Since the 1995 Fourth World Conference on Women was held in Huairou, China, foreign terms such as gender, domestic violence and marital rape have deepened the understanding of social relations between men and women. Since then, China's 80-year marriage law has been revised on April 28th, 20001year, and the content of prohibiting domestic violence has been added in the general provisions chapter. Since then, domestic violence, which has always been regarded as a family matter, has had legal significance. However, there is no definition of domestic violence in China's laws, and according to Article 1 +0 of the Supreme People's Court's Interpretation of the Application of the Marriage Law of the People's Republic of China on February 27, 2006, the interpretation of domestic violence is narrow. Domestic violence "refers to the behavior of the perpetrator who causes certain harmful consequences to the body and spirit of his family members by beating, binding, maiming, forcibly depriving personal freedom or other means." "Persistent and frequent domestic violence" is interpreted as "abuse". Then, whether domestic violence includes marital rape, whether it is academic or judicial judgment, theory and precedent have failed to reach a consistent meaning. Therefore, although domestic violence has been introduced into China's laws, it may or has brought problems to judicial operation because it does not have the authority of legislation, and the public may be more confused. Of course, no matter how we evaluate it, we can't deny that the inclusion of domestic violence in legislation itself marks the progress of society, that is, the state attaches importance to and protects abused women, the elderly and children, including abused men.
The harm of domestic violence can completely destroy a family. According to a statistic, 33.9% families in China have different degrees of violence, and 3 1.7% people admit that their spouses have violence against them. Obviously, anti-domestic violence legislation is the need of society and the public. Therefore, how to stop domestic violence, enforce the law according to law and further improve the protection of the rights and interests of women, children and the elderly in marriage and family will be discussed in this paper from three aspects.
I. Definition of domestic violence
1. Before the legislation and interpretation of "domestic violence" in China law, the definition or concept of domestic violence was diversified, especially the discussion on the degree, scope and legal responsibility of domestic violence; However, the understanding of domestic violence is basically the same, and it is considered that as long as it hurts, abuses and destroys family members, it constitutes domestic violence, which is manifested in beating, binding, insulting personality, mutilating the body, restricting personal freedom and sexually abusing family members. Professor Wu Changzhen of China University of Political Science and Law explained that domestic violence refers to the violence committed by one family member to the other because of marriage and blood relationship. The perpetrators are often middle-aged and elderly men who dominate family life, while the victims are women, children and the elderly. Violence involves physical, sexual and mental aspects. It also includes marital violence and violence between family members.
2. Since the judicial interpretation of "domestic violence", the judge's innovative definition of domestic violence will become the basis of judgment and execution in China and the basis for judging "domestic violence" in law enforcement. This definition clearly and clearly shows the protection of victims in a vulnerable position. The definition of "domestic violence" in current legislation basically summarizes the scope, behavior, means, plot and physical and mental consequences of all perpetrators. Obviously, this definition excludes sexual violence that may occur between marriage, family or members. In short, the definition excludes marital rape; Secondly, the lack of explanation shows that domestic violence is an illegal crime and has no definition; Third, the Interpretation omits the relationship between domestic violence and its consequences. For example, is a slap in the face violent? We know that in a family, one party hurts the other the most. Abusers usually get pleasure and vent by slapping each other in the face, but a slap in the face may kill or hurt each other. Fourth, the boundary between domestic violence and abuse is unclear. According to the current criminal law, domestic violence is not a crime. Abuse is an act of abuse, which can be punished by the regulations on administrative penalties for public security. What's more, the perpetrator can be investigated for criminal responsibility for the crime of abuse. Therefore, it is obviously incorrect to take persistence and long-term as the defining characteristics. It is also unscientific. Therefore, whether domestic violence includes abuse and whether abuse includes domestic violence is still a topic of discussion between scholars and the public.
