Seven highlights of the new personal safety protection order

· Editor's

The highlights of the "Supreme People's Court on Several Issues of the Application of Laws on the Application of Personal Safety Protection Cases" announced on July 14, 2022, emphasizing that the protection order is an independent case, improved the application system of the protection order, expanded the enumeration of the family to the family The specific types and types of behavior of violence have clarified the scope of adjustment stipulated in Article 37 of the Anti -Family Violence Law, replenished the provisions of the evidence and proof rules in the protection order case, and increased the regulations on the applicant's applicable online lawsuit. The criminal legal responsibility that violated the protection order was clear, and the implementation of the protection order was strengthened.

■ Qi Jianjian

The provisions of the Supreme People's Court on the Supreme People's Court on the Application of Laws on the Application of Personal Safety Protection Cases (hereinafter referred to as the "Protection Order Regulations") announced by the Supreme People's Court will be implemented from August 1, 2022. This provision has not only sorted out the long -term experience of protecting the trial practice experience, but also promoted the further development of the theory and practice in the lawsuit law, the physical law, and the evidence law.

First, the "Protection Order Regulations" pointed out that the application for the protection order is not based on civil lawsuits such as divorce, emphasizing that the protection order is independent and independent cases. Since March 2016, the Anti -Family Violence Law has become the legal basis for the protection order. The nature of the protection order is independent cases. It is no longer litigation preservation, nor is it attached to other litigation cases. In 2016, the "Notice of the Supreme People's Court on Determining Personal Safety Protection Cases and its types" stipulates that a secondary type of case is added in civil cases, namely "personal security protection order cases", and "civil insurance orders", "civilian", "civilian", "civilian order", "civilian", "civilian", "civilian", "civilian", "civilian", "civilian", "civilian", "civilian", "civilian", "civilian", "civilian", "civilian", "civilian order", "civilian people" The "two tertiary cases of the two three -tier types; in July 2016, the" Approval of the Supreme People's Court on the Related Procedure of Personal Safety Protection Cases "clarified that the case does not charge litigation costs and does not need to provide guarantees. If the parties who apply for a case of family case cases apply for a protection order, the trial organization of the case rules that if the applicant has no family case lawsuit, the judge will be tried exclusively; The first -level case is the "case of non -litigation procedures cases", independent of "personality disputes", "marriage and family, inheritance disputes". "". The "protection order" emphasizes the independence of the protection order, clarifies the legal basis of the protection order, highlights its nature as a non -litigation procedure and special procedure, and is conducive to the understanding and application of the protection order.

Second, the "protection order" improves the application system for the protection order. Article 23 of the Anti -Family Violence Law stipulates that those who have no capacity for civil behavior and restrict the ability of civil behavior, or cannot apply for a personal safety protection order due to force, intimidation, etc. Resident committees, villagers' committees, and rescue management agencies can apply for. Under the new regulations: First, the increase stipulates that three obvious independent application capabilities of age, disability, and serious illnesses can be used to apply for the application of the protection order, which can help the elderly, disabled people, and serious patients in time to protect them; Secondly, the scope of institutional personnel who applied for the protection order not only increased the three institutions of the civil affairs department, the Disabled Federation, and the elderly organizations established according to law. And openness will help relevant institutions and personnel who have not been clearly listed to protect the victims, such as the protection organization of minors; and third, respect the wishes of the parties. These regulations fully reflect the value orientation centered on the victim.

Third, the "protection order" expands the specific methods and types of behavior of domestic violence. On the basis of Article 2 of the Anti -Family Violence Law, it has added six types of violence or harassment of frozen hunger or frequent insults, slanders, threats, tracking, and harassment. It is open, and the judge determines that there is room for tailoring when domestic violence. In addition, the "Protection Order Regulations" shall be specified in other protection measures stipulated in Article 29, paragraph 4 of the Anti -Family Violence Law, and can prohibit the insulting the applicant and its relevant relatives of the defamation threatening threatened by telecommunications and other methods. And the frequent exit places of related close relatives can conduct activities that may affect their normal life, study, and work within a certain range. This is a summary of the experience of trial practice. It is not only the refinement of the existing prohibition of harassment, tracking, and contact with the anti -domestic violence law, but also further supplemented the method of violations and behaviors of domestic violence.

