The first part: A brief interpretation of the highlights of the anti-domestic violence law.
Highlight 1: The public security organ can give a written warning for minor domestic violence.
Article 19 If domestic violence does not constitute a violation of public security administration or a crime, the public security organ may warn the offender in writing not to commit domestic violence again, and send a copy of the warning to the grassroots mass autonomous organizations and women's federations at the victim's domicile or habitual residence.
Interpretation: Warning refers to the administrative guidance given by public security organs to urge the perpetrators to correct minor domestic violence that violates laws and regulations, or domestic violence that is not suitable for direct administrative punishment. The early warning system of domestic violence implemented by public security organs in Jiangsu and other provinces can provide practical reference for national legislation. Although administrative guidance belongs to the soft law category, it plays an important role in preventing and punishing domestic violence. For example, if the perpetrator commits domestic violence after being warned, it can be used as a discretionary aggravating circumstance for the people's court to handle the case when necessary.
Highlight 2: Reasonable distribution of burden of proof, medical records can protect rights.
Article 22 stipulates that the people's court shall reasonably allocate the burden of proof when trying civil cases involving domestic violence. The people's court shall investigate and collect evidence that the victim cannot collect by himself due to objective reasons.
Interpretation: For the sake of maintaining family reputation and family integrity, family members are often unwilling to stand up and correct their mistakes and pay little attention to protecting evidence materials. The court should give full play to the judicial initiative and collect, collect and preserve relevant evidence according to its authority. Among them, medical records can be used as evidence of violence and its severity, which is the basis for victims to safeguard their rights and interests according to law in the future.
Highlight 3: The victim can apply to the court for a family "prohibition order"
Article 27 stipulates that during the trial of civil cases such as divorce, support, support, adoption and inheritance by the people's court, victims of domestic violence may apply to the people's court for a ruling on personal safety protection. Including: prohibiting the perpetrator from hurting the victim again; Ordering criminals to move out of the victim's residence; Prohibit the offender from approaching the victim; The offender is prohibited from disposing of the victim's house and other real estate owned by the victim.
Interpretation: The primary goal of the personal safety protection ruling is to protect the victim, not to punish the offender. The ruling on personal safety protection can prevent domestic violence from turning into a vicious criminal case, and change the punishment afterwards into protection beforehand. At the same time, it should be considered that the economic control of the family property by the actor is likely to cause hidden dangers to the personal safety of the victim. If the victim is required to apply to the people's court for property preservation on family property issues, it is neither economical nor cumbersome, so the scope of protection should be extended to the property field related to the personal safety of the victim.
Highlight 4: Guardianship violence will be disqualified.
Article 25 stipulates that if a guardian commits domestic violence and seriously infringes on the legitimate rights and interests of the ward, the people's court may revoke his guardianship qualification and appoint another guardian upon the application of the relevant personnel or units. A guardian who is legally obligated to support, support and raise but whose guardianship qualification has been revoked shall continue to bear the corresponding maintenance, support and support expenses.
Interpretation: People's governments at all levels, social organizations, social organizations and grass-roots units should provide family education and guidance to parents or other guardians of minors to prevent domestic violence against minors.
If the guardian commits domestic violence against the ward (if the parents have minor children), he shall bear relevant civil liabilities. If the circumstances are serious, he may suspend or revoke his guardianship qualification according to law. In this regard, China's "General Principles of Civil Law" and "Law on the Protection of Minors" have stipulated the principle of revoking the qualification of guardians, and the "Law on Domestic Violence" has made further detailed provisions on the basis of existing laws.
The second part: A brief interpretation of the highlights of the anti-domestic violence law.
Highlight 1: Domestic violence is defined by law for the first time.
For a long time, domestic violence is not a legal term, and it is not explicitly prohibited by law, which is one of the reasons for the long-standing existence of domestic violence, and the definition of domestic violence is the legal basis for clarifying the object of this law. Article 2 of the Anti-Domestic Violence Law: Domestic violence as mentioned in this law refers to physical and mental violations committed by family members by means of beating, binding, mutilation, restriction of personal freedom, frequent abuse and intimidation. Judging from the type of behavior, in addition to physical violence, it obviously includes mental violence. In practice, sexual violence between family members exists objectively, and there have been many cases. Although the definition does not explicitly list sexual violence, the expression of "equal aggression" gives judges discretion in specific circumstances and can include sexual violence in "equal" behavior types.
Highlight 2: * * There are regulations on the violence of cohabitation.
The Anti-Domestic Violence Law is not a marriage and family law, but a social protection law. Article 37 of the supplementary provisions of this law stipulates that acts of violence committed by people other than family members living together shall be implemented with reference to the provisions of this law. In the annex, the applicable clauses have been added. Violence between people living in the same family refers to the anti-domestic violence law, which expands the scope of application of the subject of domestic violence. Violence between people living in the same family, such as cohabitation, guardianship and family employment, can be regulated in accordance with the anti-domestic violence law.
Highlight 3: Five principles for preventing and stopping domestic violence have been determined.
The Anti-Domestic Violence Law defines five principles for preventing and stopping domestic violence in the general provisions, namely: the principle of zero tolerance for domestic violence; * * * The principle of joint responsibility; The principle of putting prevention first and combining education, correction and punishment; The principle of respecting the true will of the victim and protecting the privacy of the parties; Principle of special protection for special groups.
