Category Archives: Domestic violence

alternative dispute resolution, Domestic violence, Elderly law, judicial documents

Supreme People’s Court’s New Policy on Providing Judicial Services and Safeguards for the National Strategy on Aging

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In late March, the Supreme People’s Court issued its Opinion on Providing Judicial Services and Safeguards for Implementing the National Strategy for Actively Addressing Population Aging (Population Aging Opinion, 最高人民法院关于为实施积极应对人口老龄化国家战略提供司法服务和保障的意见).  The SPC issued a set of typical cases to illustrate specific issues for the lower courts and the general public, consistent with the developments discussed in my last blogpost.  The National Strategy itself is found here.  I have also found that the Asian Development Bank is providing technical support for the National Strategy, although it does not appear the technical support extends to legal aspects.  The National Strategy contains the core of some of the principal measures of the Population Aging Opinion. When I read the Population Aging National Strategy, I knew that the SPC would issue a corresponding judicial services and safeguards opinion because I noticed certain provisions related to the courts and knew (from writing an old blogpost) that the legal infrastructure related to the elderly, including the systems promoted by the courts, has lagged behind the needs of the aging population.

A brief summary of the Population Aging Opinion follows, along with a bit of background information and some very brief comments.

Background

It is one of the latest in a large number of “judicial services and safeguards” (also translated as guarantees) documents, usually issued in the form of opinions, that the SPC has issued in the Xi Jinping New Era.

Although this steadily growing group of SPC documents has not attracted much attention by either academics or practitioners, I take the view that they are worthy of further attention, as they illustrate a number of New Era themes. This blog has published a number of analyses of earlier judicial services and safeguards opinions and I have written two book chapters related to services and safeguards opinions as well. These opinions package related measures, some relating to substantive and procedural law and some related to administrative matters, as broadly understood. The SPC flags legal issues (relevant to the courts) in these opinions. What it flags imbeds the SPC’s analysis of the possible impact of the national strategy or policy on the courts and relevant measures needed to fulfill the obligations of the courts under the strategy or policy. The SPC tweaks judicial policy to respond to the implications of the national strategy or policy.  Follow-up measures implementing specific provisions are usual, as the Population Aging Opinion illustrates.

From having read the Shanghai Jingan District People’s Court 2020 White Paper on protecting the rights of the elderly,  knew that the SPC was aware that the aging of the Chinese population is having an impact on the court system, That court has had a specialized division focusing on the elderly for thirty years, although the title of the division has evolved along with related court policy I.  I recommend the White Paper to any readers who are interested in elderly-related issues in China.

Specialized focus on legal issues related to the elderly does not seem to be widespread either among practitioners or academics. From my inquiries with those teaching in Chinese law schools and in legal practice in China, elderly law is new.  The Ministry of Justice issued a notice on legal services for the elderly, but I surmise that the notice caught few persons’ attention with the nationwide concern about the spread of Omicron in China and lockdowns across many Chinese cities.

The SPC’s #1 Civil Division led the drafting of the Population Aging Opinion. That division that is in charge of “traditional” civil law matters, such as family law disputes (including inheritance, marriage, divorce, and support), as the explanatory press release was entitled as “a responsible person of the #1 Civil Division ” answers questions about the Population Aging Opinion. It is clear that the drafters also consulted with colleagues in other SPC divisions, as many provisions relate to matters outside the competence of the #1 Civil Division.  This type of package document effectively coordinates different divisions and offices of the SPC to work together toward fulfilling the SPC’s responsibilities in making the national strategy successful.

The Population Aging Opinion is relatively short, especially when compared to the Belt & Road-related Opinions.  It has three sections: the introductory one, framing the political background; the second, on maximizing adjudication functions; and the third, one on reform-related matters.

Political framing

The Population Aging Opinion is linked to last November’s National Strategy. This section is typical of the introductory section of services and safeguards opinions. It calls for courts to raise their political positions, adhere to the guidance of Xi Jinping thought,  and now that Xi Jinping legal thought has been canonized, implement those principles as relevant to the protection of the rights of the elderly.  Harmonizing with greater themes in Xi Jinping thought, the part relating to guiding ideology reiterates the importance of traditional Chinese values.   Those values are the “traditional Chinese virtues of filial piety and respecting the elderly.”  The range of disputes mentioned in the second part and the typical cases signal that traditional virtues of filial piety seem to be respected in the breach among some part of the Chinese population.

2. Maximizing adjudication functions

This section is the longest (as is typical with such documents) and a careful reader can easily see typical legal problems that appear in the Chinese courts that involve the elderly.  Typical of services and safeguards opinions, each article packages a number of sub-issues. This section includes articles on elder care, including services contracts and occupancy rights (Article 8); rights of rural elderly to land (Article 9); disputes over medical service contracts (Article 10); employment rights of the elderly (Article 11); cracking down on crimes against the elderly, including elder abuse and elder fraud (Article 12).

