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The sub-center edition of Beiqing Community Daily has opened the [Xiaoqing Public Interest Legal Services] public interest law popularization column, welcome citizens and friends to submit their own legal problems, we will invite professional lawyers to answer questions and analyze typical cases, to provide legal reference for everyone, so stay tuned!
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Issue 52
Wu Qing, 25, was stabbed to death by her husband in front of her parents' house in Shanghai, and the murderer at the trial argued that he did not mean it, but only lightly slashed a few times. Wu Qing was subjected to domestic violence by her husband many times before her death, and after calling the police, suing for divorce, and leaving her hometown, she still has nowhere to escape.
In February 2023, her divorce request to the Kaizhou District People's Court in Chongqing was rejected. In the divorce complaint, she expressed her disappointment with the marriage: Xu Lin repeatedly committed domestic violence, abused children, and harassed his parents for no reason.
On May 15, 2023, Xu Lin went to a community in Songjiang, Shanghai, where Wu Qing's family lived with a knife, broke in, cut his throat, stabbed his abdomen, and brutally killed what he called "the most beautiful wife, a gentle, lovely, and temperamental wife" in the guarantee. Their four-year-old son, who was there to witness everything. Xu Lin then turned himself in.
Nearly a year after the incident, on April 19, 2024, considering that the murderer had children and surrendered, the Shanghai No. 1 Intermediate People's Law pronounced a verdict that the defendant Xu Xiaoling committed intentional homicide and was sentenced to death, with a two-year reprieve, and deprived of political rights for life.
The murderer wants to compensate for the house worth five or six hundred thousand yuan in his hometown, and Wu Qing's parents just want to get justice for their daughter, "I don't want compensation, as long as the murderer dies." ”
A case of death caused by "domestic violence" on the Internet has caused heated discussions, and this time we will talk about the relevant laws and regulations of "domestic violence".
1. Is there a definition of "domestic violence" in the law?
2. If one of the spouses has "domestic violence", can the other party sue for divorce, and what evidence needs to be collected?
3. Is "domestic violence" not defined as "intentional injury"?
This column invites lawyer Wu Zhuozhuo of Beijing Huixiang Law Firm, lawyer Gao Ming of Beijing Huixiang Law Firm, lawyer Yu Xiaonan of Beijing Derun Law Firm, and interns Li Zhengyang and Wang Ruihan to give legal interpretations on related topics for readers' reference.
Is there a definition of "domestic violence" in the law?
Mainland law has a clear definition of "domestic violence". Article 2 of the Anti-Domestic Violence Law of the People's Republic of China stipulates that domestic violence refers to physical, mental and other acts of aggression committed by family members by means of beating, binding, maiming, restricting personal freedom, and frequent verbal abuse and intimidation.
Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Handling of Personal Safety Protection Order Cases also provides a supplement to domestic violence, which stipulates that physical or mental aggression committed by family members by means of starvation, frequent insults, defamation, threats, stalking, harassment, etc., shall be deemed to be "domestic violence" as provided for in article 2 of the Anti-Domestic Violence Law.
If one spouse commits "domestic violence", can the other spouse sue for divorce and what evidence needs to be collected?
Article 1079 of the Civil Code stipulates: "If one of the husband and wife requests a divorce, the relevant organization may conduct mediation or directly file a divorce lawsuit with the people's court. When hearing a divorce case, the people's court shall conduct mediation, and if the relationship has truly broken down and the mediation is ineffective, the divorce shall be granted. In any of the following circumstances, if mediation fails, a divorce shall be granted...... (2) Committing domestic violence or abusing or abandoning a family member......; "It can be seen from this that if one of the spouses commits acts of "domestic violence", the other party has the right to file a divorce lawsuit with the people's court in accordance with law.
A party initiating a divorce lawsuit due to "domestic violence" shall pay attention to collecting the following evidence:
1. Witness testimony. If other family members, neighbors, and so forth are present to witness domestic violence, relevant witness testimony may be collected, including but not limited to testimony provided by minor children appropriate to their age and intelligence.
2. Diagnosis certificates and diagnosis records of victims who have suffered domestic violence.
3. Recordings of telephone calls between the victim of domestic violence and the perpetrator, or other electronic data or audio-visual materials, such as relevant photographs, audio and video recordings taken during the course of the violence.
4. After the victim reports to the police, the public security organ's police records, the written warning issued to the perpetrator, the victim's injury appraisal report, and so forth.
5. Written materials such as pledges, confessions, and pledges written by the perpetrator.
6. Records provided by neighborhood committees, women's federations, and other basic-level mediation organizations of the person being the victim of domestic violence seeking help, as well as relevant mediation records.