3. The concern of the United Nations about domestic violence is reflected in violence against women. 1979 and 1993, the United Nations adopted the Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on the Elimination of Violence against Women. From 65438 to 0986, an expert committee on domestic violence was held in the United Nations, and what is domestic violence was discussed extensively. The Committee of Experts pointed out in its report that domestic violence is not limited to physical violence and sexual violence; It also includes spiritual, emotional and economic aspects. Their definition of domestic violence is: "Domestic violence is manifested as physical abuse, which often occurs repeatedly and is related to mental torture, neglect of basic needs and sexual harassment; Atrocities generally occur in the closest family unit with dependent relationship, causing serious harm to the victims; Repeated atrocities should be distinguished from occasional atrocities; If accidental events are not immediately intervened, this behavior will often happen again and again and become more serious. " 1995 The report of the Fourth World Conference on Women defines violence against women as any gender-based violence in public or private life. Such violence has caused or may cause physical, mental or sexual harm and suffering to women, and it also includes threats to use these acts again, coercion or arbitrary deprivation of liberty. Therefore, violence against women includes but is not limited to: physical violence in the family, such as sexual violence, including sexual abuse of girls in the family, dowry-related violence, marital rape and female genital mutilation, and customs harmful to women. Non-spousal violence and exploitation-related violence usually occur in physical, mental and sexual injuries in the community, including rape, sexual abuse, sexual harassment and coercion, trafficking in women and forced prostitution in workplaces, educational institutions and other places, as well as physical, mental and sexual violence practiced or tolerated by the state, no matter where it occurs. Forced marriage and economic control within the family are also acts of violence against women.
From the definitions of domestic violence and violence against women in the above-mentioned report of the United Nations Committee and the report of the Fourth World Conference on Women, we can see the following points:
First, the main targets of violence (women, the elderly and children) or the targets of violence against women are the same;
Second, violence occurs in the field, but more often in the private field between marriage and family members.
Third, adopt conventions or declarations from a gender perspective to protect women in vulnerable positions.
Fourth, the definition of violence is very broad, including physical, mental, sexual and economic violence.
Fifth, the state has the responsibility to eliminate discrimination and violence against women through legislation.
According to Chinese and foreign data, before 2002, 170 countries adopted the convention on the recognition of ambiguity. There are three kinds of legislation and concerns about domestic violence in various countries. For example, Latin America and the Caribbean, Australia, Chile, Argentina, Mauritius and other countries 12, as well as China Taiwan Province Province and Hongkong, have successively enacted special or single anti-domestic violence laws. In April, 20001,Japan also formulated the Law on the Prevention of Spouse Violence and the Protection of Victims. For example, Norway, Kuwait and other countries have added crimes and penalties related to domestic violence to their criminal laws, while Iran, Colombia and other countries have directly formulated plans or legislation to prevent and eliminate domestic violence against women. Whether it is planning, special legislation or adding anti-domestic violence clauses in criminal law, the definition of domestic violence is generally recognized as: domestic violence is a violent act committed by one family member against the other, including physical and mental. However, sexual violence, cold violence, verbal violence, economic violence and so on. It varies according to the geographical and legislative background of different countries. It is also manifested in the different manifestations of domestic violence in the deep and surface. The deep layer is from male domination and sexual rights, and the surface layer is about violence. For example, Maria Hester, a British scholar, expressed domestic violence, which profoundly revealed the power relationship between men and women. A study found that domestic violence includes any violent or humiliating behavior (whether physical, sexual, psychological, emotional, verbal or economic) taken by a family member in order to control or manipulate the other party with whom he has had or has had a personal relationship. In addition, the British crime survey from the British scholar Abraham 1998 shows that 90% to 97% of the vast majority of violent acts are committed by men against women. Undoubtedly, figures and definitions reveal the traditional mode that men are superior to women, and the law protects men's rights. For example, as early as 1767, there was a law in Britain that a husband could beat his wife, provided that the stick was not thicker than his thumb.
In fact, not only in Britain in the west, but also in China in the east, it is natural for a husband to beat his wife, just like drinking water to eat. Because in private ownership society, women are traded goods, or people are attached to men, feminist researchers believe that the explanation of violence is a reflection of the inequality of power between men and women in social life and personal relations. Looking at the existing laws, the development of human rights theory also inspires the development of women's human rights. In modern society, it is an unchangeable fact that women step into society and participate in labor production. However, as unger, an American, said in Law in Modern Society, "As long as the class rank and role in society do not affect the basic freedom of individuals, and their bullying behavior does not involve the core part of individual existence, then the irrationality of hierarchy can still be kept within controllable limits."
