Title: Opinion on Several Issues in Handling Guardians' Violations of Minors' Rights and Interests in Accordance with Law
Promulgating Entities: Supreme People's Court, Supreme People's Procuratorate, Ministry of public security, the Ministry of Civil Affairs
Promulgation Date: 2014-12-18
Source of text: http://www.mca.gov.cn/article/zwgk/fvfg/shsw/201412/20141200746952.shtml
Opinion on Several Issues in Handling Guardians' Violations of Minors' Rights and Interests in Accordance with Law
Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Civil Affairs' Opinion on Several Issues in Handling Guardians' Violations of the Rights and Interests of Minors in Accordance with Law
Law Release (2014) No. 24
To the high courts, people's procuratorates, public secuity offices, civil affairs departments, 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 Xinjian Construction Corps procuratorates, public security departments and civil affairs departments:
This "Opinion on Several Issues in Handling Guardians' Infringements of Minors' Rights and Interests in Accordance with Law" is hereby issued to you, to take effect on January 1, 2015; please earnestly comply with and implement it.
The Supreme People's Court, The Supreme People's Procuratorate
Ministry of public security, Ministry of Civil Affairs
December 18, 2014
The following opinion on work related to handling guardians' conduct violating the rights of minors (hereinafter "violations by guardians" is hereby formulated on the basis of the General Rules of Civil Law, the Civil Procedure Law, the Law on Protection of Minors and other relevant laws; so as to protect minors' lawful rights and interests, strengthen administrative and judical protection efforts for minors, and ensure that minors receive proper guardianship and care.
I. General Provisions
1. "Violations by guardians" as used in this Opinion refers to parents or other guardians' (hereinafter "guardians") sexual abuse, sale, abandoment, abuse, or violent harm of minors; acts instigating or using minors to commit unlaful or criminal conduct; coercing, enticing, or using minors to beg; and also conduct failing to perform guardianship duties that seriously endanger minors' physical and mental health.
2. Handling of violations by guardians shall follow the principle of the best interests of the child, fully consider minors' physical and psychological characteristics and personal dignity, giving minors special priority protections.
3. All organizations and individuals have the right to discourage, stop or report violations by guardians.
Public security organs shall adopt measures to promptly stop violations by guardians discovered during their work or reported by units or individuals; and when the circumstances are urgent, take minors away from guardians.
Departments of civil affairs shall establish Children's aid and protection institutions (including relief management stations and centers for minors' aid and protection); undertake temporary guardianship responsibility of minors violated by guardians who enter the institutions; and when necessary, apply to the people's courts to revoke guardianship qualifications.
People's courts shall accept and make judgments in cases applying for personal safety protection rulings and revocation of guardianship qualifications.
People's procuratorates lawfully carry out legal supervision of public security organs and people's courts handling of violations by guardians.
Where people's courts, people's procuratorates, or public security organs have established a special working organization for handling juvenile cases, they shall give precedence to the specialized organization for handling cases of violations by guardians.
4. People's courts, people's procuratorates, public security organs and civil affairs departments shall fully perform their duties, strengthening guidance and training to increase the capacity and level of protections for minors; increase communication and coordination, establish mechanisms for sharing information and bringing about effective links between administrative and judicial protections for minors.
5. People's courts, people's procuratorates, public security organs and civil affairs departments shall increase communication and coordination with groups such as Working Committees on Children and Women, education departments, health and sanitation departments, communist youth leagues, womens' federations, working commitees on care of children, and village (or residential) committees at minor's domiciles; actively guiding, encouraging, and supporting social forces such as legal services establishments, social services establishments, public interest charities, and volunteers, working together to protect children who have been violated by guardians.
II. Reports and Dispostion
6. Where units such as schools, hospitals, village (residents) committees, social work establishments, or their staffs, discover that minors have suffered violations by guardians, they shall promptly report the case to police, or raise a report.