This analysis focuses on the following four groups of issues: 1) marriage and family cases; 2) inheritance; 3) domestic violence; and 4) guardianship issues.  Most of these issues are common to other societies around the world.

  1. Article 4 relates to marriage and family cases. The first sentence,  “cases regarding disputes over the support for the elderly shall be tried in accordance with the law to guarantee the basic living needs of the elderly” signals that many disputes relating to the elderly involve the failure of grown children to provide financial support for the elderly. This is also flagged in accompanying typical case #3 and other SPC typical cases.  The Population Aging Opinion calls for using mediation to encourage sons and daughters to provide “spiritual support” (such as visitation) for the elderly, an obligation now incorporated into the Civil Code. Because it reiterates that older people enjoy freedom of marriage,  it signals what the SPC states explicitly in the typical cases, grown children are too often interfering in the divorce of their parents or the second marriage of a parent.  The Jingan Court White Paper noted a steady increase in the number of divorces among the elderly:

The steady rise in the number of divorce disputes reflects, to some extent, the changing understanding of marriage among older people, whose expectations of “old age” are not only limited to making do with what they have, but are becoming more aware of the need to truly follow their heart and actively strive for their own happiness in their old age.

The last provision in Article 4 responds to the increasing number of property disputes involving elderly people who cohabit, reminding lower court judges to consider the period of time the couple lived together, the contributions made by both parties, the interests of both parties shall also be considered, and other factors so that these disputes can be fairly decided.

Article 5 relates to inheritance and wills and signals that the wishes of the elderly should be respected. It flags the system of estate administrators, now incorporated into the Civil Code, apparently a concept adapted from Taiwan’s legal system.  This recent article published by the Shanghai Bar Association has a useful update.

Article 6 relates to elder abuse, calling for the better protection of the personal safety and the property of the elderly, calling for better coordination among related departments.  The first typical case involves elderly abuse. Article 6 calls for improving guidance on the burden of proof for elderly victims, better linkage with psychological counseling, and priority status for victims of elder abuse.  A quick search of the public health literature finds studies on elder abuse in China, particularly in rural areas and among the less educated, and that Covid-19 has had a negative impact.  One study found that much of the abuse was either neglect or financial abuse. This article, summarizing and analyzing a survey by the national and local aging authorities, found that at least 60% of respondents reported some type of abuse, either physical, mental, intimidation, or violation of their legal rights.

Article 7 concerns guardianship.  It encourages the elderly to issue an advance guardianship directive.  It reflects special concerns about abuses committed by guardians when the elderly person is in some way capacitated and those who abuse the guardianship system for their own benefit, also reflected in typical case #2.

3. Reform measures

The third section of the Population Aging Opinion concerns judicial reforms to be applied to aging issues.  Among those are:

  • the Fengqiao experience (here referring to diversified dispute resolution), and integrating the resolution of elderly-related disputes in cross-institutional arrangements involving the courts at the basic level.
  • integration of socialist core values into the trial of cases involving the elderly: and family trial reforms.
  • The last article concerns improving case registration and other services related to elderly persons filing a case.  This article likely involved input from the SPC’s case registration division and some type of guidance, either publicly available or internal can be expected. Although the Chinese courts are promoting smart courts, this last article recognizes that many elderly either need in-person, phone, or other non-smartphone procedures, or an assistant to help them access court facilities.

Concluding comments

Many of the issues addressed in the Population Aging Opinion are not limited to China, whether it is elder abuse, abuse of guardianship, re-marriage of the elderly, employment rights of the elderly, or medical care contracts.  Elder law issues could possibly be a useful area in which the Chinese courts (perhaps in cooperation with one of the Chinese law schools), could engage with international specialists in a workshop setting and share experiences.  It is likely to be seen as an area of “foreign beneficial experience.”

Court Reform, Domestic violence

Family court comes to China

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imgresAs highlighted in a December,2015 post on this blog, and as Supreme People’s Court (SPC) Vice President Shen Deyong announced on 11 May, family courts are coming to China, or at least 100 pilot projects for them.  Family law cases have been heard within civil divisions of local courts, but there has been dissatisfaction with the way there are being heard.  In 2015, 1,733,000 marriage law cases were heard and about 84,000 inheritance cases.

Family law issues reflect the complexities of Chinese families today:

  • Divorce in major cities often touches on the rights to real estate whether debts are debts of one spouse or of the marriage;
  • Custody and maintenance are issues, particularly when maintaining an expensive life style is involved;
  • In rural areas, bride price and marriage by local customs rather than official registry is an issue.

Justice Shen stressed that family is the basis of society (echoing Confucius). The Women’s Federation, Ministry of Civil Affairs, Ministry of Justice, and Central Political Legal Committee were involved in this initiative. This reform has been piloted on a smaller scale in Guangdong province.  District courts in Shenzhen and Zhuhai have been early stage pilots.   The SPC issued a document to support the initiative which has not yet been publicly released (Notice of the SPC concerning some courts initiating pilot reform work in family court trial methods and work systems 最高人民法院关于在部分法院开展家事审判方式和工作机制改革试点工作的通知). ［Update–the document was eventually released–available here.]

