by a victim, his legally-designated representative, his close relatives, a concerned unit or organization, the people's procuratorate shall request that the public security organs explain their reasons for not filing the case. Where the people's procuratorate feels that the public security organ's reason for not filing the case is not sustainable, it shall notify the public security organ to file the case, and after receiving the notice, the public security organ will file the case; where the reason is found to be sustainable, they shall inform the victim, his legally-designated representative, his close relatives, concerned unit or organization that raised the objection of that reason.

11. Promptly and comprehensively collect evidence. When public security organs handle domestic violence cases, they should fully and comprehensively gather and secure evidence; in addition to collecting physical evidence at the scene, victim statements, and witness testimony, they shall also pay attention to promptly gathering evidence relating to the domestic violence, such as records of handling, medical histories, pictures and videos, from units and organizations such as village (resident) committees, people's mediation committees, Women's Federations, Communist Youth Leagues, federations for disabled persons, hospitals, schools, kindergartens.

12. Give proper treatment and placements to victims. People's courts, people's procuratorates, public security organs and other units and organizations with duties to protect citizens' personal safety shall immediately assist and contact medical establishments for treatment of victims who have received serious injuries and need emergency care as a result of domestic violence. And they shall notify and assist relevant departments in making a placement where victims or concerned minors are facing a serious threat of domestic violence, or are in a dangerous state of being unattended to, and require a temporary placement.

13. Employ compulsory measures in accordance with law. People's courts, people's procuratorates, public security organs may detain or arrest criminal suspects or defendants committing domestic violence who meet the requirements for detention or arrest. Where detention or arrest is not employed, they shall use methods such as visiting or calling to contact the victims, their legally-designated representatives or close relatives to learn about their safety situation. Where a criminal suspect or defendant commits domestic violence again, necessary compulsory measures shall be lawfully adopted on the basis of the circumstances.

Where people's courts, people's procuratorates, or public security organs decide to release on guarantee a criminal suspect or defendant who has committed domestic violence,in order to protect the safety of the victim, their children and specified relatives, they may follow paragraph 2 of Criminal Procedure Law article 69 to give an order to the criminal suspect or defendant stating that they must not commit domestic violence again; must not disrupt the victims' lives, work or study; and must not engage in drinking, gambling or similar activities. And where the victim applies and there is a need, give an order that [the offender] must not come near the victim and their minor children.

14. Strengthen guidance of evidence presentation in private prosecutions. Domestic violence tends to occur over a long period of time, with evidence being difficult to preserve, and have vulnerable victims with limited capacity to present evidence, making it difficult to determine facts. Some of the characteristics are even more prominent in private prosecution cases. Therefore, when people's courts hear private prosecutions of domestic violence, where it is difficult to reach the evidence requirements provided by law because a party has insufficient ability to present evidence or other reasons, they shall promptly carry out guidance on presentation of evidence for the party, informing them of the evidence the need to gather and methods of gathering evidence. Where a party cannot obtain evidence due to objective reasons and applies to the people's court to collect it, the people's court shall earnestly review and where a true need is found, shall collect it.

15. Increase the extent of legal aid to victims. Three days from when the people's procuratorate receives case materials transferred to be reviewed for prosecution, and three days from when people's courts accept a case, they shall inform the victim and their legally-designated representative or close family that they have the right to retain an agent ad litem, and that if they have financial difficulties they may apply to a legal aid institution for legal aid. where persons such as minors, the elderly, persons with severe illnesses and and persons with disabilities have not retained an agent ad litem due to financial difficulties, the people's procuratorate or people's court shall help them apply for legal aid.

Legal aid institutions shall provide qualified victims with legal aid in accordance to law, and appoint lawyers familiar with domestic violence to handle the cases.

III. Conviction and Punishment

16. Correctly convict and punish in accordance with law. Domestic violence crimes that violate citizen's rights in their person, such as intentional homicide, intentional harm, rape, indecency to children, unlawful detention, humiliation, violent interference in marital freedom, abuse, and abandonment, shall be strictly judged in accordance with the relevant provisions of the Criminal Law, on the basis of the facts of the crime, the nature of the crime, the circumstance and the degree of harm to society. Where the same conduct perpetrates several crimes, conviction and punishment is in accord with the provisions for the heavier punishment.