Second, the empirical study of domestic violence
1. The investigation report of the All-China Women's Federation on the revision of the Marriage Law in 2000 shows that 5 1. 1% people think that the victims of domestic violence in China are wives. Only 6.9% people think that the victim of domestic violence is the husband. At present, 400,000 families in China have disintegrated, and a quarter of them are due to domestic violence. The emergence of domestic violence, in addition to historical, social and economic roots, can not be ignored is the continuous extension or resurgence of feudal thought that men are superior to women reflected in culture. It takes a long time to eliminate domestic violence or violence against women. Therefore, it is still very important to understand the harmfulness of domestic violence in order to attract the attention of legislators and the whole society. In this regard, we only conduct empirical research from the case analysis of domestic violence by husbands.
Case 1: The husband suspected his wife, committed violence, and pinched his wife's neck with both hands, resulting in her death.
Case 2: The husband hacked his wife to death with a knife because she didn't respect her mother.
Case 3: The husband dislikes his wife and seeks new love, and violently hurts his wife.
This article can't give examples, because in practice, marital violence often occurs. A husband can be violent to his wife for any reason. He can use fists, murder weapons, sulfuric acid, gasoline, burning, gas explosion and even extremely cruel means, because the contemporary family is still dominated by male power, and the relationship between men and women is still dominated by the husband's sexual power. The power structure of both sexes is still a traditional model.
2. There is no gender discrimination in the subject of domestic violence, including both spouses in marital violence and parents or children in domestic violence. Therefore, the subject of violence can be male or female. The subject of violence can be either female or male. The main body of legal protection of domestic violence is only the perpetrator and the victim.
3. The harmfulness of domestic violence shows the importance of domestic violence legislation. It is of great significance to enact special legislation on domestic violence or add anti-domestic violence clauses in relevant laws to protect the vast majority of female victims and protect the elderly and children.
Thirdly, the perfection of domestic violence legislation.
1, the relevant provisions of the existing laws in China.
China's legal provisions on domestic violence, the existing laws on violence (involving domestic violence) are scattered in the Constitution, civil law, administrative law, criminal law and other laws, and the Marriage Law specifically adds provisions prohibiting domestic violence.
1. 1. Constitution is the fundamental law of the country, and it is also the legislative basis of laws of various departments, and it is also the basis for the special legislation of domestic violence law in China. The Constitution has made specific provisions on the protection of citizens' basic rights and the legitimate rights and interests of women and children, especially the rights to subsistence and development. For example, it stipulates that women enjoy equal rights with men in politics, economy, culture, society and family. It also stipulates that marriage, family, women and children are protected by the state and so on.
1.2, the provisions of civil law on domestic violence are mainly reflected in the protection of citizens' personal rights; "Citizens have the right to life and health", and it is forbidden to damage citizens' reputation by insulting. "Citizens have the right to autonomy in marriage, and buying and selling, arranged marriages and other acts that interfere with the freedom of marriage are prohibited". Because of domestic violence, the perpetrator may bear civil liability.
1.3, domestic violence is prohibited by administrative law, which is reflected in administrative punishment and administrative punishment. For example, the Regulations of the People's Republic of China on Administrative Penalties for Public Security stipulates the punishment or warning of "beating others, causing minor injuries", "illegally restricting others' personal freedom" and "abusing family members, and the abused person asks for treatment", which is not enough for criminal punishment.
1.4, the criminal law stipulates that if the circumstances of domestic violence are serious and constitute a crime, the perpetrator shall be investigated for criminal responsibility. The violent acts committed by the perpetrator can constitute different charges because of the different objects of infringement. For example, it can constitute homicide, injury, crime of trafficking in women and children, violent interference with others' freedom of marriage, abuse, abandonment and so on. At the same time, the criminal law provides corresponding penalties for different crimes.
1.5. The Marriage Law clearly stipulates that "domestic violence, abuse and abandonment between family members are prohibited."
1.6, the Law on the Protection of Women's Rights and Interests also provides corresponding administrative penalties or administrative penalties for insulting women and illegally restricting women's personal freedom.
