Key takeaways:
- As of 2021, Chinese courts have granted 10,917 PPOs, which have prevented and stopped domestic violence or the recurrence thereof.
- Given that the PPO mechanism was introduced in China very recently, when faced with this new tool against domestic violence, Chinese society and Chinese courts are learning how to make the best use of this mechanism while preventing and solving concurrent problems.
- In August 2022, China’s Supreme Court issued “Provisions on Several Issues Concerning the Application of Laws in Handling Personal Protection Order Cases”, a judicial interpretation laying out when and how parties can apply for PPOs.
- For applications of PPOs, Chinese courts adopt a less demanding standard of proof when examining the evidence.
The Anti-domestic Violence Law of China (中华人民共和国反家庭暴力法) came into force in 2016. According to Article 23 of the Anti-domestic Violence Law, a party may apply with the court for a Personal Protection Order (PPO) on the grounds of domestic violence or the threat of domestic violence.
As of 31 Dec. 2021, Chinese courts have granted a total of 10,917 PPOs, which have prevented and stopped domestic violence or the recurrence thereof, thus protecting the personal safety and dignity of the victims suffering from domestic violence.
However, given that the PPO mechanism was introduced in China very recently, when faced with this new tool against domestic violence, Chinese society and Chinese courts are learning how to make the best use of this mechanism while preventing and solving concurrent problems.
In 2021, China’s Supreme People’s Court(SPC) conducted a survey on the implementation of the PPO mechanism, and discussed the relevant issues with the Women’s Federation, the public security authority, the department of civil affairs, and other relevant departments.
On this basis, the SPC issued a judicial policy and a judicial interpretation.
The judicial policy refers to the “Opinions on Strengthening the Implementation of Personal Protection Order Mechanism” (关于加强人身安全保护令制度贯彻实施的意见) jointly issued by the SPC, 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 in March 2022. In order to cooperate with each other, the foregoing seven departments have formulated detailed rules for the discovery mechanism, evidence collection mechanism and joint law enforcement mechanism regarding domestic violence.
The judicial interpretation refers to the “Provisions on Several Issues Concerning the Application of Laws in Handling Personal Protection Order Cases” (关于办理人身安全保护令案件适用法律若干问题的规定, hereinafter the “Provisions”), which came into effect on 1 Aug. 2022, and are the main idea of this post.
The gist of the Provisions is as follows:
1. A party can apply for a PPO only in the event of a divorce?
No.
The PPO procedure is of an independent nature. When a party applies with the court for a PPO, it does not need to file a divorce lawsuit or other lawsuits first, nor does it need to file a divorce lawsuit within a certain period of time after applying for a PPO.
2. Under what circumstances can a party apply for a PPO?
Domestic violence includes beating, binding, mutilation, restriction of personal freedom, frequent verbal abuse, and intimidation, as well as physical or mental abuse by offering barely enough clothes for warm-keeping/food for subsistence or frequent insults, slander, threats, stalking, and harassment.
It is noteworthy that the Provisions does not include sexual violence and economic control into the category of domestic violence.
The formulator of the Provisions explained that marital rape was still a controversial topic in China, and neither the legislature nor the judiciary had made its attitude clear. At present, there are few applications for PPO on the grounds of economic control, providing few samples for further research and rules formulation.
3. Under what circumstances can a third party apply for a PPO on behalf of the party concerned when the party concerned can’t do so him/herself?
A third party can apply for a PPO on behalf of the party concerned under any of the following three circumstances:
(1) where the party concerned is a person without or with limited capacity for civil conduct;
(2) where the party concerned is unable to apply for a PPO due to coercion, intimidation or other reasons; or
(3) where the party concerned, while wishing to do so, is unable to apply for a PPO due to seniority, disability, serious illness, or other reasons.
4. What kind of evidence should a party provide to prove domestic violence upon application?
The formulator of the Provisions indicated that given domestic violence is of a private and secretive nature, it is not easy to collect evidence of domestic violence. Moreover, because the victims are often in a disadvantageous position, they dare not collect evidence or are not aware of the importance of collecting evidence.
Therefore, the Provisions adopt a more tolerant attitude towards such evidence and deem the following evidence admissible:
(1) the party’s own statements;
(2) the warning letter of domestic violence, the decision of administrative punishment, and the handling record of domestic disputes or violence issued by the public security authority;
(3) the statement of repentance or guarantee issued by the respondent (i.e., the perpetrator of domestic violence);
(4) the audio-visual materials that record the occurrence or handling of domestic violence;
(5) the telephone recording, short message, instant messaging information, e-mail, etc. between the respondent and the applicant or their close relatives;
(6) the medical records issued by medical institutions;
(7) the complaints received by grass-roots governments and/or social organizations;
(8) the testimony of family members or neighbors; and
(9) the personal injury examination opinions.
In addition, the formulator of the Provisions holds that the PPO does not make a final judgment on the rights and obligations of the applicant and the respondent, nor does it make a final decision on the personal and property relations of the parties, such as kinship, property division, child custody and visiting rights, nor is it a punitive measure against the respondent.
The purpose of PPO is to stop the ongoing domestic violence and provide a "Chinese wall" for the victims.
Therefore, the court should adopt a less demanding standard of proof when examining the evidence.
5. Who is qualified as an applicant to be protected by PPO?
The following persons are qualified:
(1) Family members, including spouses, parents, children, siblings, grandparents, and grandchildren.
(2) Those living together other than family members, usually including daughter-in-law, son-in-law, and parents-in-law, as well as those living together due to custody, maintenance, and foster care.
Violence after divorce or after the termination of a relationship/cohabitation is not domestic violence. Therefore, the parties under such cases can’t apply for a PPO, and they can, of course, turn to the protection mechanism under the Civil Code.
Photo by Kevin Delvecchio on Unsplash
Contributors: Guodong Du 杜国栋