Where other units, their staffs, or individuals discover that minors have suffered violations by guardians, they shall also promptly report the case to police, or raise a report.
7. After receiving a report involving violations by guardians, public security organs shall immediately dispatch police, stop violations that are currently occurring, and quickly conduct an investigation. Where requirements for filing a criminal case are met, they shall immediately file the case for investigation.
8. Public security organs investigating cases of violations by guardians shall follow statutory procedures to promptly and comprehensively collect and secure evidence, ensuring case quality.
Questioning of minors shall consider the physical and psychological characteristics of the minor, and employ gentle methods so as to prevent causing further harm.
Where minors have other guardians, the other guardian shall be notified to appear. Where the other guardian cannot be so notified or is not able to appear, notification to appear may be given to the minors' other close relatives, or representatives from the minors' school, village (residence) committee, or a child welfare organization, and also specialized social workers.
9. Where the guardian's violations constitute a security management violation, public security organs shall give a public security administrative sanction in accordance with law, but where the circumstances are especially minor a public security administrative sanction is not given and criticism or education shall be given instead, and a report made to the local village (resident) committee. Where a crime is constituted, criminal responsibility is pursued in accordance with law.
10. When a guardian suspected of having a mental disorder has already done something to endanger the safety of a minor, or there is a risk that he will endanger the safety of a minor; his close relatives, workplace or local public security organs shall immediately adopt measures to stop him, and deliver him to a medical establishment for mental disorder diagnosis.
11. Where police dispatched by public security organs discover minors with serious injuries, facing serious threats to personal safety or in a dangerous state such as being unattended, they shall take them away from guardians committing violations, and safely escort them to other guardians, close relatives, the village (resident) committee, or children's aid and protection institutions, and complete written formalities for their transfer. Where minors are able to express themselves, their opinion on where to be escorted shall be solicited.
Units and persons responsible for receiving minors (hereinafter "temporary caretakers") shall give minors temporary emergency shelter and short-term daily care and protect minor's personal safety, they must not violate minors' lawful rights and interests.
Public security organs shall inform temporary caretakers in writing that they have the right in accordance with law to apply to a people's court for a personal safety protection ruling or revocation of guardianship qualifications.
12. For minors who have suffered serious physical injuries and need medical treatment, the public security organs shall first take them for medical assistance and simultaneously notify other relatives with guardianship credentials to give care, or inform local child aid and protection institutions to begin subsequent aid work.
Guardians shall bear medical expenses in accordance with law. Where those such as other relatives or children's aid and protection institutions pay medical costs, they have the right to seek compensation from the guardians.
13. Where public security organs escort minors who have suffered violations by guardians to children's aid and protection institutions, they shall provide an explanation of the case investigative finding within five business days.
14. Where violations by guardians might constitute the crime of abuse, public security organs shall inform the minor that they have the right to make a complaint and their close relatives that they have the right make a complaint on their behalf; and also report to the local people's procuratorate at the same level.
Where minors and their close relatives do not make a complaint, the people's procuratorate will prosecute.
III. Temporary Placements and Personal Safety Protection Rulings
15. Children's aid and protection institutions shall accept minors escorted by the public security organs who have suffered violations by guardians, and perform temporary guardianship responsibility.
Children's aid and protection institutions' performance of temporary guardianship responsibility does not usually exceed one year.
16. Children's aid and protection institutions may employ placement methods such as placement in household foster care, voluntary support, organizational care or entrusting to a government designated boarding school to perform temporary caretaking of minors; and may provide services such as psychological counseling and emotional support.
Where minors need to transfer schools or enter a new school to receive compulsory education as a result of temporary guardianship, the education administrative departments shall provide assurances.
17. Where minors' other guardians or immediate family members request to care for a minor, after their identity is confirmed by the public security organs or village (resident) committee, children's aid and protection institutions may transfer minors to their care and terminate temporary guardianship.