This is an area in which the Chinese courts, including Supreme People’s Court is looking to jurisdictions outside mainland China (i.e., including the United Kingdom, Australia, Taiwan, Japan, and South Korea) for concepts that may be used in China.  Hong Kong law has not been mentioned as a model from which the mainland can transplant concepts, because, as this recent article published by a member of the University of Hong Kong Law Faculty details, Hong Kong family law and family law procedure is many years behind developments in Commonwealth countries, and it is an area in which Hong Kong’s executive led government has delayed introducing comprehensive legislation.  Ironically, in March, 2016, the SPC had discussions with Hong Kong’s Secretary of Justice on the issue of the recognition of judgments in the area of marriage and related issues.

Scope of the pilots:

  • matrimonial cases and related cases, including divorce, annulment, revocation of marriage;
  • custody, child support fees, property division after divorce, etc; maintenance disputes; paternity cases, including parent-child relationship to confirm or deny paternity;
  • adoptive relationship disputes;
  • cohabitation disputes, including the division of property during cohabitation, children born out of wedlock, and other dependents;
  • inheritance disputes.

The pilots will promote:

  • mediation as a way of resolving disputes;
  • personal appearance of parties in court;
  • putting the interests of the child first.

Issues with family cases that the Shenzhen judges have highlighted:

  • family law is not taken seriously as an area of law;
  • investigators are needed to support the judges;
  • lack of coordination with other authorities involved in family law issues;
  • burden of proof needs to change in family law cases, because otherwise it is difficult for the weaker party (generally the woman/elderly) to prove her case;
  • court performance indicators make it difficult to handle family law cases properly;
  • the courtroom set up must be changed to better accommodate family law disputes;
  • questions on handling family law issues that impinge on public policy/morality, such as inheritance by mistresses.

If the Confucian value of family as the basis of society is to be taken seriously the Chinese court system needs to show it by its actions. And the Chinese legal system will need to face the issue that family includes people who are gay/lesbians/transgender.

 

 

 

Commercial law, Domestic violence

Year end bonus from the Supreme People’s Court

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images-1As highlighted in the last blogpost, the Supreme People’s Court (SPC) is issuing all sorts of documents in the rush towards year end, far outpacing the time available to the Supreme People’s Court Monitor to analyze them.   Some of the recent developments that merit closer scrutiny:

  • more model/typical family law cases (incorporating the ones highlighted in an earlier blogpost) and with many more involving domestic violence and cohabitation issues;
  • 19 model/typical contract cases, including several private lending cases, real property cases, etc.
  • 14 model/typical food and drug crime cases, including one involving a supermarket (I had written this on food safety raids earlier this year;
  • Five model/typical cases of refusing to implement court judgments/rulings;
  • Two model/typical cases on non-payment of wages (this is an issue of high priority for the government;
  • Ten model/typical fraud cases;
  • Updated sentencing guidelines for a broad range of criminal cases, including rape, picking quarrels, and fraud;
  • Guidance from the head of the #2 criminal division on principles for applying the sections of the recent amendment to the Criminal Law on bribery and corruption (in which is likely to be incorporated into a future judicial interpretation);
  • An authoritative article by the SPC’s research office on the new terrorism crimes set out in the recent amendment to the Criminal Law;
  • approval by the SPC judicial committee (in principle) of the first judicial interpretation of the Property Law, which means most provisions are finalized, but the final draft is not set.  A recent draft discussed by the Civil Law Society was published recently. Several provisions address the issue of a “bonafide purchaser.”

 

Domestic violence, Elderly law, Family Law

Some typical Chinese family law cases in 2015

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dd9a8f4c1a39797ea5a7e4843c8a2724 (1)Each month (as highlighted this earlier blogpost), the Supreme People’s Court (SPC) issues typical cases at a press conference. In November, family law cases were the center of attention for a change and were briefly reported by the South China Morning Post.

This month’s typical cases were selected from the Beijing, Shandong, and Henan courts and are aimed at educating the general public rather than legal professionals.  The cases, statistics, and comments from the Supreme People’s judiciary  give a glimpse into the social, economic, and cultural changes that have affected Chinese families over the past 20 years and reflect the differences between rural and big city life.

Statistics

Judicial statistics is one of the areas slated for reform by the Court, which has the potential to improve (or not) the situation for analysts of the Chinese court system.

  • 4,000,000 family law cases have been heard in the past year and 10 months. President Zhou Qiang reported earlier this year that  1,619,000 family law cases were heard in 2014, accounting for about 30% of civil cases, which would mean that over 2 million cases had been heard in the first 10 months of 2015 (assuming the cases are classified the same way in both years).
  • 124981 family law cases have been heard in the Shandong courts this year, constituting about 24% of all civil cases.
  • In the Beijing courts, 38, 619 first instance family law cases were heard in 2014.