Fourth, the adjustment scope of the law regulations stipulated in Article 37 of the Anti -Family Violence Law covers the "person who lives outside the family members" and "protection order provisions" to clearly clear it as nine people. Generally, the daughter -in -law, son -in -law, in -laws, father -in -law, father -in -law, and other people with monitoring, raising, and fostering are included. The "Protection Order Regulations" incorporate the common regulations on the basis of the fact that the common relationship between daughter -in -law, son -in -law, aunt, and father -in -law, etc. who live together in the protection order is a supplementary regulation based on the full consideration of the real life of our country, which will help Effective implementation of the protection order.

Fifth, the "Protection Order Regulations" make supplementary regulations on the evidence and proof rules in the protection order case, which helps improve the proof ability of the victim and improve the issue rate of the protection order. As of now, insufficient evidence is the most important influencing factor in the low issuance rate of my country's protection order. In response, the "protection order provisions" made a corresponding exploration: First, the court emphasizes the investigation of the court's authority, and the court can apply for evidence or the evidence that the applicant cannot collect itself due to objective reasons. Second, adjust and reduce the standards for proof of the protection order. The "Protection Order Regulations" reduce the standards of the case of the case to a greater possibility, which is conducive to the protection of the applicant to complete the proof of the proof. Third, the "Protection Order" lists more than ten kinds of relevant evidence that can be used as the basis of the court's determination of facts. Among them, only complaints reflect the records of help records, civil affairs, village neighborhood committees, women's federations, disabled federations, unburrelated organizations, elderly people More than ten kinds of institutions such as organizations and anti -domestic wisdom organizations have greatly expanded the source and scope of evidence materials, making the evidence open and wide. Fourth, the respondent recognized that there were domestic violence, but if the applicant had faults, it would not affect the court to make a protection order according to law. These regulations are conducive to the victims to prove the actual needs of domestic violence or their real risks, and more adaptable to the practical needs of the trial practice of domestic violence. Sixth, the "protection order provisions" and Article 16 of Article 16 of the Civil Procedure Law in 2021 have increased regulations on the applicant's applicable online litigation. The first is that the court can inquire the respondent through the online litigation platform. According to Article 16 of the Civil Procedure Law, civil litigation activities are carried out online through information network platforms, and they have the same legal effect as offline litigation activities; second, in accordance with the "protection order provisions", the court can also pass phone, SMS, and instant messaging tools through telephone, text messages, and instant messaging tools. Ask the respondent such as e -mail and other simple ways; third, if the respondent did not express his opinions, it would not affect the people's court to make a protection order according to law. This provision echoes the 2016 "Approval of the Supreme People's Court's Case Related Procedures for Personal Safety Protection Cases". Decisions. The provisions on online lawsuits and the respondent opinions conform to the urgency of the protection order as a special procedure, which is conducive to avoiding procedure delays in cases that are not in the respondent, do not appear, do not express opinions, and make timely protection orders.

Seventh, the "Protection Order Regulations" clarify the criminal legal liability that violates the crime of refusing to be dedicated to violate the protection order and meets the crime of refusal, and strengthen the implementation of the protection order. According to Article 313 of the Criminal Law, the crime of refusal is a behavior of those who have the ability to implement the duty of the court's effective referee and have the ability to implement and have serious circumstances. According to the provisions of Article 2, 3, (3, (3, (3, (3, (3, (3), which was revised in the "Supreme People's Court on the trial refusal to implement the judgment and the application of criminal cases to apply for a criminal case, it was serious about the circumstances of refusing to move out of the house and that the ruling could not be enforced. It can be seen that the court made by the court based on Article 29, paragraph 3, paragraph 3 of the Anti -Family Violence Law, that as long as the respondent refused to move out, he could constitute a crime of refusal. In the same way, for the prohibition of violence or contact orders, etc., as long as the respondent violence or harassment of tracking contact, the circumstances can also constitute a crime of refusal.

In summary, the "protection order" helps solve the problems of the protection order to apply, proof, identification, and execution in practice to effectively protect the rights and interests of the victims.

(The author is an associate researcher at the Institute of Law of the Chinese Academy of Social Sciences)

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