Where other relatives or friends with close relationships request to care for a minor, then upon the consent of the minor's father's or mother's unit or village (resident) committee, children's aid and protection institutions may transfer the minor to their care and terminate temporary guardianship.
Children's aid and protection institutions transferring minors to the temporary care of friends or family shall handle written formalities for the transfer and inform the temporary caretakers in writing that they have the right in accordance with law to apply to a people's court for a personal safety protection ruling or revocation of guardianship qualifications.
18. Children's aid and protection institutions may organize social work service institutions and other social forces to launch and develop educational counseling work such as gaurdianship guidance and psychological counseling for guardians; and carry out investigations and assessments of minors' basic family situation, guardianship, repentance of guardians, physical and pschological health of the minors, and the wishes of the minors.
Relevant units and individuals shall cooperate in the develop of investigation and assessment work.
19. Children's aid and protection institutions shall consult with public security organs, village (resident) committees, schools and minors' families, and form a consultative conclusion on the basis of circumstances such the explanation of case investigation, the investigation and assessment and the guardians' acceptance of education and counseling, and by soliciting the opinions of minors with the capacity to express themselves.
Where it is found through consultation that the threatening situation provided for in article 11 paragraph 1 of this Opinion has already dissipated, and that the guardian can correctly perform his guardianship responsibilities; a children's aid and protection institution shall promptly notify the guardian to retrieve the minor. The guardian shall retrieve the minor within three days and handle written transfer formalities. Before consultation reaches a conclusion, children's aid and protection institutions must not have the guardian retrieve the minor.
Where it is found through consultation that violations by guardians are of the type provided for in article 35 of this Opinion, children's aid and protection institutions shall apply to the people's court for a revocation of guardianship qualifications.
20. Where children's aid and protection institutions inform a guardian to retrieve a minor, they shall report the relevant circumstances to the minor's school, area police substation and village (resident) committee, and inform them of their duty to keep the content of the report confidential.
21. Where guardians retrieve minors, the children's aid and protection institutions shall direct the village (resident) committees to conduct follow-up visits on the guardians' guardianship and begin education and guidance work.
Children's aid and protection institutions may also organize social work organizations and other social forces to begin the work of the preceding paragraph.
22. Before proceedings, children's aid and protection institutions or other temporary caretakers may, as needed, apply for a personal safety protection ruling to the people's court at the place of the minor's residence, the guardian's residence, or the site of the violation.
Children's aid and protection institutions or other temporary caretakers may also apply for a personal safety protection ruling to the people's court during proceedings.
23. After a people's court receives an applicaiton for a personal safety protection ruling, it shall make a ruling in accordance with articles 100, 101 and 102 of the Civil Procedure Law. Where upon review it is found that there is a threat to the personal safety of a minor, it shall make a personal safety protection ruling.
After people's courts receive an application for a personal safety protection ruling before proceedings, they shall make a ruling within 48 hours. Where receiving an application for a personal safety protection ruling during proceedings and the circumstances are urgent, a ruling should also be made within 48 hours. The personal safety protection ruling shall take effect immediately.
24. Personal safety protection rulings may include one or more of the following contents:
(1) prohibit the subject of the application from violently harming or threatening the minor or their temporary caretakers;
(2) prohibit the subject of the application from following, harassing, or having contact with the minor or their temporary caretakers;
(3) order the subject of the application to move out of the minors' residence.
(4) other measures to protect the personal safety of the minor and their temporary caretakers.
25. Where the subject of the aplication refuses to comply with the personal safety protection ruling, and threatens the personal safety of the minors or their temporary caretakers, or disturbs the work order of children's aid and protection institutions; the minors, children's aid and protection institutions or other temporary caretakers have the right to report to the public security organs and have the public security organs handle it in accordance with law.