Issues for Chinese judges

The press release hinted at some of the difficult issues facing Chinese family law judges nationally, which are many of the same facing their counterparts in Shenzhen:

  • Division of property when spouses divorce, which means both division of family home(s) and family business(es).  Parents often provide some or all of the funds for the home, before marriage, and the controversial rule set out in the #3 Marriage Law Interpretation
  • Child custody;
  • Divorce after a second marriage.

Divorcing spouses are increasingly antagonistic, making it difficult for judges to mediate a settlement, which is the preferred resolution for Chinese judges.

Summaries of some of the 30 typical cases

Must engagement gifts be returned? A case from a rural court in Shandong

Zhang and Zhao were introduced by Zheng, and became engaged. Zhang gave Zhao 40,000 RMB cash, four rings, and other gifts as betrothal gifts (彩礼).  The couple did not marry, and Zhao refused to return the cash and gifts. Zhang sued in the Jining District Court.  At trial, Zhao returned the 4 rings.  The Jining Court ordered Zhao to return the cash but not the gifts.

The SPC commentary noted that although the cash and other items are in form a gift, the legal consequences are different, and according to the #2 Interpretation of the Marriage Law, the gifts must be returned. Article 10 (1) of that interpretation addresses this situation: if the court finds in pleadings a demand for the return of the betrothal gifts given to the other party according to the traditional practices because the parties fail to register their marriage, the people’s court shall uphold the demand.

Concealing property from ex-spouse (Beijing)

Sun and Li divorced in 2004.  The arrangements the couple made were that the wife Li would have custody of the child, the formerly state-owned housing would belong to the wife, and the business, cars, etc. would belong to the husband, who would provide alimony and child support.  In the process of demanding child support from Sun in 2014, Li discovered that Sun had bought property during the marriage, but had concealed that fact from her. She went to court to demand that ownership of the apartment be transferred to her name. Sun said that the apartment was bought when the couple was living apart, he had told her, the divorce settlement provided that the business, cars, etc. belonged to the husband and besides the statute of limitations had lapsed years ago.

The Changping District court decided that because the apartment had been bought during the marriage, it was joint marital property and Sun could not provide credible evidence that Li knew of the property during the marriage.  Therefore the statute of limitations argument failed. The court decided that ownership of the apartment should remain with Sun, but that Li was entitled to half of its market value, or 1,400,000 RMB.  The couple appealed to the #2 Beijing Intermediate Court which upheld the lower court.

The SPC commented that because traditional attitudes of marriage for life have changed, there are more and more divorce cases.  In this case,  because Sun concealed the purchase of the apartment, under Article 47 of the Marriage Law that when the court partitions the property, it could allocate less or no part to Sun.

Does the non-custodial parent of a child born to an unmarried couple have visitation rights? (case from a rural Henan court)

Wang and Chai were introduced and subsequently had a wedding celebration according to local customs, but never formally registered their marriage. They lived together and Chai gave birth to little Wang.  Thereafter the couple separated.  The couple went to the Xun County court to resolve their disagreements about the child.  The court decided that Chai should have custody of the child, until the child is old enough to express her preferences.  A month later Wang went back to court to demand visitation rights.

The Xun County court relied on Art. 38 of the Marriage Law, concerning visitation rights of the non-custodial parent in divorce to decide that the father could visit the child the first Sunday of each month from 9 am to 5 pm.

The SPC commented that visitation rights are a basic legal right of a non-custodial parent to have contact, visit, and live together for short periods, but visitation must be done in a way that does not affect the normal life and studies of the child.

Do the elderly have the right to support from their children? (a Beijing case)

Seventy seven year old Mrs. Liu was in poor health and in financial difficulties.  She sued her two children in Beijing’s Xicheng District Court to require them to provide her support in the amount of 900 RMB monthly.  The daughter said she had no income and the son said his after- tax income was only 6500 RMB and refused.  The court ordered the son to pay 800 RMB per month and the daughter 500 RMB (on the grounds that based on her work history she must have income).

The SPC commented that grown children have the legal duty to support their parents [under the Law on the Protection of the Rights and Interests of the Elderly], but the amount will depend on the elderly person’s cost of living, the health of the elderly person, and life style, and if the elderly person has several persons to look to, the amounts each will need to pay in support will depend on each person’s financial situation.

 

 

 

 

 

 

 

 

 

 

Domestic violence, Elderly law

Advocates for the elderly coming soon to Chinese courtrooms?

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circuit court protecting elderly rights (old man v. son)

In the middle of April, 2015, the Chinese courts carried a report on the issuance of a policy document (the full text is not yet available) by the Ministry of Justice and the National Committee for the Ageing (NCA) (a joint State Council/Party organization, as the Chinese version of the NCA’s website states) on establishing a system of lawyers and legal aid for the elderly.  Issues relating to representing the elderly in China mirror those in other parts of the world.

