On March 5, 2022, the Supreme People's Court, together with the All-China Women's Federation, the Ministry of Education, the Ministry of Public Security, the Ministry of Civil Affairs, the Ministry of Justice, and the Health Commission, jointly issued the Opinions on Strengthening the Implementation of the Personal Safety Protection Order System (hereinafter referred to as the Opinions). The responsible person of the First Civil Division of the Supreme People's Court was interviewed on relevant issues.
Could you please introduce the main considerations for the joint issuance of the Opinions by seven departments?
answer
The prevention and suppression of domestic violence is a social project that requires the joint efforts of various departments to solve it. Various departments have repeatedly studied and reached a consensus on this, which is the basis for the joint issuance of the Opinions. The Anti-Domestic Violence Law clearly stipulates that where a party applies to the people's court for a personal safety protection order due to domestic violence or faces the actual danger of domestic violence, the people's court shall accept it. The people's courts have an unshirkable responsibility to implement the Anti-Domestic Violence Law and issue personal safety protection orders in accordance with law. Since the implementation of the Anti-Domestic Violence Law, the number of personal safety protection orders issued by the people's courts has also increased year by year, and a "separation wall" has been set up for victims of domestic violence, which has effectively protected the personal safety and personal dignity of victims of domestic violence. However, in practice, we have also found that many parties do not understand the personal safety protection order system, have a weak sense of evidence, and the personal safety protection order enforcement system is not yet perfect. Based on the specific responsibilities of each department, we grasp it from the source and open up the "blockage" of communication and cooperation between departments. First, schools, judicial administrative departments, and so forth are required to increase the intensity of legal publicity, informing parties in relevant work that they can apply for personal safety protection orders, so that victims of domestic violence can understand the legal weapons to protect themselves; second, in view of the difficult problems of domestic violence, further clarify the mandatory reporting obligations of relevant departments, so that domestic violence, especially for people without civil capacity and limited capacity for civil conduct, can be effectively supervised; third, for the difficulty of providing evidence for the parties, Move the procedures for collecting and fixing evidence forward, making it clear that public security organs pay attention to collecting and fixing evidence in the process of handling alarms, and the people's courts increase the intensity of collecting evidence ex officio, and establish an interoperability mechanism with the public security organs; fourth, refine the personal safety protection order enforcement system jointly participated by the people's courts, public security organs, civil affairs departments, and other units, weave a tightly woven anti-domestic violence prevention and control network, truly give play to the role of personal safety protection orders, and open up the "last mile" of anti-domestic violence.
Domestic violence mainly occurs within the family, especially domestic violence against minors and mentally ill persons, which is often carried out by their legal guardians, which makes it more difficult to find, what measures has the "Opinions" taken to solve this problem?
Discovery is a prerequisite for rescue. Indeed, as the reporter said, based on the cognitive ability of minors and mentally ill people, when they suffer domestic violence, they are often powerless to resist, and the "Opinions" also pay special attention to this. Clearly adhere to the principle of the most favorable to minors, requiring all departments to hear minors' opinions on domestic violence issues or to make transcripts of interrogations, fully considering the physical and mental characteristics of minors, providing an appropriate environment for places, employing inquiry methods that minors can understand, and paying special attention to protecting their privacy and safety. When necessary, arrange for psychological counselors or social workers to assist in carrying out the work. In cases where it is specified that minors are victims of personal safety protection orders, the people's courts may notify the legal aid institution to provide legal aid to them. Where minors provide testimony as witnesses, they may not appear in court to testify. In view of the characteristics of schools and kindergartens having close contact with minors and making it easier to discover that minors encounter domestic violence, the "Opinions" make it clear that when schools and kindergartens discover that minors have suffered or are suspected of having suffered domestic violence, they shall promptly report to the relevant departments such as public security, civil affairs, and education. Doctors in the process of diagnosis and treatment based on professional medical knowledge is also more likely to find and judge the injury and cause, to this end, the "Opinions" also further clarified the mandatory reporting obligation of hospitals. The "Opinions" also stipulate that villagers' committees, residents' committees, social work service organizations, aid management institutions, welfare establishments and their staff shall promptly report the case to the public security organs if they discover in their work that persons without capacity for civil conduct or persons with limited capacity for civil conduct have suffered or are suspected of having suffered domestic violence. Through the above-mentioned detailed provisions, give full play to the joint efforts of various departments to ensure that domestic violence can be detected in a timely manner.