1.7. In addition to the above-mentioned legal provisions, there are also laws such as the Law on the Protection of Minors and the Law on the Protection of the Rights and Interests of the Elderly. There are also relevant provisions on domestic violence. These laws are comprehensive laws, including criminal provisions, administrative penalties and administrative sanctions, as well as some guiding provisions. To some extent, it has played a positive role in solving the problem of domestic violence, but these regulations are either too general and uncoordinated, or because of vague definitions, it is relatively difficult to implement and become "castles in the air". After the victim was infringed, the complaint was fruitless and the offender could not get the punishment he deserved. More families are separated, which increases social instability.
There are defects in the provisions on investigating the legal responsibility of domestic violence. For example, the provisions of the constitution are only general provisions in principle, but in fact these provisions do not reflect specific binding measures; According to the General Principles of the Civil Law and the Regulations on Administrative Penalties for Public Security, it is usually voluntary to pursue civil or administrative legal responsibility for domestic violence. The so-called voluntary principle means that the victim voluntarily asks the offender to take responsibility and the people's court and the public security organ will handle it according to law; Otherwise, the people's courts and public security organs will not take the initiative to investigate the civil and administrative responsibilities of the perpetrators. In the process of investigation, if the victim voluntarily gives up the investigation, he may not investigate. It can be said that there are objective obstacles in the specific implementation of the civil law and public security punishment regulations on domestic violence. At the same time, according to the civil law, if a husband violently hurts his wife, the wife can get financial compensation. However, if the husband and wife compensate for the same property, it will also make the execution meaningless. Therefore, the marriage law stipulates that only divorce can claim compensation, otherwise it will not be accepted. There are two situations in which domestic violence is investigated for criminal responsibility according to the relevant provisions of the criminal law: one is the investigation of general criminal responsibility; The second is to investigate serious criminal responsibility. In real life, most families belong to the former. According to the law, this kind of situation can only be accepted by the victim personally telling the people's court (ignoring the principle of not telling), that is, telling to accept, not telling not to accept. And allow victims to withdraw their complaints. Because the offender and the victim are often related (such as between parents and children, between husband and wife, etc.). ), in practice, the victim generally just wants to stop the infringement, but he doesn't want the kinship to break down, and he doesn't want to resort to law for criminal sanctions.
2. Assumption and discussion of special legislation on domestic violence.
Because the provisions of the current law on violence and domestic violence are scattered, and the boundaries between law and law are unclear, conflicts increase the difficulty in judicial practice, and ultimately domestic violence cannot be completely eliminated. Therefore, it is necessary for China to formulate a special and unified anti-domestic violence bill to increase the legal effect of anti-domestic violence and the operability of judicial judgment, and truly protect the rights and interests that victims should enjoy. From the perspective of legislation, this paper discusses how to formulate anti-domestic violence law with the principle of interaction between substantive law and procedural law and combination of central law and local law.
2. 1, from the perspective of substantive law
(1), add the crime of domestic violence to the criminal law to distinguish the original provisions of the crime of causing death and injury by violence, and design the scope and punishment of domestic violence by law. Domestic violence should include physical violence; Mental violence; Sexual violence; Domestic violence. According to the different characteristics of forms of violence, the specific provisions of criminal law on domestic violence have formulated punishment measures.
(2) We can learn from foreign legislative experience. For example, the first anti-domestic violence law in the United States is "Prevention and Service Provision of Domestic Violence", which mainly stipulates the definition, manifestations and services provided to women who are victims of domestic violence. The definition of "domestic violence" in American law is very broad. Domestic violence, regardless of its severity, is defined as a crime. All legal provisions on domestic violence are concentrated in Article 265 of the Criminal Law. This paragraph stipulates that it is illegal to intentionally offend others without their consent, no matter how much. This provision covers a wide range of contents, from the slightest contact to serious attacks that cause personal injury, and the consequences are criminal sanctions.
(3) Identification and legislation of marital sexual violence.
Katherine McKinnon, an American feminist scholar, believes that from the perspective of women, rape is not prohibited but regulated; In a social sense, a woman's sex is something that can be stolen, bought, sold or exchanged by others; The question raised in Social Interpretation is not why some women tolerate rape, but how women hate rape.