Although the Supreme People’s Court was not one of the institutions that issued the policy document, the national court system is affected by profound changes to Chinese society, including the greying of Chinese society, its urbanization, and other factors.  These cases are considered by the courts those relating to people’s livelihood, as discussed in previous blogposts.

The issuance of this document relates to Article 55 of the 2012 Law on the Protection of the Rights of the Elderly, which calls for elderly people to obtain legal assistance if they cannot afford a lawyer needed to defend their rights. The Chinese courts are facing a major increase in cases involving the elderly, both civil and criminal, involving psychological and physical abuse, as a study done by the Suzhou Intermediate Court illustrates.  It is likely that the Ministry of Justice and NCA did a more comprehensive study on the need for advocates for the elderly before issuing this document.

The Suzhou study, summarized in Legal Daily in the fall of 2014 gives an update concerning elderly-related disputes in wealthy Suzhou, where the elderly population has reached 23%:

  • From 2011 to 2013, the Suzhou courts accepted 1,100 civil cases involving the elderly. Those increased rapidly over the 3 years in question, because in 2013 586 cases were accepted, an increase of 102.77% over the previous year. The cases related to support, divorce, inheritance, and division of property rights.
  • in 2013, there was an 83% increase in civil cases involving the right to the division of property rights arising from land acquisition, with over 80% of the property division cases arising in rural areas;
  • Over 90% of the support cases arose in rural areas;
  • In 2013, there was a 183% increase in inheritance disputes involving the elderly;
  • In over 70% of the cases involving division of property rights from land acquisitions, elderly were forced to live in bicycle sheds, garages, or other unfavorable conditions.
  • In many cases, elderly are shunted back and forth between their grown children, who were fighting over valuable property rights held by elderly parents.

The domestic violence policy document issued in March, 2015, addresses criminal law domestic violence issues against the elderly, which are also rampant, as discussed in this earlier blogpost.

The policy document calls for a one month movement in October to focus on the establishment of probono legal service centers for the elderly.  A one month movement appears inadequate for the breadth and depth of this important social problem, which reveals that Confucian values concerning support and care for the elderly have landed in the dustbin of history in too many cases.  We look forward to hearing more detailed reports from law firms and NGOs on how the rights of over a hundred million Chinese elderly (anticipated to more than double by 2050) can be better protected.

Commercial law, Domestic violence

Shenzhen courts steer the way in divorce and shadow banking law

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u=2655505232,2779536896&fm=21&gp=0 The Shenzhen courts, dealing with the “new normal” in China’s social and economic changes ahead of the rest of the country, often find current legislation and Supreme People’s Court interpretations inadequate to deal with the issues that come before them. Divorce law and shadow banking (loans made outside the formal banking system) are two types of cases inundating the Shenzhen courts (and yes, there is a connection).

At the end of last year, the Shenzhen intermediate court issued local court guidance (with an accompanying explanation–these are not “interpretations of law”), binding only on the Shenzhen courts, on two important issues:

In Shenzhen, which is wealthy and where women are relatively rights conscious (at least in divorce), the local courts found that existing rules failed to deal with the issues that came before them regularly.Some of those issues include:

  • marital property (particularly rights to real property);
  • the business that a couple may have built up together;
  • children born outside the marital relationship, and
  • issues relating to cross-border marriages.

As in so many areas of Chinese law, legislation lags behind social reality.  The 2011 interpretation by Supreme People’s Court of the Marriage Law, as it relates to marital property, has been controversial both inside and outside of China, as highlighted by many articles and books addressing the issue because it has meant that in divorce, women often lost possession to home(s) to which they or their parents had contributed substantial funds.This has been particularly true in Shenzhen. The local intermediate court highlighted that over 80% of the divorce cases that are heard locally involve disputes over real property.   In divorces, women have continued to argue that they should be awarded possession of the home.

Another issue leading to disputes in and out of the courtroom is the practice of some courts. when dealing with divorces, to split ownership of the family business. The guidance directs judges to consider the family law issues only, and have the division of the business considered in separate proceedings.  These rules also contain provisions relating to Hong Kong, where there are many cross border marriages and couples whose lives and property  crisscross  the border. The court guidance, besides setting out new legal rules, provides a deep dive look into what goes on in many local marriages, judging from the rules relating to children born outside of the marital relationship.

banks turn off funding tap, shadow banking comes
banks turn off funding tap, shadow banking comes to the rescue

Shadow banking loans, which the Supreme People’s Court has finally recognized to be valid (if they meet certain conditions) constitute about 20% of civil disputes in the Chinese courts, according to President Zhou Qiang’s report to the NPC, and the numbers are even greater in Shenzhen.  In the court in the business district of Futian, for example, the statistics are as follows:

  • 2012: 1153 cases;
  • 2013: 1627 cases
  • first half of 2014: 976 cases.