In light of the "Ma v. Ding Divorce Case" in China's Top 10 Typical Anti-Domestic Violence Cases released by the Supreme People's Court, the Supreme People's Court has stated that special rules of evidence should be applied to the determination of the facts of domestic violence, and that in cases involving domestic violence, the court may determine the existence of facts that the applicant has suffered domestic violence or is facing a real danger of domestic violence based on the medical institution's diagnosis and treatment records and injury appraisal opinions. In the course of the trial of cases involving domestic violence, the Supreme People's Court pointed out that the court can take positive measures to reduce the difficulty of proving the facts of domestic violence, balance the status of the two parties, and quickly make a divorce judgment if the facts of domestic violence are determined.
Despite the guidance of the above-mentioned typical cases, in current judicial practice, a large proportion of divorce cases are not granted for the first time. After the court decides that a divorce is not allowed, because there is a six-month period before a lawsuit can be filed again, the party who suffers domestic violence should pay attention to protecting the personal safety of himself and his family members, and if necessary, may apply to the people's court for a personal safety protection order.
Isn't "domestic violence" defined as "intentional injury"?
Domestic violence does not necessarily define as a crime of intentional harm. Whether domestic violence can be recognized as the crime of intentional injury mainly depends on the following key factors:
First, the extent of the victim's injuries. According to the evaluation criteria of the Criminal Law, the crime of intentional injury requires "causing minor injuries or more to the victim", and if the harm caused to the victim by the act of domestic violence reaches the level of minor injuries or above, the perpetrator may be found guilty of intentional injury.
Second, subjective awareness. The crime of intentional injury requires that the perpetrator subjectively has the intent to hope for or allow the victim to be seriously injured, or that the violent means are cruel or the degree of violence is relatively strong, directly or immediately causing the victim's serious injury.
In specific cases, the judicial organs will generally make a comprehensive assessment based on factors such as the specific circumstances of the domestic violence, the perpetrator's motives, means of conduct, and the consequences caused, and decide whether the domestic violence constitutes the crime of intentional harm based on the severity of the domestic violence.
In accordance with article 16 of the notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice on the "Opinions on Handling Criminal Cases of Domestic Violence in Accordance with Law", domestic violence crimes that infringe on citizens' personal rights, such as intentional homicide, intentional injury, rape, child molestation, illegal detention, humiliation, violent interference with the freedom of marriage, abuse, abandonment, and other domestic violence crimes that infringe on citizens' personal rights, shall be based on the facts of the crime, the nature of the crime, and The circumstances and the degree of harm to society are to be sentenced in strict accordance with the relevant provisions of the Criminal Law. Where multiple crimes are committed at the same time for the same conduct, follow the provisions for the heavier punishment at trial and sentencing.
Relevant laws and regulations:
Article 127 of the Civil Procedure Law: The people's courts shall handle the following lawsuits in separate circumstances:
(1) Where it is within the scope of administrative litigation in accordance with the provisions of the Administrative Litigation Law, inform the plaintiff to initiate an administrative lawsuit;
(2) If, in accordance with the provisions of law, the parties have reached a written arbitration agreement to apply for arbitration, and shall not file a lawsuit in the people's court, inform the plaintiff to apply for arbitration to the arbitration institution;
(3) For disputes that should be handled by other organs in accordance with the provisions of law, inform the plaintiff to apply to the relevant organs for resolution;
(4) In cases that are not within the jurisdiction of that court, inform the plaintiff to file a lawsuit with a people's court with jurisdiction;
(5) In cases where a judgment, ruling, or mediation document has already taken legal effect, and the parties file a lawsuit again, inform the plaintiff to apply for a retrial, except for the people's court's ruling to approve the withdrawal of the lawsuit;
(6) In cases where litigation must not be made within a set period of time in accordance with the provisions of law, and where litigation is initiated within the period of time for which litigation must not be initiated, it is not to be accepted;
(7) In cases where a judgment does not allow divorce or mediation to reconcile divorce, or where there are no new circumstances or new reasons for a judgment or mediation to maintain an adoption relationship, and the plaintiff files another lawsuit within six months, it is not to be accepted.
Article 1 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Handling of Personal Safety Protection Order Cases":
Where parties apply to the people's courts for a personal safety protection order in accordance with the Anti-Domestic Violence Law because they have suffered domestic violence or face a real threat of domestic violence, the people's courts shall accept it.
Applying to a people's court for a personal safety protection order is not conditional on initiating a civil lawsuit such as a divorce.
statement
The above is for readers' reference only. The views in this article do not represent any final legal opinion, because the relevant information comes from the reader's unilateral description, this article only explains the relevant legal provisions from the perspective of public interest law popularization, and does not represent any legally effective determination opinion, does not represent any final legal conclusion, and cannot be used as the basis for determining the outcome of the case。
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