Where the subject of the application has other conduct refusing to comply with the personal safety protection ruling, the minors, children's aid and protection institutions or other temporary caretakers have the right to report to the people's courts, and the people's courts, on the basis of articles 111, 115 and 116 of the Civil Procedure Law and the severity of the circumstances, will give fines or detention; where a crimes is constituted, pursue criminal responsibility in accordance with law.
26. Where a party is unpersuaded by a personal safety protection ruling, it may apply for reconsideration one time. The enforcement of the ruling does not stop during the reconsideration period.
IV. Proceedings on an Application for Revocation of Guardianship Qualifications.
27. The units and individuals listed below (hereinafter "relevant units and individuals") have the right to apply to the people's court for revocation of guardianship qualifications:
(1) A minor's other guardians, paternal grandparents, maternal grandparents, older brothers or sisters, and other relatives or friends with close relationships;
(2) The village (resident) committee for the minors' area, the minors' father's or mother's unit;
(3) civil affairs departments and children's aid and protection institutions that they establish.
(4) Groups and units such as Communist Youth Leagues, Women's Federations, Committees for the Next Generation, and schools.
Applications for the revocation of guardianship qualifications are usually submitted by a unit or individual in the preceding paragraph that has responsibility for temporary care of the minor, but may also be submitted by other units or individuals in the preceding paragraph.
28. Where relevant units and individuals appy to the people's court for revocation of guardianship qualifications, they shall hand over relevant evidence.
Where there are investigative assessment reports with content such as on the minor's basic circumstances, issues with guardianship, repentence of the guardian, the guardians' acceptance of education and counseling, the minor's physical and psychological health, as wel as the minor's wishes; it shall be handed over together.
29. Where relevant units and individuals apply for presentment of relevent case evidentiary materials to the public security organs or people's procuratorate, the public security organ or people's procuratorate shall provide basic materials showing the case facts, or a written explanation.
30. In cases where as a result of violations by guardians, guardians have been publicly prosecuted, people's procuratorates shall inform the minor and his temporary caretakers that they have the right to apply for revocation of guardianship qualifications in accordance with law.
For violations by guardians that meet the conditions of article 35 of this Opinion and where a relevant unit or individual has not raised suit, the people's procuratorate shall make a written suggestion to the local civil affairs department or children's aid and protection institution to apply to the people's court for revocation of guardianship qualifications.
31. In case of applications for revocation of guardianship qualifications, jurisdiction is with the basic level people's court for the residence of the minor or guardian, or for the site of the violation.
People's courts hearing cases of revocation of guardianship qualifications do not receive litigation fees.
V. Hearing Cases of revocation of guardianship qualifications and post-trial placement
32. People's courts hearing of cases of revocation of guardianship qualifications, follow the special procedures of the Civil Procedure Law and are completed within one month. Where there are special circumstances requiring an extension, the court president of that court approves it.
33. People's courts shall fully review evidentiary materials such as the investigation and assessment report, and hear the opinions of the subject of the application, minors with ability to express themselves, and also those such as the village (resident) committees, schools and neighbors.
34. People's courts, on the basis of case needs, may hire appropriate societal persons to conduct social observation of the minors, and may introduce psychological counseling and evaluation mechanisms, and organize specialized personnel such as social workers and experts in child psychological problems to participate in the proceedings, so as to provide psychological counseling and evaluation services to the minors and subject of the application.
35. in any of the following circumstances regarding the subject of the application, the people's court may rule to revoke his/her guardianship qualifications:
(1) where there is sexual abuse, sale, abandoment, abuse, or violent harm of a minor, seriously injuring the minor's physical or psychological health;
(2) Where a minor was placed in a condition where nobody was overseeing or looking after them, causing the minor to face death or other serious threat of injury, and there was not change despite education;
(3) Where there is a refusal to perform the duties of guardianship for over six months, causing a minor to become displaced or have no stable life;
(4) Where guardianship duties cannot be correctly carried out because of drug use, gambling, long-term driking or other vices; or where guardianship duties cannot be performed because of serving a prison sentence, and they further refuse to entrust guardianship duties in whole or in part to another, causing a minor to be in difficult situations or a dangerous state.