The court guidance in substance an answer to FAQs of the Shenzhen courts on  the following questions (and many more):

  • what if the loan relates to a gambling debt?
  • What if one spouse lends money to a third party without informing the other spouse?
  • How can shadow banking be distinguished from the crime of illegal fund raising?
  • What if the legal representative of a company loans out company money in his own name?
  • What are the ceilings, if any on interest, penalties and other fees?

We can expect that the Supreme People’s Court will be monitoring the success of these rules in practice when issuing its next judicial interpretation in these areas.  And with the Supreme People’s Court Circuit Court (Tribunal) located in Shenzhen, it is likely that discussion of these issues occurs from time to time behind the scenes.

Domestic violence

Supreme People’s Court +3 attack domestic violence

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Unknown-2On 4 March 2015, the Supreme People’s Court hosted a press conference, attended by officials from the Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice, to announce their jointly drafted and long-awaited policy document (translation  here) on domestic violence, on which the Supreme People’s Court took the lead. (The Domestic Violence Law has not yet been promulgated. The intention is to create an effective anti domestic violence system, incorporating principles common to other jurisdictions as well as international domestic violence legislation. The United Nations, the American Bar Association, the Australian government, and many other international and national institutions and organizations have worked with the Supreme People’s Court and other Chinese institutions for many years on these issues, to assist the Chinese institutions to understand domestic violence law and practice elsewhere in the world.  This blog has highlighted earlier work by the Supreme People’s Court on domestic violence. Some of the highlights include:

  • Domestic violence includes violence between family members and others who live together in relationships, such as guardianship,support, foster care,  cohabitation (it intends heterosexual relationships and may (or may not include homosexual relationships).
  • The authorities need to intervene timely and efficiently, to protect the safety and privacy of victims;
  • Collect evidence of domestic violence in a timely manner, including objects on site, undertakings by the victim, witness statements, as well as from the community obtain medical records, photos, videos, and other evidence.
  • Respect the intention of the victims;
  • Provide special protection to juveniles, the elderly, the disabled, pregnant and nursing mothers, and the severely ill through legal assistance and other measures;
  • Encourage the community to report cases, including friends, neighbors, coworkers, hospitals, schools, kindergartens, and other institutions and entities;
  • The authorities (public security, procuratorate, courts) must protect the privacy of persons making accusations or reporting domestic violence who do not want their identity revealed;
  • The authorities must make arrangements to ensure the health and safety of victims;
  • If the accused aggressor is permitted to be out on bail, the aggressor can be order to stay away from the victim and juvenile children;
  • It sets out principles concerning the abused spouse/partner defense;
  • Cases must be quickly and efficiently investigated, accepted, and transferred (to avoid the “buckpassing” that occurs, to the detriment of victims);
  • In less serious cases, the authorities should make use of undertakings by aggressors not to commit the offense, apologizing to the victims, compensating the victim, and other non-criminal measure;
  • Courts should use measures to protect the safety of victims and other dependents, such as ordering the aggressor to leave the home, forbidding the aggressor from approaching the victim, and other protection orders.

The Supreme People’s Court also issued model/typical five domestic violence cases to illustrate issues such as:

  • domestic violence includes elderly violence;
  • domestic violence includes violence to children;
  • domestic violence includes violence to persons living together who are not married;
  •  domestic violence includes maltreatment to the point of causing the victim to commit suicide.

Comments

Many of the provisions of the opinion address outstanding problems that the Chinese justice system has in dealing with domestic violence–disregarding it as a “family matter,” revealing the identities of those who report it, recognizing beatings,forced  overwork, mental and physical torture as abuse.

This opinion is intended to deal with the many domestic violence issues that have arisen and which have caused a great deal of public controversy.  Implementing it will require a great deal of hard work, including a change in attitude among many in the police, prosecutors, and courts.

Domestic violence

Comment now on China’s draft Anti-Domestic Violence Law

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Unknown-2After at least 15 years of pressure by women’s groups, lawyers, and publicity in China, as well as by the international community, the draft Anti-Domestic Violence was issued by China’s State Council Legislative Affairs Office on November 25. It follows many years of academic and professional exchanges and international conferences on domestic violence legislation.  The timing may be to coincide with the UN’s Days of Activism Against Gender Violence.

The comment period is one month.  The draft is available here.  An English translation of the draft and official explantion has been prepared by Chinalawtranslate.com (thank you to the team). The translation of the draft is available here and the explanation here. The draft contains important content, including:

  • definition of domestic violence;
  • establish a domestic violence reporting system
  • protection orders;
  • requirements for courts in matters involving domestic violence;
  • local government establishment of domestic violence shelters.
  • Unmarried couples are not covered by the draft law (but by other legislation).  (Drafts of local legislation have also started with this position.  In Shenzhen, the Procuratorate advised against this, as mentioned in this earlier blogpost).