In China, discussing marital rape is something that happened in recent years. However, there is still ambiguity about whether "the wife has sex without consent" constitutes domestic violence. The new marriage law and judicial interpretation have ruled out the crime of marital rape. For a long time, the sexual relationship between husband and wife has been a blind area and forbidden area of the law, and the law shows a helpless and powerless embarrassment. The subject of rape in China's criminal law is defined as male, but it is not divided into marriage and extramarital affairs. Therefore, according to the interpretation of criminal law, the subject of rape crime should include married men, but in judicial practice, judges follow the interpretation of marital sexual obligations in traditional culture. The law is ahead of time, although it is not the real intention of the makers. China scholars have three views on marital rape: one view is that. Because the crime of rape in our criminal law does not exclude married men (husbands), if a husband has sex with his wife against her will and meets the constitutive requirements of rape, he should be convicted of rape; The second view is that the relationship between husband and wife is legal. Although it is improper for a husband to have sex with his wife by force, he has the right and should not be punished as rape. The third point: We should consider both the rationality of the relationship between the sexes in marriage and the necessity of safeguarding women's rights and interests. Under certain circumstances, the husband can constitute the subject of rape and should be investigated for criminal legal responsibility for rape.
1) The marriage relationship has broken down, and one party filed a divorce lawsuit with the court, which has accepted it;
2) During the period of separation, the husband and wife are separated by the judgment of the people's court due to emotional disharmony;
3) The established marriage has not been registered, or it has been registered but does not meet the legal conditions for marriage, and is declared invalid by the people's court or the marriage registration authority;
4) Although the above three conditions cannot be fully met, he has sexual relations by violence against his will with the participation of a third person other than his husband;
5) Although the above conditions cannot be fully met, the husband uses violence to achieve the purpose of having sex, and the wife is seriously injured against her will.
6) Although the above conditions cannot be met, the husband has sex against his wife's will in order to meet his own physiological needs, regardless of his wife's special physical condition, such as illness and being in the third stage (menstruation, pregnancy and lactation).
The above viewpoints are reflected in some typical cases of marital rape. However, from the analysis of marital rape cases in Anhui, Shanghai and Sichuan, it does not have the characteristics of general marital rape. In fact, the real basis of the judgment in the above cases is that marital rape has caused personal injury to the other party.
(4) Relief measures and legal liabilities should include administrative liability, civil liability and criminal liability.
In domestic violence legislation, the classification of injury and disability caused by domestic violence should be specified in detail. According to the degree of minor injuries and serious injuries, legal responsibilities shall be investigated respectively. According to the criminal law, the crime of injury must reach the level of minor injury, serious injury or death. However, Article 2 of the Trial Provisions on the Appraisal Standard of Human Minor Injury stipulates that minor injury refers to various external factors, such as physical, chemical and biological factors, acting on the human body, resulting in a certain degree of damage to the structure of tissues and organs or partial dysfunction. According to these definitions, many women who have been beaten and abused by their husbands, but have not reached the prescribed degree of minor or serious injuries, are often not accepted after the defendants go to court. Therefore, it is necessary to refine the identification of the degree of disability of victims and the timely sanctions against perpetrators in domestic violence legislation to increase judicial operability.
3. From the perspective of procedural law
3. 1. To formulate protection orders against domestic violence, we can learn from the relevant provisions of Canada and the United States and give the police the right to issue "protection orders" to female victims (or "prohibition orders" to perpetrators). Increase public intervention in domestic violence and effectively protect women from the threat of violence. You can call 1 10 for help at any time. In addition, in domestic violence proceedings, it can be stipulated that judges have three important powers in trying domestic violence cases: First, they have the right to issue "protection orders" to women who have suffered domestic violence. The contents of the "protection order" include: the abuser shall not approach the applicant, shall not harm the applicant or contact the applicant; Ordering the abuser to move out of the applicant's residence within a time limit (when the owner or lessee of the residence is a woman); Give the applicant the right to temporarily monitor minor children. If the perpetrator violates the protection order, he is likely to face illegal charges. The protection order is valid for 1 week for 3 years. After 3 years, the abused person can continue to apply. Second, the judge has the right to issue a "training order" to the alleged perpetrators, that is, to let those perpetrators who are misdemeanors receive psychological treatment and training. Otherwise, they will be sent to prison. Third, criminal courts should judge those who seriously violate women's personal rights without mercy. In this way, the law gives the police and judges the right to issue "protection orders". It will become a compulsory restrictive measure, which has the function of personal protection for the victims.
