Seven departments including the Supreme Law jointly issued the Opinions on Strengthening the Implementation of the Personal Safety Protection Order System.
According to the Supreme People’s Court’s WeChat WeChat official account, on March 5th, the Supreme People’s Court, together with 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 and Health Commission, jointly issued the Opinions on Strengthening the Implementation of the Personal Safety Protection Order System (hereinafter referred to as the Opinions). The background and main contents of the Opinions are as follows:
First, the background of the Opinions
The Anti-Domestic Violence Law of People’s Republic of China (PRC) (hereinafter referred to as the Anti-Domestic Violence Law), which was implemented in 2016, established a personal safety protection order system, stipulating that a party who has suffered from domestic violence or is in real danger of domestic violence may apply to the people’s court for a personal safety protection order. This system is of great significance for preventing and stopping domestic violence. In the six years since the implementation of the Anti-Domestic Violence Law, people’s courts at all levels have actively performed their duties, and the number of personal safety protection orders has increased year by year, effectively preventing and stopping the occurrence or recurrence of domestic violence. However, in recent years, there have been some problems in practice, such as the high threshold for issuing personal safety protection orders, the judge’s uncertainty about "facing the real danger of domestic violence" and the unclear responsibilities of relevant departments in the specific implementation of the personal safety protection order system, which have affected the effective play of the system. In order to implement the important exposition spirit of the Supreme Leader’s General Secretary on paying attention to the construction of family education style, in 2021, the Supreme People’s Court launched a special study on the implementation of the personal safety protection order system, aiming at the problems that frequently occur in practice and need to be solved urgently, perfecting and refining relevant regulations, and improving the strength and level of protection for victims of domestic violence.
II. Main contents of the Opinions
The "Opinions" consist of 20 articles, which stipulate the principles that should be followed in implementing the personal safety protection order system, the specific responsibilities of various departments, and the obligation to assist in execution.
(a) clearly implement the principle of personal safety protection order system should be followed.
Protecting the legitimate rights and interests of family members, especially women, minors, the elderly and the disabled according to law, is the requirement of thoroughly implementing the supreme leader’s thought of rule of law and the spirit of the important exposition of the supreme leader’s general secretary on paying attention to family education, maintaining equal, harmonious and civilized family relations and promoting family harmony and social stability. The people’s courts take a clear-cut stand against domestic violence and provide protection for the legitimate rights and interests of victims of domestic violence by judicial means. The Opinions clarify that the implementation of personal safety protection orders should be guided by Socialism with Chinese characteristics Thought of the Supreme Leader in the New Era, adhere to the principle of protecting victims in a timely and effective manner according to law, adhere to the principle of protecting the privacy of the parties, and adhere to the principle of respecting the true wishes of the victims.
(2) Pay more attention to the protection of minors’ rights and interests.
The Civil Code has made provisions that are "most beneficial" to the ward and the adoptee, respectively, in cases involving minors such as guardianship and adoption. The Law on the Protection of Minors, revised in 2020, will also adhere to the principle of being most beneficial to minors. The Opinions actively implement the legal spirit of policies related to the protection of minors, give special and priority protection to minors, clearly implement the personal safety protection order, and also adhere to the principle of being most beneficial to minors. With regard to minors’ receiving inquiries and giving testimony, it is specifically stipulated to provide them with a suitable place environment and not to testify in court, giving full consideration to the physical and mental characteristics of minors and respecting their personal dignity.
(3) Refine and clarify the contents of compulsory reporting obligations of relevant departments.