Comments may be made electronically at: fjtbl@chinalaw.gov. cn; or by mail at: Box 2067, Beijing, PRC 100035, attention Anti-Domestic Violence Law Consultation; (北京市2067信箱（邮政编码：100035),请在信封上注明“反家庭暴力法征求意见).

After the State Council finalizes the draft, it will submit it to the National People’s Congress (NPC), for further discussion and possibly more public consultation.  It appears passage of the law will come in 2015.  Once its passed, further legislation will be needed, including a judicial interpretation by the Supreme People’s Court, to address the evidentiary and other issues in the law.  Earlier posts on domestic violence are linked here, there, and there.  Local governments have started drafting their own legislation, including Shenzhen and Guangdong.

Domestic violence

The Supreme People’s Court on domestic violence legislation

1 Comment
copyright Shenzhen
(originally published here)

In its 29 August Wechat feed (which reproduced an article  published in the People’s Court Newspaper), the Court issued an update on domestic violence legislation, focusing on Shenzhen’s draft Anti-Domestic Violence Regulations (Domestic Violence Regulations).  The Domestic Violence Regulations have been incorporated into Shenzhen’s legislation plan and is intended to be adopted by year’s end.

The update highlights a conference earlier in August in Shenzhen that attracted over 160 experts from all over China to discuss an initial draft of the legislation.  Mark Obama also spoke at the conference.

It is likely that members of the group responsible for drafting the Court’s judicial interpretation on domestic violence participated in the conference.  As is often the case (and was noted in the update), Shenzhen is taking the lead in issuing promulgating legislation, serving as a pilot project for national legislation. Twenty nine localities have adopted domestic violence-related policies or local legislation.

Shenzhen domestic violence conference
Shenzhen domestic violence conference

This brief blogpost will highlight the following issues raised by the report:

  • Disturbing domestic violence statistics;
  • Details on the draft legislation; and
  • Status of the Court’s domestic violence judicial interpretation.

Domestic violence statistics

The above article and other articles reporting on the Shenzhen conference have provided disturbing statistics on domestic violence.

  • Domestic violence occurs in about 25% of Chinese families;
  • About 10% of juvenile offenders were raised in abusive families (statistics on this issue seem to vary widely);
  • 30% of victims of domestic violence in China (women, children, and elderly) are afraid to speak out against their abusers;
  • The Shenzhen Women’s Federation provided statistics on local (Shenzhen) domestic violence:
    • it occurs in 55 percent of Shenzhen homes among people aged 28-50;
    • 85.8 percent of violent incidents occur between married couples;
    •  93.9 percent of these are cases of husbands being violent towards their wives.
  • A examination of 300 cases reviewed by the NGO Beijing Children’s Legal Aid & Research Center revealed that:
    • 65% of children had been subject to corporal punishment;
    • of 32 cases of child sex abuse, 75% were committed by guardians, with about half committed by fathers.

 Draft legislation issues

Reports on the draft Shenzhen legislation have highlighted the following issues among others:

  • Scope of the persons protected by the legislation–whether persons living together, intimate partners, former spouses or partners should be covered–the initial draft of the Shenzhen Women’s Federation excluded these relationships.  Xu Ruishan, of the Shenzhen Municipal Procuratorate recommended that the legislation protect persons living together and former spouses from domestic violence, because of the prevalence of couples living together without marriage, while Professor Tao Lin, Secretary General of the Shenzhen Family Planning Association, recommended protecting intimate partners, because of the frequent violence in those relationships.
  • The type of domestic violence to be covered by the legislation, whether it should include economic, emotional, and sexual violence, as well as physical.

Status of the domestic violence judicial interpretation

Although the status of the Court’s judicial interpretation (discussed in an earlier blogpost) was not specifically addressed, in the article, Zhou Feng, the head of the #1 Criminal Division of the Court revealed his views that:

  • domestic violence offenses should be able to be either publicly or privately prosecuted;
  • a mandatory and voluntary reporting system should be instituted for entities and individuals who become aware of domestic violence (this is generally seen in domestic violence legislation internationally).

It may be that the timing of the issuance of the domestic violence judicial interpretation is related to the timing of the promulgation of national domestic violence legislation, but Court spokesmen have not been forthcoming on this issue.

Further details on the Shenzhen draft legislation

If anyone reading this blogpost has a copy of the draft Shenzhen legislation, attended the Shenzhen conference, or has further information on the status of the domestic violence judicial interpretation and is willing to share details about them, please use the comment function. Thank you!

And finally, the Supreme People’s Court Monitor thanks followers for their patience during the blog’s downtime. Future posts will address some of the many recent developments.