17. Punish crimes of abuse in accordance with law. Use of beatings, cold and hunger, forced overworking, restrictions of personal freedom, intimidation, humiliation, berating and other means of physically and mentally torturing and tormenting family members, are commonly occurring forms of domestic violence by abuse. Based on judicial practice, circumstances such as abuse continuing over a long time or occurring many times; the means of abuse being cruel; the abuse causing slight injuries or serious illness in the victim; and severe abuse of minors, the elderly, persons with disabilities, pregnant women, nursing women or persons with serious illness; are all 'heinous circumstances' as provided for by paragraph 1 of Criminal Law article 260, and shall be convicted and punished as the crime of abuse.

To correctly distinguish crimes of abuse which cause serious injury or death from the crimes of intentional harm or homicide causing serious injury or death, a comprehensive judgment should be made on the basis of an the defendants' subjective intent, the manner and methods by which they committed the violence, and whether they immediately or directly caused the victims' death. Where the defendant does not subjectively have the intent to encroach upon the health of the victim or take the life of the victim, but rather seeks the victims' physical or psychological suffering, and commits acts of abuse against them over a long period or on several occasions, gradually causing physical harm to the victim, negligently causing the victim to suffer serious injury or death; or where the victim harms or kills themselves because they are unable to stand the abuse, causing serious injury or death; it is within the scope of "causing serious harm or death to the victim" as provided for in paragraph 2 of Criminal Law article 260, and shall be convicted and punished as the crime of abuse. Where even though domestic violence committed by the defendant shows the traits of being routine, sustained or repeated, they subjectively possessed the intent to seriously injure or kill the victim, carried a weapon, used cruel means, were fiercely violent, and directly or immediately caused the victim's serious injury or death; it shall be convicted and punished as the crimes of intentional harm or intentional homicide.

Punish the crime of abandonment in accordance with law. Having a duty and ability to give support, but refusing to support a family member who is a child, elderly, seriously ill or otherwise unable to live independently is seriously harmful domestic violence by abandonment. In accordance with judicial practice, the following types of cases are subject to the provisions concerning "abandonment under malicious circumstances" in Article 261 of the Criminal Code, and punishment shall be fixed in accordance with provisions related to the crime of abandonment: Cases where the victim has been subject to long-term neglect, without provision of resources necessary to live; cases where the victim has been driven or coerced to leave the home, resulting in the victim becoming homeless or destitute; abandonment of individuals with severe diseases that make it impossible for them to properly care for themselves; and other cases of abandonment that result in the victim experiencing severe physical harm or other serious consequences.

Accurately distinguishing between the crimes abandonment of and intentional murder should be on the basis of a comprehensive evaluation of the defendant's subjective intent, the time and place where the acts occurred, whether the death of the victim was caused; as well the degree of the victim can be said to have relied on the defendant. Further, in cases where the defendant's intent is to give up their responsibility to care for or protect his or her dependent(s), rather than actively hope or arrange for their death, are generally defined as the crime of abandonment and punished accordingly; examples of this may include instances where defendants abandon individuals without the capacity to care for themselves in welfare agencies, hospitals, local police stations, other government offices, or public spaces with many people such as transportation stations, in the hope that other individuals will come to the aid of the abandoned individual. In contrast, in cases where the defendant actively hopes or arranges for the death of the victim, the defendant should be charged with the crime of murder and punished accordingly, such as instances where the defendant(s) neglect their duty to provide for or protect his or her dependent(s) to the extent that the victim dies from lack of care, or the victim is abandoned in an area that is naturally dangerous or where there are few other individuals who can come to the victim's aid.

18. Truly implement the criminal policy of blending leniency with severity. Where domestic violence constitutes a crime, the principles of legality and punishment corresponding to the crime shall be followed to conduct a comprehensive consideration of factors such as preserving family stability and respecting victims' wishes, to make a separate treatment combining leniency with severity. On the basis of judicial practice, discretion may be used to issue harsher penalties for offenders in cases where the means of domestic violence are especially cruel or the actions result in severe consequences; where the aggressor maliciously performs acts of domestic violence for financial or other base motives; where the aggressor has conducted long-term or multiple acts of domestic violence due to drinking, taking drugs, gambling, or other bad habits; where the aggressor has previously been subject to criminal or administrative punishment for acts of domestic violence; or in any other cases where there are heinous circumstances. Where the circumstances of the domestic violence crimes are relatively light, or the defendant truly demonstrates remorse, obtains forgiveness from the victim, or a lighter sentence would benefit dependents, judicial actors may use their discretion to issue a lighter sentence; where the circumstances are so slight that it is not necessary to have a criminal judgment, the people's procuratorate may decide not to prosecute or the people's courts may choose to waive punishment.