In practice, victims of domestic violence are unable to take legal weapons to protect their legitimate rights and interests because they don’t know or dare to apply for personal safety protection orders. The timely intervention of relevant government departments is of great significance for the timely protection of victims of domestic violence. To this end, the Opinions stipulate that civil affairs departments and medical institutions should report to the public security organs in a timely manner when they find that people with no or limited capacity for civil conduct have suffered or are suspected of suffering from domestic violence during their work and diagnosis and treatment; Schools and kindergartens should report to the public security, civil affairs, education and other relevant departments in a timely manner when they find that minors have suffered or are suspected of suffering from domestic violence, and give full play to the joint efforts of various departments to jointly protect the legitimate rights and interests of victims of domestic violence. In addition, the Opinions also require judicial administrative organs to increase legal aid to victims of domestic violence, unblock channels for applying for legal aid, and help victims of domestic violence use legal weapons to protect their rights and interests.
(four) detailed personal safety protection order execution procedures.
Article 32 of the Anti-Domestic Violence Law stipulates that the personal safety protection order shall be executed by the people’s court, and the public security organs, residents’ committees and villagers’ committees shall assist in the execution. However, this provision is relatively principled, and how to enter into enforcement after the personal safety protection order is made and how to assist the enforcement department need to be further refined and implemented. The execution of personal safety protection orders can be divided into two categories: one is the execution as an obligation, such as "the respondent moves out of the applicant’s residence"; The other is the execution of the obligation of omission, such as "prohibiting the respondent from harassing, stalking or contacting the applicant and its related close relatives". For the obligation of omission, it is not necessary for the parties to apply for enforcement, but if the respondent violates the personal safety protection order, the applicant may apply to the people’s court for enforcement; If the respondent fails to perform the obligation of conduct, the applicant may apply to the people’s court for compulsory execution. The Opinions clarify that if the respondent fails to perform or violates the personal safety protection order, the applicant may apply to the people’s court for enforcement. The Opinions also specify the obligations of public security organs, residents’ committees, villagers’ committees, women’s federations and other relevant units to assist in the implementation. Among them, the public security department not only helps to supervise and urge compliance with the personal safety protection order, but also needs to inform the people’s court of the situation when the respondent violates the personal safety protection order in time, so as to truly realize departmental linkage.Residents’ committees, villagers’ committees and women’s federations can give full play to their advantages in resolving contradictions and disputes, track and record the implementation of personal safety protection orders, provide legal education and psychological counseling, and help victims contact the people’s courts and public security organs in time to effectively mobilize the vitality of the coordinated anti-domestic violence linkage mechanism of various departments.
In the next step, all departments will strictly implement the provisions of the Opinions and effectively implement the system of personal safety protection orders.
Attached:
The Supreme People’s Court All-China Women’s Federation, Ministry of Education, Ministry of Public Security, Ministry of Civil Affairs, Health and Health Committee of Ministry of Justice, Opinions on Strengthening the Implementation of Personal Safety Protection Order System
In order to further prevent and stop domestic violence, protect the legitimate rights and interests of family members, especially women, minors, the elderly and the disabled, maintain equal, harmonious and civilized family relations, and promote family harmony and social stability, we hereby put forward the following opinions on strengthening the implementation of the personal safety protection order system:
First, adhere to the guidance of the Supreme Leader Socialism with Chinese characteristics Thought in the new era. Thoroughly implement the supreme leader’s thought of rule of law and the important exposition spirit of the general secretary of the supreme leader on paying attention to the construction of family education style, actively cultivate and practice socialist core values in the family, cultivate good family style, carry forward family virtues, and prevent and stop domestic violence to the maximum extent.
Second, adhere to the principle of legal, timely and effective protection of victims. All departments should continue to increase assistance to victims of domestic violence in terms of temporary shelter, legal aid and judicial assistance, and establish a multi-level, diversified and three-dimensional assistance system. It is necessary to deeply understand the private and sudden characteristics of domestic violence, improve the evidence awareness of victims of domestic violence, and guide them to save and submit evidence in time according to law.
Third, adhere to the principle of respecting the true wishes of the victims. All departments should listen to the victims’ opinions on what kind of safety protection measures to take, whether to apply for a personal safety protection order, and how to deal with the perpetrators in accepting complaints, reflections, seeking help, accepting cases and referring them for disposal, so as to increase psychological counseling for the victims.