Domestic violence

Domestic Violence cases in the courts: an update from Shenzhen’s Luohu District Court

2 Comments
Protect yourself from domestic violence with a civil protection order
Protect yourself from domestic violence with a civil protection order

Luohu District Court

The Luohu District Court (the Luohu court), which hears cases arising from the primarily urban Luohu administrative district  in Shenzhen, in late March posted on its website (and Wechat account) an overview of  the 24 domestic violence cases that it has heard in the last 3 years.  The court identified four trends and “take-aways”:

  • there has been a trend towards an increase in the average age of abusers, from 31-45, to over 60;
  • the educational level and professional background of abusers has shifted to university educated, working in government agencies or foreign invested enterprises;
  • the type of domestic violence has shifted from simple physical violence to emotional and economic abuse, creating more evidentiary difficulties and analytical issues for the courts; and
  • the victims have become more aware of their legal rights.  Victims are moving away from traditional attitudes of accepting domestic violence as part of family life to using the law to protect themselves, and are calling the police when domestic violence occurs and applying for civil protection orders.

The Luohu court saw the following take-aways:

  • more psychological support should be provided locally, in residential areas, to prevent domestic violence from occurring;
  • local institutions for resolving domestic disputes should be strengthened; and
  • more should be done to make the public aware of domestic violence legislation.

This report from one district court reflects many of the messages about domestic violence being conveyed by the Supreme People’s Court.  Further reports on the drafting of the domestic violence interpretation are awaited, to see whether it will involve the procuratorate, public security, and other authorities.

Communist Party and the Courts, Domestic violence, Uncategorized

Supreme People’s Court Focuses on Domestic Violence

3 Comments
Domestic violence victim (photo from SPC website)
Domestic violence victim (photo from SPC website)

The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:

  • the seriousness of the problem;
  • 10 model cases;
  • a forthcoming judicial interpretation on domestic violence.

Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference.  The Court websites have published a number of domestic violence related articles in the past 3 weeks.  Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.

This blogpost will briefly explain:

  • the significance of the 10 model cases
  • some issues that should be incorporated into the judicial interpretation;

Some statistics about domestic violence in China

At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence.  He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.

The significance of the 10 model cases

Domestic violence graphic from SPC website
Domestic violence graphic from SPC website

These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.

Civil protection orders

China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue).  The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article).  The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.  

One model case involved a civil protection ordered issued to protect  an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.

The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
  • the elderly;  and
  • minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China.  Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.  
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.

Evidence

The Court is providing guidance for judges about what can be considered evidence of domestic violence.  Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence.  Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.

Types of domestic violence

In one case, the description of domestic violence was described as excessive use of house rules.  In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued.  In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.

Consequences of domestic violence

 In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody.  This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed.  This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.

Issues for the judicial interpretation

Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014.  Issues to be covered by the interpretation include:
  • defining domestic violence;
  • determining whether acts constitute domestic violence;
  • classification of different types of domestic violence;
  • more specific guidelines on criminal punishment for domestic violence;
  • evidence in domestic violence cases;
  • guidelines for imposing punishment on  victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts.  At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.   

Judicial training

After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly.  Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.

This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts.   Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence.  This article by a judge from a court outside of Kunming describes some of the issues.

At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here).  Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.

(The case analysis was provided by a contributor who wishes to remain anonymous)

Communist Party and the Courts, Domestic violence, Uncategorized

Supreme People’s Court Focuses on Domestic Violence

2 Comments
Domestic violence victim (photo from SPC website)
Domestic violence victim (photo from SPC website)

The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:

  • the seriousness of the problem;
  • 10 model cases;
  • a forthcoming judicial interpretation on domestic violence.

Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference.  The Court websites have published a number of domestic violence related articles in the past 3 weeks.  Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.

This blogpost will briefly explain:

  • the significance of the 10 model cases
  • some issues that should be incorporated into the judicial interpretation;

Some statistics about domestic violence in China

At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence.  He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.

The significance of the 10 model cases

Domestic violence graphic from SPC website
Domestic violence graphic from SPC website

These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.

Civil protection orders

China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue).  The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article).  The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.  

One model case involved a civil protection ordered issued to protect  an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.

The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
  • the elderly;  and
  • minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China.  Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.  
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.

Evidence

The Court is providing guidance for judges about what can be considered evidence of domestic violence.  Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence.  Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.

Types of domestic violence

In one case, the description of domestic violence was described as excessive use of house rules.  In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued.  In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.

Consequences of domestic violence

 In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody.  This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed.  This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.

Issues for the judicial interpretation

Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014.  Issues to be covered by the interpretation include:
  • defining domestic violence;
  • determining whether acts constitute domestic violence;
  • classification of different types of domestic violence;
  • more specific guidelines on criminal punishment for domestic violence;
  • evidence in domestic violence cases;
  • guidelines for imposing punishment on  victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts.  At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.   

Judicial training

After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly.  Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.

This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts.   Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence.  This article by a judge from a court outside of Kunming describes some of the issues.

At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here).  Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.

(The case analysis was provided by a contributor who wishes to remain anonymous)