It is understood that in the case of the applicant's personal safety protection order, many parties did not have a sense of evidence retention, resulting in insufficient evidence, what measures did the Opinions take to ensure it?
From what we have learned from our research, the main reason why the application for personal safety protection order has been rejected is insufficient evidence. Although this has the problem of grasping the standard of evidence, it also reflects the general weakness of the burden of proof for victims of domestic violence. Based on the characteristics of the location, time, and other characteristics of the formation of evidence of domestic violence, the "Opinions" move prevention and control work forward, clarifying that relevant departments should pay attention to the preservation of evidence formed in work, so as to alleviate the problem of insufficient ability of parties to present evidence. For example, the "Opinions" stipulate that in the process of diagnosis and treatment, medical institutions that find injured persons who may suffer domestic violence should do a good job of information registration and diagnosis and treatment records of the injured persons in detail, and accurately, objectively and comprehensively record the main complaints, injuries and diagnosis and treatment processes of the injured person in the medical records, and assist the public security organs in collecting evidence. The "Opinions" also stipulate that public security organs shall issue domestic violence warning letters in accordance with laws and regulations, pay attention to collecting and fixing evidence, actively cooperate with people's courts in collecting evidence in accordance with their authority, provide police records, warning letters, interrogation (interrogation) records, and so forth, and explore the establishment of mechanisms for linking domestic violence and warnings and reporting mechanisms. It is also one of the key measures to address the difficulty of proof for victims of domestic violence in applying for a personal safety protection order. Protect the lawful rights and interests of victims of domestic violence by realizing information sharing among various departments, quickly verifying the facts, and promptly issuing personal safety protection orders. At present, the Supreme People's Court is stepping up its efforts to study and formulate judicial interpretations on personal safety protection orders to more comprehensively, fully and timely protect the legitimate rights and interests of victims.
Only when the personal safety protection order is effectively implemented can it really play a role in protecting the rights and interests of victims, but domestic violence occurs within the family and has always been difficult in the field of enforcement.
The enforcement of personal safety protection orders is divided into two categories: one is the enforcement of obligations, such as "ordering the respondent to move out of the applicant's residence"; the other is the enforcement of non-obligations, such as "prohibiting the respondent from harassing, stalking, and contacting the applicant and his relevant close relatives". In practice, based on various considerations, there are not many cases of "ordering the respondent to move out of the applicant's residence" in general, and the vast majority of cases are the inaction obligation of the respondent. This has always been a difficulty and weakness in the compulsory enforcement procedures of the people's courts. Considering the characteristics of the performance of personal safety protection orders and the degree of closeness with the work of relevant departments, the Opinions make it clear on the basis of full consultation among various departments that if the respondent does not perform or violates the personal safety protection order, the applicant may apply to the people's court for compulsory enforcement. At the same time, the Opinions also made detailed provisions on the operativeness of public security organs, residents' committees, villagers' committees, women's federations and other relevant units to assist in the implementation of their obligations. Among them, in addition to assisting in supervising and urging compliance with the personal safety protection order, the public security department also needs to notify the people's court of the situation and truly realize the departmental linkage when the respondent violates the personal safety protection order. Residents' committees, villagers' committees, and women's federations can give play to their front-line advantages in resolving contradictions and disputes, track and record the implementation of personal safety protection orders, provide rule of law education and psychological counseling, and help victims contact the people's courts and public security organs in a timely manner, and truly mobilize the vitality of anti-domestic violence linkage mechanisms coordinated by various departments. In addition, according to the opinions of various departments, the "Opinions" also expanded the scope of entities assisting in implementation, including local women's federations, organizations for the protection of minors, federations of disabled persons, organizations for the elderly established according to law, etc., relying on special organizations to form professionalism and synergy for the protection of special groups.
Source/Supreme People's Court
Editor/Tao Yinsheng
Review/Qiao Hong
Producer/Xi Shujun