Fourth, adhere to the principle of protecting the privacy of the parties. All departments should pay attention to protecting the privacy of the parties, especially minors, in accepting cases, assisting in execution and fulfilling compulsory reporting obligations. If the victim has moved out of the common residence with the offender, the victim’s whereabouts or contact information shall not be informed to the offender, and the current residence of the victim shall not be listed in the relevant documents and receipts. Personal safety protection orders shall not be made public in principle.
Fifth, promote the establishment of a coordinated anti-domestic violence work mechanism among various departments. Actively promote the prevention and control of domestic violence into the comprehensive management system of social security, and give play to the role of the evaluation mechanism of safe construction. Improve the anti-domestic violence work system in which people’s courts, public security organs, civil affairs departments, judicial administrative departments, education departments, health departments and women’s federations participate. Make full use of the achievements of informatization construction and strengthen the collaborative sharing of data among departments. Explore accurate tracking and real-time supervision through special project files and graded early warning.
Six, the public security organs should strengthen the concept and consciousness of intervening in domestic violence according to law, strengthen the handling of domestic violence police, strengthen the warning to the perpetrators, and issue a warning book on domestic violence according to the law. Pay attention to the collection and fixation of evidence, actively cooperate with the people’s courts to obtain evidence according to their functions and powers, and provide police records, warnings, inquiry (inquiry) transcripts, etc. Conditional places can establish a domestic violence alarm linkage mechanism and a warning notification mechanism with people’s courts, civil affairs departments, women’s federations, etc.
Seven, the civil affairs department should strengthen the training and guidance of residents’ committees, villagers’ committees, social work service agencies, relief management agencies, welfare institutions, etc. Residents’ committees, villagers’ committees, social work service agencies, rescue management agencies, welfare agencies and their staff members who find that people with no capacity for civil conduct or with limited capacity for civil conduct have suffered or are suspected of suffering from domestic violence in their work shall promptly report to the public security organs. Implement the "Guiding Opinions on Doing a Good Job in Shelter and Assistance for Victims of Domestic Violence", strengthen the construction of temporary shelters and the allocation of personnel and funds, and provide timely assistance services such as referral and resettlement, legal aid and mediation of marriage and family disputes for victims of domestic violence.
Eight, the judicial administrative department shall increase the intensity of legal aid for victims of domestic violence, unblock the channels for applying for legal aid, and improve the service network. According to the actual situation, all localities can establish legal aid workstations or contact points relying on local women’s federations to facilitate domestic violence victims to seek legal aid nearby. Strengthen the publicity of laws and regulations such as the law on domestic violence, the law on the protection of minors, the law on the protection of women’s rights and interests, and the law on the protection of the rights and interests of the elderly. Give full play to the advantages of people’s mediation, do a solid job in the investigation and resolution of marriage and family disputes, and prevent domestic violence.
Nine, medical institutions in the process of diagnosis and treatment, found that the injured may suffer from domestic violence, to do a good job in the information registration and diagnosis and treatment records of the injured, the chief complaint, injury and treatment process of the injured, accurate, objective and comprehensive records in the medical records. The establishment of medical and police linkage mechanism, in the process of diagnosis and treatment, it is found that people without civil capacity or with limited civil capacity have suffered or are suspected of suffering from domestic violence, they should report the case to the public security organ in time, and actively cooperate with the public security organ to do a good job in collecting medical diagnosis and treatment data.
Ten, schools and kindergartens should strengthen the publicity and education of the law on the protection of minors, the law on the prevention of juvenile delinquency, the law on domestic violence and other laws and regulations. Pay attention to the cooperation between home and school and home. If minors are found to have suffered or suspected to have suffered domestic violence, they should report to the relevant departments of public security, civil affairs, education and so on in a timely manner according to the Provisions on the Protection of Minors’ Schools. Pay attention to protecting the privacy of minors and strengthen psychological counseling and intervention.
