On February 13, 2014, Beijing, Li Yang's divorce property dispute case was heard. / Visual China
Domestic violence incidents have never faded from the public eye. The complexity of domestic violence issues often makes it more difficult to deal with in practice. According to statistics, the evidentiary rate of domestic violence cases is only 17.59%.
Cases of perpetrators still living and victims struggling abound.
So, how to collect evidence in the face of domestic violence, and how to count as effective evidence? Hear how Professor Gang Kanazawa of Tongji University Law School analyzed it.
Li Yang is on the hot search again, this time he is going to sue his ex-wife.
Li Yang, who had admitted to his domestic violence in countless public occasions, suddenly felt that he had been "conspired" by his ex-wife a few years later, and wanted to seek justice for himself.
Li Yang questioned his ex-wife's motives. / Weibo @ Daily Economic News
Netizens who know Li Yang may see this news and will be a little puzzled: Is there any plot that we have missed?
Back in 1999, Li Yang fell in love with his ex-wife and married him for work reasons, and had three daughters.
In 2011, his ex-wife posted photos of her injuries, saying she had been subjected to years of domestic violence. The parties were divorced in 2014, and in the lawsuit the court found that "Li Yang had domestic violence.".
On August 29 this year, Li Yang's ex-wife once again posted a complaint against Li Yang's daughter and posted a video of a suspected domestic violence scene. The video footage shook violently, and there were also shouts of suspected Li Yang and his daughter, who Li Yang's ex-wife said in the blog post that Li Yang was "brutally beating our daughter."
A few months later, just yesterday, Li Yang responded for the first time to the "domestic violence daughter" controversy, saying that the video provided by his ex-wife was edited, believing that the conflict was planned in advance by his ex-wife, saying that he would possibly sue his ex-wife.
What is right and wrong, the Internet is bustling.
In China, beating a wife, not going to jail?
Li Yang promotes his English teaching philosophy in Xibaipo. / Weibo @ Li Yang Crazy English
In the past ten years, the biggest label attached to Li Yang has long changed from "crazy English" to "crazy domestic violence".
Although it was determined in the previous divorce proceedings that Li Yang had committed domestic violence, it should be said that it is likely that the litigation period stipulated by China's laws and regulations has exceeded, and the law will no longer pursue it. Moreover, the two parties have divorced for this, and Li Yang apologized.
Therefore, to this day, it is possible to morally condemn Li Yang for domestic violence at that time, but in terms of legal responsibility, whether it is civil or criminal prosecution, it is difficult to establish.
However, if we switch the perspective to the current issue of domestic violence daughters, it is necessary to discuss whether the facts of domestic violence are established, and what kind of legal nature is complied with and what kind of punishment should be imposed.
At the source, Article 38 of our Constitution stipulates that "the personal dignity of citizens of the People's Republic of China shall not be infringed upon." It is forbidden to insult, slander and frame citizens by any means", Article 49 stipulates that "marriage, family, mother and child are protected by the State." Both spouses have the obligation to practice family planning. Parents have the obligation to raise and educate minor children, and adult children have the obligation to support and support their parents. The prohibition of undermining the freedom of marriage and the prohibition of abuse of the elderly, women and children" are the legal basis for anti-domestic violence.
Until the end of 2015, the harm of domestic violence led to the introduction of China's Anti-Domestic Violence Law, but it should not be ignored that domestic violence is diverse and not easy to manage.
Li Yang's domestic violence divorce case pronounced a verdict of tears for his ex-wife in public. / Visual China
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According to Article 2 of China's Anti-Domestic Violence Law, domestic violence refers to physical, mental, and other violations committed by family members by means of beatings, bindings, mutilations, restrictions on personal freedom, and frequent verbal abuse and intimidation. For domestic violence, the Criminal Law and the Anti-Domestic Violence Law mainly classify and regulate the violation of the law and the crime according to the severity of the circumstances and consequences.
Specifically, article 16 of China's "Anti-Domestic Violence Law" stipulates: "Where the circumstances of domestic violence are relatively minor and public security administrative penalties are not given in accordance with law, the public security organs shall give criticism and education to the perpetrators or issue a letter of warning." Article 33 of the Law stipulates: "Where the perpetrator commits domestic violence, which constitutes an act contrary to the administration of public security, a punishment for the administration of public security shall be given in accordance with law; where a crime is constituted, criminal responsibility shall be pursued in accordance with law." ”
Because domestic violence occurs within the family, it obviously has the characteristics of "internal family contradictions", and the relationship between the parties is special, resulting in the treatment of domestic violence cannot be one-size-fits-all.
For example, in this incident, Li Yang's domestic violence in beating his daughter may be characterized as a public security violation due to intentional injury, and Article 43 of China's Public Security Administration Punishment Law stipulates: "Whoever beats another person, or intentionally injures the body of another person, shall be detained for five to ten days, and shall also be fined between 200 and 500 yuan." ”
If Li Yang beat his daughter's domestic violence and caused her daughter minor or serious injuries, it would violate the criminal law's provisions on the crime of intentional injury, that is, if he intentionally injured another person's body, he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance.
Whoever causes serious injury shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. Of course, the offence must be applied as a result of causing minor or serious injuries, and the specific results must be based on judicial appraisal Some superficial injuries with dark skin may not fall into this category.