(5) Where a minor was coerced, enticed or used for begging; and there is no rectification after being admonished and educated three or more times by the public security organs or children's aid and protection institutions, seriously impacting the minor's normal life and study;
(6) Where minors where instigated or used to commit unlawful or criminal conduct, and the circumstances were heinous;
(7) where there is other conduct seriously violating the lawful rights and interests of minors.
36. Where a minor has other guardians in a judgment to revoke guardianship qualifications, the other guardian shall take on guardianship responsibilities. The other guardian shall employ measures to avoid the minor suffering further violations.
Where there are no other guardians, the people's court, following the best interest of the child principle, will designate a guardian from among the persons and units provided for in article 16 paragraphs 2 and 4 of the General Rules of Civil Law. In designating individuals to take on guardianship responsibilities, their wishes, conduct, physical condition and economic capacity shall be comprehensively considered as well as the minor's emotional ties and, if the minor can express themself, their wishes.
Where there is no appropriate person or other unit to serve as guardian, the people's court shall designate a civil affairs department to serve as guardian, and the area child welfare organization will take them in and raise them.
37. Where there is a judgment to revoke guardianship qualifications, the people's court may visit the minor and his family as needed, and may also make judicial recommendations to the organizations such as the local civil affairs departments, area police substations, village (resident) committees, Communist Youth League, Women's Federation, the minor's school, and the parents units, to strengthen protections for the minor and supervisory guidance of the guardian.
38. Violators who have had guardianship qualifications revoked may apply in writing to a people's court to restore guardianship qualifications within 3 months to one year of the day on which their guardianship qualifications were revoked, and shall submit relevant evidence.
People's courts shall inform the violator, other guardians or designated guardians in writing of the content in the preceding paragraph.
39. People's courts hearings of cases of applications for restoration, are conducted following the procedures for modification of guardianship relationships.
People's courts shall solicit the opinions of the current guardian and of minors who can express themself, and may entrust the children's aid and protection institution for the applicant's residence, or other child protection organizations, to conduct an investigation of the applicant's wishes, show of repentance and reformation, guardianship ability, physicial state, work and living conditions, and other such factors, and form an investigation assessment report.
Where the applicant is currently serving a criminal sentence or in community corrections, the people's courts shall solicit the opinions of the enforcement organ or community corrections organization.
40. Where upon a trial, people's courts find that the applicant truly shows remorse and is suitable to be pronounced a guardian, they may make a judgment to restore guardianship qualifications, and the formerly appointed guardian's guardianship qualifications are terminated.
In any one of the following circumstances there must not ordinarily be a judgment to restore the applicant's guardianship qualifications:
(1) where there was sexual abuse or sale of minors;
(2) where there was abuse or abandonment of minors for over six months or several incidents of abandonment; causing serious injury or other serious consequences;
(3) where one was sentenced to a criminal punishment of five years or more imprisonment for violations by a guardians.
41. Within six months of the conclusion of proceedings for revocation of guardianship qualifications , minors and their current guardians may apply to the people's court for a personal safety protection ruling.
42. Fathers and mothers who have had their guardianship qualifications revoked shall continue to bear support costs for minors and fees caused by violations by the guardian. Where relevant units and individuals sue, people's court's should support it.
43. Civil affairs departments shall, based on relevant provisions, place eligible minors who suffer violations by their guardians within the scope of social assistance and relevant safeguards.
44. Where civil affairs departments serve as guardians, welfare organizations undertaking support duties for minors may put them up for adoption.
Putting minors up for adoption shall be done one year after a people's court makes a judgment to revoke guardianship qualifications. Where the violator has any of the circumstances provided for in article 40 paragraph 2 of this Opinion, there is no one year limit on being put up for adoption.