Eleven, the people’s court shall establish a "green channel" for accepting cases of personal safety protection orders, increase the intensity of obtaining evidence ex officio, and make personal safety protection orders in a timely manner according to law. The grass-roots people’s courts and their dispatched people’s courts shall provide litigation guidance services for the parties to apply for personal safety protection orders in the filing hall or litigation service center.
Twelve, adhere to the principle of the most beneficial to minors. All departments should fully consider the physical and mental characteristics of minors when listening to the opinions of minors or making inquiry records on the facts of domestic violence, provide suitable places and environments, and adopt inquiry methods that minors can understand to protect their privacy and safety. When necessary, psychological counselors or social workers can be arranged to assist in the work. In the case of personal safety protection order of minors as victims, the people’s court may notify legal aid institutions to provide legal aid for them. Minor children who provide testimony as witnesses may not testify in court.
Thirteen, all departments in the process of accepting domestic violence complaints, reflecting, seeking help or dealing with marriage and family disputes, found that the parties suffered from domestic violence or faced with real danger of domestic violence, should take the initiative to inform them that they can apply to the people’s court for personal safety protection order.
14. After making the personal safety protection order, the people’s court shall serve it on the parties concerned within 24 hours, and also on the local police station, residents’ committee and villagers’ committee. It may also serve it on local women’s federations, schools, organizations for the protection of minors, disabled persons’ federations and organizations for the elderly established according to law as appropriate.
15. When the people’s court serves the personal safety protection order, it shall pay attention to explanation and persuasion education, urge the respondent to abide by the personal safety protection order, and inform him of the legal consequences of violating the personal safety protection order. If the respondent fails to perform or violates the personal safety protection order, the applicant may apply to the people’s court for compulsory execution. If the respondent violates the personal safety protection order, which does not constitute a crime, the people’s court shall give an admonition, and may impose a fine of not more than 1,000 yuan and detention of not more than 15 days according to the seriousness of the case.
16. When the people’s court serves the personal safety protection order, it may serve a notice of assistance in execution to the local police station, residents’ committee, villagers’ committee, women’s federation, school, etc., and the notice of assistance in execution shall clearly state the assistance matters. The relevant units shall provide assistance in accordance with the contents of the notice of assistance in execution.
17. Within the validity period of the personal safety protection order, the contents that the public security organ can assist in implementing may include: helping to urge the respondent to abide by the personal safety protection order; In the period of validity of the personal safety protection order, if the respondent violates the personal safety protection order, the public security organ shall promptly call the police after receiving the police to stop the illegal act; Rescue and protect the victims after receiving the alarm, and collect and fix evidence; If the respondent is found to have violated the personal safety protection order, the people’s court shall be informed of the situation.
18. Within the validity period of the personal safety protection order, the contents that residents’ committees, villagers’ committees, women’s federations, schools, etc. assist in the implementation may include: conducting regular return visits and tracking records within the validity period of the personal safety protection order, filling out return visits or records, and giving feedback to the people’s court after being signed by the parties concerned; If the respondent is found to have violated the personal safety protection order, he shall be criticized and educated, fill in the feedback form, and help the victim to contact the people’s court and the public security organ in time; Educate the perpetrators by the rule of law, and provide psychological counseling to the perpetrators and victims when necessary.
Nineteen, all departments can explore the introduction of social work and psychological counseling mechanism in the process of accepting complaints, reflecting, asking for help or dealing with marriage and family disputes related to domestic violence, so as to alleviate the psychological trauma of victims and minor children, correct the cognitive and behavioral deviation of abusers, avoid the escalation of violence, and fundamentally reduce the occurrence of vicious incidents.
Twenty, all departments should fully understand the significance of the personal safety protection order system, increase the intensity of study and training, be familiar with the subject of personal safety protection order application, make procedures and assist in the implementation of the specific content, etc., and strengthen the publicity of personal safety protection order system.