Where the circumstances of domestic violence appear minor, the harm is not large, and a crime is not constituted, the case shall be withdrawn, not prosecuted, or a not guilty verdict announced.

In order to strengthen measures to educate and punish perpetrators of violence, the people's courts, people's procuratorates, and public security organs shall thoroughly admonish perpetrators and order them to pledge not to commit further acts of domestic violence, make apologies to their victims, or compensate them for any damages.

19. Correctly identify justifiable defense against domestic violence. So long as it meets the requirements of the criminal law, actions taken to stop domestic violence that is being currently committed so as to avoid injury to the rights of oneself or another in their person, shall be found to be justifiable defense and not bear criminal responsibility. Where defensive acts cause serious injury or death to the aggressor, and clearly go beyond the necessary degree , it is unjustified defense and criminal responsibility shall be borne, but punishment shall be reduced or excused.

Determination of whether defensive acts "clearly goes beyond the necessary degree" shall use a standard of what was necessary for the defender to avoid suffering unlawful harm from domestic violence, and be based on the actual severity of domestic violence the aggressor was then exhibiting, the cruelty of the methods, the environment and degree of danger that the defender faced, the means of stopping violence employed, the extent to which the aggressor was seriously injured, as well as severity of past domestic violence.

20. Fully consider self-defense factors and fault liability in the case. Where after suffering domestic violence for a long time, a defendant commits intentional harm or homicide against the aggressor in a state of rage and fear so as to prevent suffering domestic violence again or to rid themselves of domestic violence, and the defendants' conduct has self-defense factors, or the aggressor has clear fault in the incident from which the case arises; discretion may be taken to give a lenient punishment. Where one intentionally kills an aggressor because they have sustained serious domestic violence and suffered serious physical and mental harms; or where one intentionally kills an agressor because they are unable to endure long-term domestic violence and the circumstances of the crime are not particularly heinous and the means used not especially cruel, it may be found to be intentional homicide where the "circumstances are minor" as provided for in Criminal Law article 232. Where during the service of a sentence there are clear expressions of repentance and reformation, the scope of the sentence may be reduced or the time before allowing commutation shortened, on the basis of family circumstance; where the requirements for parole are met, they shall be given parole. Where the close family of a slain aggressor express forgiveness, it shall be given full consideration during sentencing, commutation and parole.

IV. Other Measures

21. Fully utilize prohibition orders. Where domestic violence constitutes a crime and criminals have been given controlled release or a suspended sentence, people's courts may, in order to protect the physical safety of victims, their children and specified family members, simultaneously prohibit the criminal from committing further domestic violence; prohibit them from disturbing the victims' life, work or studies; or prohibit them from engaging in drinking, gambling or other such activities in accordance with paragraph 2 of Criminal Law article 38 and paragraph 2 of article 72; and, upon application and when necessary, may prohibit them from approaching the victim and their minor children.

22. Informing of applications to revoke guardianship credentials. Where necessary, people's courts, people's procuratorates, and public security organs may inform a ward whose guardian has committed domestic violence seriously infringing his lawful rights and interests, or other persons or units with guardianship qualifications, to submit an application to the people's courts requesting revocation of guardianship qualifications, and the separate designation of a guardian.

23. Fully utilize personal safety protection measures. To protect the personal safety of victims and avoid their suffering further harm from domestic violence, people's courts may, on the basis of an application, follow the relevant provisions of laws such as the Civil Procedure Law to make a ruling prohibiting them from committing further domestic violence, prohibiting them from approaching the victims, having them move out of the victims' residence, and other such content. Where the aggressor exhibits conduct violating the ruling, such as threatening, intimidating, hitting, injuring or killing the victims, or refusing to leave the victims' residence without their permission, the people's courts may give fines or detention based on the severity of the circumstances, where a crime is constituted, criminal responsibility shall be pursued in accordance with law.

24. Fully utilize community corrections measures. Community Corrections institutions shall conduct corrections on domestic violence for criminals who committed domestic violence that constituted a crime and were given controlled release, a suspended sentence, parole or are temporarily serving their sentence outside of prison; and formulate supervision, education, and assistance measures to correct criminals violent mentality and bad behaviors.

25. Strengthen publicity and education against domestic violence. People's courts, people's procuratorates, public security organs and judicial-administrative organs shall, combining that department's duties, develop publicity and educational activities against domestic violence using multiple models such as using cases to explain law, community law discussion, and targeted legal education; effectively preventing domestic violence, promoting equality, tranquility and civility in family relations, and maintaining social harmony and stability.

 

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