China's First Anti-domestic Violence Law

Domestic Violence has always been an extremely severe social problem in China.(According to a research done by China Law Society, domestic violence happens in 34.7% families, and in 90% domestic violence related cases, victims are women, children, or elderly people that cannot defend themselves against such violence.) However, despite the situation, it took 21 years to finally finish the lengthy legislative process of the first anti-domestic violence law since the definition of “domestic violence” was first introduced into the China academic circles in 1995.

Before the anti-domestic violence law, there have already been several laws and regulations, such as those in the Marriage Law, to prevent such abuse towards women and children. Unfortunately, hardly any of these articles have been invoked by victims in the past decade because of either psychological reasons or practical reasons.

●Psychological reasons
1.Victims consider domestic violence as a taboo topic in Chinese society, and feel shame about bringing such problem to view
2.Being afraid of the revenge of the perpetrator or abuser

●Practical reasons
1.Evidence producing
a)There’s no clear-cut definition of domestic violence in legal sense, which leads to different problems when collecting evidence.
b)Under specific ciecumstances, such as in cases of cold violence, the evidence can be hard to collect.
a)Victims have to go through inconvenient procedures in limited time to make their evidence authenticated by the judge or the court.
a)In most cases, the witness would be family members or close friends of both the victim and the abuser, and they are not willing to be involved in the prosecution.
b)Extremly complicated procedures
4.Determination (of the judge)
a)Judges have difficulty in pronouncing someone guilty when evidence is not strong enough.

The anti-domestic law is now dealing with these problems by taking effective measures to cover the shortage of the previous laws and regulations.

1.Making clear the legal definition of domestic violence, which includes both physical and mental harm to the victims.

2.The Mandatory Reporting System
One of the highlights of the anti-domestic violence law is that it put more attention on people of no or limited civil capacity, such as children. The law prescribes that schools, kindergartens, women’s federations, social service organs, and the police have the obligation to report the case to the local court once they realize the existence of abuse, which puts more value on prevention rather than punishment.

3.The introduce of the Personal Safety Protection Order

4.The Emergency Shelter System for people of no or limited civil capacity.

5.The Withdrawal of Guardianship
When domestic violence happens between parents and children that are under legal age, the people’s court can withdraw the guardianship of the parents, and reassign a new guardian to the child. Under this circumstance, the parents still have to pay the cost of upbringing, but their parental right will be limited.

Bringing the anti-domestic violence law into practice is a great example of protecting private rights, especially of people that are among the vulnerable groups in the society, by a public law. This is a successful extension of the public rights into the field of private rights, and it finds a new balance point between respecting the privacy of individuals and preventing criminals exploiting some loopholes in the law to evade penal responsibility.

However, the anti-domestic violence law is still a young one, and it still needs time to develop. Details such as the range of legal punishment and the efficiency of enforcement of this law have already caused considerable controversy. Also, the lack of the protection of gay couples’ rights still remains a controversial issue of the society.

Date Published: 

Tuesday, March 1, 2016