3.2. Set up special family courts or family courts to hear domestic violence cases: Under the current judicial system, especially in procuratorates and courts, special institutions should be set up to hear domestic violence cases. We can still refer to the experience of the United States and Canada, and entrust the domestic violence trial court or the domestic violence procuratorate (section) with the following responsibilities: detaining, arresting the perpetrators, investigating and collecting evidence, providing medical assistance to the victims, providing them with safe houses, and assisting them in applying for "protection orders". Introduce and help victims find jobs; Open a 24-hour hotline to ensure that victims can report the case at any time; Train and educate the public. Let the family court combine punishment with prevention to fundamentally solve the problem of domestic violence.
3.3. The system of suspended judgment and review shall be implemented in anti-domestic violence proceedings: the ultimate goal of this law is to prevent and stop the recurrence of criminal acts. Without the purpose of law, the fundamental significance of legislation and law enforcement will be lost. Therefore, in line with the principle of saving lives, the system of suspended judgment and review is implemented in the anti-domestic violence litigation law. The family court can give suspended sentences to those who have slight or moderate injuries.
3.4. Make full use of mediation procedures. There is no mediation procedure in the current criminal procedure law, because criminal law represents public power and mediation out of court is prohibited. But mediation is a unique procedure in China's civil procedure law. Because domestic violence cases are different from other criminal cases, other criminal crimes have obvious social harm, and the perpetrators and victims of domestic violence are family members and have no direct social harm. At the same time, marriage and family relations are very complicated, and families are very different, especially family relations involve family ties, marital feelings and other issues, so it is possible for one party to forgive the other; In addition, for most women who suffer from domestic violence, they don't want to divorce or put their husbands in prison, but just want to end the violence in family life. In this case, the mediation procedure can play an important role.
4. Establish and improve the legal system to prevent and stop domestic violence.
As a family problem, the fundamental solution to domestic violence is prevention. In addition to perfecting laws and regulations, we need the joint efforts of the whole society. To fundamentally eliminate domestic violence, it is necessary to treat both the symptoms and the root causes, implement comprehensive policies and implement comprehensive prevention and control.
4. 1. The government should change its ideas.
Domestic violence against women is not only a personal violation of women, but also a damage to women's dignity as a group and a violation of women's human rights. The Government of China should pay more attention to this issue and take up the responsibility of protecting women who are threatened and hurt by domestic violence. Grass-roots government workers should change the concepts of "it is a family matter for a husband to beat his wife", "it is difficult for an honest official to decide family matters" and "it is painful to beat and love to scold". No matter on any occasion or in any relationship, when the personal safety of citizens is violated, the government has the responsibility to protect it.
4.2, the division of labor and comprehensive management of government departments.
Anti-domestic violence is a systematic project. Therefore, government intervention is very important. Civil affairs, health, public security, justice and other government departments should not only have joint and coordinated actions, but also have a clear division of responsibilities to stop domestic violence from different levels. At the same time, relevant personnel should be trained to enhance their awareness of anti-domestic violence. The training targets should include: grass-roots government staff, neighborhood Committee cadres, police officers of police stations, procuratorates, court-related personnel and medical staff in some hospitals, because these personnel are the staff of major government systems that women who are threatened and injured by domestic violence can rely on. During the training process, in addition to letting the victims know the common sense about domestic violence and knowing that it is their duty to help women who are injured by domestic violence, they should also know that they are within the scope of their duties. What they should do and how to stop domestic violence should be one of the work contents of grass-roots government staff. Whether domestic violence is stopped in time and dealt with effectively should be one of the indicators to evaluate whether grass-roots governments and their staff are conscientious.
4.3. Provide practical help to battered women.
For example, to reduce the agency fees, when the victimized women who want to take the perpetrators to court are in financial difficulties, some legal agencies designated by the government should be represented to reduce the fees for the victims in financial difficulties; At the same time, the community can provide some psychological support and counseling for abused women, reduce the frequency and degree of abuse, master some common sense and methods to prevent domestic violence, and protect themselves in the case of domestic violence.
Summary:
China should learn from the relevant laws and regulations of other countries in the world, at the same time, increase the intervention of state public rights in domestic violence, and establish a special anti-domestic violence law in combination with our judicial practice and national conditions.