LEGAL PROTECTION: Two court workers file documents on domestic violence cases in Liuyang City, Hunan Province, on May 8, 2012 (HE JUNCHANG)
Immediately after the handbook came out, the Supreme People's Court launched a pilot program, authorizing nine county- and district-level courts to issue civil protection orders on behalf of victims of domestic violence in marital cases on the basis of the handbook. By the end of 2010, the number of courts participating in the program had risen to 82. In addition, the higher people's courts in Hunan, Jiangsu and Guangdong provinces also launched pilot programs within their jurisdictions.
According to an article published in Law & Life, a total of more than 200 civil protection orders had been granted by courts in China by the end of 2012 and only four had been disobeyed, which showed the effectiveness of protection orders in safeguarding victims. Landmark cases included the first order to protect a domestic violence victim from a non-marital partner in September 2012 and the first order to protect a male domestic violence victim and his parents in June 2010.
However, the handbook is not a legal document, and it is not binding on judges. As a result, several provincial higher people's courts had issued regulations regarding the issuance of civil protection orders in marital cases that cite extracts from the handbook. These regulations are legally binding in their jurisdictions.
The amended Civil Procedure Law, which took effect on January 1, 2013, is the first Chinese law to provide a legal basis for the issuance of civil protection orders.
Article 100 of the law states that when a party's actions or other factors may hinder a judgment's execution or cause harm to another party, the court, upon application from the victim, can issue an order to preserve the victim's assets and order the party responsible to carry out or refrain from carrying out certain acts. When no application is filed, the court can still order preservation measures when necessary. During emergent situations, the court should rule within 48 hours after receiving an application and preservation measures should become effective immediately.
The clause on "preservation actions" provides a more direct legal basis for judges to issue protection orders. Based on the new law, the court could issue an injunction even when nobody seeks it.
On January 11, 2013, a court in Zhuhai City, Guangdong, granted a protection order for a woman against her husband who beat her for seeking a divorce, the first such order in China based on Article 100 of the amended Civil Procedure Law. The court granted the wife the order the day she applied, barring the husband from beating, threatening, stalking or harassing her.
Many legal experts believe that the introduction of civil protection orders is legislative preparation for the drafting of an anti-domestic violence law in China.
As early as December 2001, the Supreme People's Court issued a guidance on how judges should handle marital cases involving allegations of domestic violence, including a definition of family violence, in a judicial interpretation regarding the Marriage Law, which was amended in April of the year.
However, according to a survey among district- and county-level courts conducted by the China Institute of Applied Jurisprudence in 2007, though domestic violence allegedly existed in up to 62 percent of divorce cases tried by these courts, they had only identified domestic violence in less than 8 percent of the lawsuits since the Supreme People's Court's judicial interpretation was issued. The institute attributed this phenomenon to the lack of detailed measures for implementing regulations against domestic violence in the Marriage Law.
In July 2008, the All-China Women's Federation, the Supreme People's Procuratorate and five central government departments jointly issued the first national policy paper on domestic violence in China, describing the responsibility of the government in addressing domestic violence and the need for collaboration between government agencies to provide support and protection.
For years, domestic violence campaigners and gender law scholars in China have been calling for legislation on domestic violence. According to a legislative work plan published in 2012 by the Standing Committee of the National People's Congress, China's top legislature, a law against domestic violence will be promulgated by 2015.
"According to the current laws and regulations, a civil protection order must be filed as part of litigation, which scares domestic violence victims who don't want a divorce yet and narrows the scope of its application," said Li Mingshun, Vice President of China Women's University, in an interview with Legal Weekly.
Li, also a scholar on marriage law, strongly advocates the drafting of legislation preventing domestic violence based on the grounds that as a comprehensive social issue, domestic violence cannot be fully covered by any other law, such as the Marriage Law or Law on the Protection of Women's Rights and Interests. "An anti-domestic violence law is the most effective weapon to address this problem," he said.
Email us at: firstname.lastname@example.org