Highlight 4: One-stop guarantee from prevention to rescue
In the chapter dealing with domestic violence, the Anti-Domestic Violence Law provides more adequate relief channels for victims of domestic violence, such as calling for help, applying for asylum, applying for personal safety protection orders, and pursuing legal responsibilities, as well as more favorable measures to deal with domestic violence, such as mediation of family disputes, compulsory reporting obligations, and public security early warning system. Among them, the compulsory reporting obligation is one of the highlights of this law. Schools, kindergartens and other institutions and their staff have the obligation to report to the public security organs if they find that people without or with limited capacity for civil conduct have suffered or are suspected of suffering from domestic violence. It embodies the principle of special protection. The early warning system of public security is another highlight of this law. That is to say, if the circumstances of domestic violence are minor, and public security management punishment is not given according to law, the public security organ shall criticize and educate the offender or give him a warning. The public security early warning system provides a sharp weapon for the police to intervene in domestic violence in time. At the same time, the evidential function of the warning letter is clarified, that is, when the people's court hears a case involving domestic violence, it can determine the fact of domestic violence according to the police record, warning letter, injury appraisal opinion and other evidence of the public security organ, and make a personal safety protection order accordingly, or decide to grant a divorce and pay compensation to the victim.
For parents and other guardians who commit domestic violence and seriously harm minors and disabled people, the law also specifically stipulates the system of revoking guardians.
Highlight 5: Personal safety protection order system
The anti-domestic violence law established the personal safety protection order system for the first time, and the punishment after engaging in it became prevention beforehand. According to the anti-domestic violence law, if a party suffers from domestic violence or is in real danger of domestic violence, he can apply to the court for a personal safety protection order. The protection order includes measures such as prohibiting the respondent from committing domestic violence, prohibiting the respondent from harassing, stalking and contacting, and ordering the respondent to move out of the applicant's residence. The anti-domestic violence law specifically proposes that the relevant close relatives of the applicant are also included in the protection scope of the personal safety protection order. The application for personal safety protection order is no longer dependent on other lawsuits. If the victim doesn't want a divorce, alimony or alimony, that is, he doesn't want to be beaten again, he can apply for a personal safety protection order separately. As long as there is a danger of abuse, the parties can apply. The court "should" accept the case, not "can" accept it, which provides a hard way to protect the victim. The respondent who violates the personal safety protection order may be fined up to 1000 yuan and detained up to 15 days. Those who constitute a crime will be investigated for criminal responsibility according to law.
The case "guaranteed" that his wife was killed because of domestic violence.
Criminal Judgment In May, the Zhangye Intermediate People's Court made a first-instance judgment on Yang Zuofeng's crime of intentional injury. The defendant, Yang Zuofeng, had a serious feudal ideology of preferring sons to daughters, and committed domestic violence against the victim Liu for a long time, and injured the victim to death in this case. Its criminal means are bad and the consequences are serious, so it should be severely punished according to law. Accordingly, the court ruled as follows: the defendant Yang Zuofeng committed the crime of intentional injury, sentenced to life imprisonment and deprived of political rights for life.
Neighbor Zhao Mouyi said that Liu lived a poor life. Liu's husband Yang Zuofeng always looks down on Liu and often beats her, especially when her husband drinks. Zhao Mouyi often sees Liu being beaten black and blue by her husband. "Over the years, Yang Zuofeng has frequently committed domestic violence and hurt Liu many times because he suspects that Liu's style is not good and he has no son." The indictment of the public prosecution agency recorded the reasons why Yang Zuofeng suffered domestic violence many times. Xiao Yang, Liu's adopted son, said: "Since I was sensible, my father has often beaten my mother and played countless times. Once my mother ran away, because my father beat my mother five times a month, and my mother ran away for fear of being beaten again. After a month, I heard from my uncle that my father had written a letter of guarantee and would never beat my mother again. Who knows that he killed her this time. "
The guarantee written by JASON ZHANG Zuo Feng in public failed to keep her safe, let alone save her life; The phrase "promise not to beat Liu again in the future, or get divorced" became a lie.
There is no evidence in the case, and it is difficult for the court to identify it as domestic violence.
One day, a woman came to Gansu Xinyang Law Firm and found a lawyer, Lu Xiufang, saying that she wanted to file a divorce lawsuit. Before the lawyer asked, the woman began to cry and kept shouting, "I don't want to be beaten, I really can't stand it!" "With years of experience, Lu Xiufang initially judged that this was a case of domestic violence.
The newcomer is Zhang Li (a pseudonym). She said that she and her husband often had conflicts over trivial matters, and then her husband began to beat her. 20 12, the husband not only beat her, but also pulled out her teeth with pliers; On July 20 13, Zhang Li's husband beat her again in Xi and restricted her personal freedom. In the end, Zhang Li escaped from her residence while her husband was not paying attention and returned to her hometown Ningxian by begging, but her parents not only didn't understand her, but blamed her. At that time, Zhang Li was so desperate that he was forced to take poison and was rescued by passers-by.
Soon, the court accepted the divorce case, but what lawyer Lu He didn't expect was that her husband didn't appear in court to defend. At that time, Zhang Li was the only one in the court. Lawyer Lu is puzzled: not appearing in court may directly affect the determination of domestic violence in the judgment, because there is only personal statement in court, and there is no evidence to prove that she was abused.
In 65438+February, the court of Ningxian County, Qingyang City ruled that the plaintiff and the defendant had been separated for more than two years, so it should be considered that the relationship between the husband and wife of the original defendant had completely broken down, so the plaintiff and the defendant's claim for divorce should be supported. The married children of the original defendant were raised by the defendant and his relatives in recent years, and should continue to be raised by the defendant. The plaintiff should pay the defendant's child support. The plaintiff's request for the division of husband and wife's property and the defendant's request for compensation for mental damages were not supported because no evidence was provided and there was no factual basis. The judgment is as follows: the plaintiff and the defendant are allowed to divorce; The child is raised by the defendant, and the plaintiff has the right to visit the child. When visiting, the defendant has the obligation to assist in visiting; The plaintiff paid the defendant a maintenance fee of 23,000 yuan; Reject the plaintiff's other claims. "