Big data update on contested divorces in China

Recently, the Supreme People’s Court (SPC) Judicial Cases Research Center (最高人民法院司法案例研究院)(affiliated with the National Judicial College) issued a big data report on contested divorces in 2016-17, a follow up to their report of 18 months ago (the charts below are from the report). The report was done in conjunction with the SPC’s big data center. The Judicial Cases Research Center publishes big data reports occasionally, some in the form of this report.

As noted in earlier blogposts, the 4th Judicial Five Year Plan calls for reforms in judicial statistics:

Reform mechanisms for judicial statistics with the idea of “big data, big picture, and big service” as a guide; make a system of standards for judicial statistics that has scientific classifications and complete information, gradually building a model for analysis of empirical evidence that complies with the reality of judicial practice and judicial rules, and establish a national archive of court judgment opinions and a national center for big data on judicial information.

As I discuss in one of my forthcoming articles,  the language quoted above contains no commitment to release to the public any of this new and improved big data, but careful observation has revealed that some of the more detailed big data from the SPC big data center is being published in one of the SPC’s academic journals.

It shows that in 2017, first instance contested divorces exceeded 1,400,00, somewhat more than in 2016.

Screen Shot 2018-04-23 at 5.32.27 PMAlmost three quarters (73%)of the plaintiffs in first instance divorce cases were women.Screen Shot 2018-04-23 at 5.39.20 PM

Mostly couples sued for divorce on the basis that they no longer were compatible, and in about 15% of cases domestic violence was alleged.

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Domestic violence was alleged most often in Guangdong, Guizhou and Guangxi.

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Most of the domestic violence alleged was physical violence.Screen Shot 2018-04-23 at 5.44.43 PM

In the first instance divorce cases, 91% of the domestic violence was committed by men on women.

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Family court comes to China

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.

 

 

 

Supreme People’s Court +3 attack domestic violence

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.

The Supreme People’s Court on domestic violence legislation

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

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.

Supreme People’s Court Focuses on Domestic Violence

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)