Netizens commented on Kim's forgiveness of Li Yang. / Weibo @Lina Hua's Mom
Another possibility, because Li Yang's ex-wife Kim also posted that her daughter Li Na recalled the scene of the incident: "He tried to strangle me, beat me, pulled my hair to the floor, and I fought back." ”
If this is the case, it may also involve abusive behavior between family members.
Article 260 of China's Criminal Law stipulates the crime of ill-treatment, that is, the abuse of family members, if the circumstances are heinous, shall be punished by fixed-term imprisonment of not more than two years, criminal detention or public surveillance. Whoever causes serious injury or death to the victim shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years.
That is, the crime of intentional injury requires a serious injury result, while the crime of ill-treatment does not.
Between family members, if it is accompanied by physical or mental torture such as bondage, confinement, sarcasm, and freezing for a long time, it may constitute the crime of abuse.
However, the composition of the crime of abuse also requires "serious circumstances" and that the abuse cannot be "completed" in one day. For example, as a family member, a violent impulse like drunkenness, or a scolding and smashing of something, is difficult to constitute this crime.
The evidence of domestic violence is a technical job
However, in response to the accusations of Li Yang's ex-wife, on August 31, Li Yang's lawyer issued a statement saying that Li Yang's "domestic violence daughter" was seriously untrue, and there was a misunderstanding between the two sides in the way her daughter was educated.
Li Yang's younger brother also sent a message of support for Li Yang, saying that Li Yang arranged for his daughter to attend the best school in Beijing.
As a father, Li Yang is busy at work, and he will care about the daily life and study of his children every day, and also entrust his daughter's grandmother and aunt to take care of them every day.
The reason for the quarrel is that "Li Na did not return at night, missed class to fall in love, and Li Yang reprimanded her loudly." It seems that the two sides are very divergent in their opinions. This involves the issue of evidence provided for by law.
Crazy English employees persuade Kim to forgive Li Yang. / Weibo @Lina Hua's Mom
On the one hand, regardless of whether the video is edited or not, it is difficult to judge whether Li Yang's behavior is a tendency to domestic violence;
On the other hand, if it is only a video for a few minutes, it is difficult to prove that it constitutes a crime, or even the nature of a public security violation.
Because parents' right to criticize their children's education is undoubtedly legally recognized. There is still a difference between educating children about individual rough behaviors and the bottom line of violating the law.
At present, there is no information about the involvement of the police in this incident, but in the face of domestic violence, how to protect rights, in addition to resorting to the news media for exposure, in fact, China's "Anti-Domestic Violence Law" has made detailed and systematic provisions on relevant measures.
For example, article 13 of the Anti-Domestic Violence Law provides: "Victims of domestic violence, their legally-designated representatives, and close relatives may complain, reflect, or seek help from the perpetrator or the victim's unit, residents' committee, villagers' committee, women's federation, or other such units." After relevant units receive a complaint, response, or request for help on domestic violence, they shall give help or handle it. Victims of domestic violence, their legally-designated representatives, and close relatives may also report the case to the public security organs or file a lawsuit with the people's court in accordance with law. ”
Accordingly, victims of domestic violence have the right to recourse, report or sue the courts, but one of the tasks that is particularly important in the adoption of these judicial remedies is the collection of evidence.
In criminal cases, the Code of Criminal Procedure stipulates that evidence should be collected by the judiciary and used to charge a crime. "The sentencing of all cases should emphasize evidence, investigation and research, and not credulous confessions."
In terms of the standard of proof of the crime, China's "Criminal Procedure Law" stipulates that the evidence must be credible and sufficient, that is, the facts of conviction and sentencing must be proved by evidence; the evidence on which the verdict is based has been verified to be true through legal procedures; and the evidence of the whole case has been comprehensive, and reasonable doubts have been excluded from the facts identified. It can be seen that criminal cases have strict requirements for evidence.
However, domestic violence cases may not necessarily rise to the stage of criminal prosecution at the beginning, and it is very important for the parties themselves to collect evidence for domestic violence acts that violate the nature of public security administrative penalties and divorce for domestic violence.
Therefore, once you encounter domestic violence, you can take pictures as soon as possible to retain the scene or the fact of victimization, immediately go to the hospital for treatment and save medical records after injury, in addition to self-recording and video recording, timely go to the community organization where the family is located, or the public security organs call the police for help.
In special cases, you can also go to the Women's Federation, legal aid institutions or even the other party's unit to explain the situation and ask for their help. In this way, the traces and records left behind, human and physical evidence can become evidence for judicial processing.
Li Yang's ex-wife revealed her heart journey in an interview / Weibo @ Lina Hua's Mom
To retain evidence and let it speak is not only to prove that you are a victim, but also to avoid wronging others. This is also a principle that the law must uphold.
Objectively speaking, Li Yang's domestic violence has caused a very negative impact on Li Yang's image, from the real domestic violence of the previous divorce to the suspicion of the daughter of the domestic violence, which has in fact become a public incident.
Even if no party reports or prosecutes, the relevant functional departments should also take the initiative to inquire, understand through investigation, give the society an explanation, and also give a true statement to netizens who care about them.
Regardless of the outcome, the incident itself is an influential lesson in legal education, and the public will not and cannot only be a spectator.
✎ Author | Tsuyoshi Kanazawa
✎ Proofreading | Wu Yuyan
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