In the anti-domestic violence law, the issue of the entry of mental, cohabitation and even sexual violence has become a hot focus of media and committee members attention and discussion. However, there are no relevant reports on the rules of proof in the Personal Security Protection Order (Protection Order).. Actually, what does domestic violence certification in a protection order case need to prove? How much is the certification requirement? How should it be proved? That is, what is the object, standard and method of certification?
Article 26 of the Draft Anti-Domestic Violence Law of the People s Congress (hereinafter referred to as the Draft of the National People s Congress) stipulates that one of the conditions for making a protection order is: the party suffers from domestic violence or faces the real danger of domestic violence. From this provision, it can be inferred that the drafters of the draft used domestic violence and danger of domestic violence as optional objects of proof of domestic violence in protection order cases. Among them, the domestic violence risk is future domestic violence, and the domestic violence certification object of protection order cases should be unquestionable. Because a protection order is made to prohibit the respondent from engaging in domestic violence, the purpose is to prevent the occurrence of future domestic violence so as to prevent the applicant s personal, including mental, from domestic violence. The future domestic violence has not yet occurred, and is naturally only in the dangerous domestic violence state. Therefore, it is logical to use the domestic violence danger as a proof of protection order case.
However, domestic violence is previous domestic violence, and is it appropriate to be the subject of a protection order case together with domestic violence danger that belongs to future domestic violence. Is the domestic violence case generally divided into three categories and five Species: The first type is punishment-type domestic violence cases, including domestic criminal cases that are pursued criminally, and the domestic violence cases that are punished by public security; the second type is compensation-type domestic violence cases, including injury compensation domestic violence cases, and divorce compensation domestic violence cases. Cases; the third type of defensive domestic violence cases, protection order cases belong to this type of domestic violence cases. The first two types of domestic violence cases are accountable domestic violence cases of Previous domestic violence and should be subject to domestic violence as proof. The significance of the pr otection order system is not to blame previous domestic violence, so it seems inappropriate to use subject domestic violence that belongs to previous domestic violence as proof.
However, there is a saying in the law: The law is not intended to make fun of, and the judiciary must explain the law in good faith. Therefore, if the draft of the National People s Congress is passed and the former Article 26, item 3 is intact, then it is necessary to reasonably understand the legal proof of the protection order case of domestic violence: the applicant has domestic violence According to the periodic characteristics of domestic violence, the domestic violence of the respondent may come again. Understood in this way, there is a certain (incidental) causal relationship between being subjected to domestic violence and danger of domestic violence (continuation of domestic violence), and being domestic violence is one of the ways to prove danger of domestic violence. In view of this, the object of certification of protection order cases can be divided into two levels: domestic violence is the primary or basic proof object of protection order cases, and dome stic violence is the ultimate proof object or subject certification object.
The standard for proving domestic violence is the core content of the rules for proving domestic violence cases. Among the different types of domestic violence cases mentioned above, the national punishment case for domestic punishment is the most stringent, and it should meet the requirements of clear facts and sufficient evidence, especially for domestic violence in criminal cases.. The domestic compensation certificate of civil compensation category is only required to reach the degree of advantage certification, that is, it is highly probable. In addition, in the case of domestic matters such as marriage, because the domestic violence is usually hidden, it is difficult for victims to obtain evidence on their own. Therefore, it is necessary to increase the involvement of authority to obtain evidence, and to introduce proof rules to reduce the difficulty of proof of victims domestic violence. However, protection order cases should not copy the standards for the two types of domesti c violence cases. It is necessary to establish standards for domestic violence that are appropriate to their characteristics.
As mentioned earlier, the purpose of a protection order is to prevent “future domestic violence” and not to punish or hold accountable for “previous domestic violence”. Furthermore, a protection order is a civil writ in nature, and a civil writ is usually not related to the substantive trial of the case, and does not directly correspond to the occurrence of the subject of the lawsuit. Therefore, there is no generation of a so-called convicted matter, and no legal relationship will occur. Change may be eliminated. In other words, the protection order does not have the res judicata and formation as the judgment. Therefore, it does not involve the disposition of the entity s rights and legal responsibilities, and the determination of the danger of domestic violence ”On which it is based does not have de facto pre-determination. Based on this, the standard of proof of domestic violence in a protection order case only requires that the judge be able to form a basic level of conf idence that the risk of domestic violence reaches a low degree of probability, that is, a weak advantage of more than 50%.
Of course, issuing a protection order based on this certification standard may cause certain errors, restricting or prohibiting the respondent s specific behavior related to the implementation of domestic violence, which will also adversely affect it. However, when the respondent s freedom of conduct and the applicant s personal safety may conflict, protecting greater interests is the value orientation of the law and the basic position of the judiciary. This is also the common sense requirement that both harms are taken lightly and prepared, not to mention the legal basis of purpose justification. Looking back at Article 26 of the draft of the National People s Congress, the standard of protection provided for the domestic violence certification standard in cases is obviously too high. Because the words suffer, face , and reality are clearly objective, they can even be linked to the reliability and fullness of criminal proof. Therefore, this article proposes to change th is standard to a weak advantage standard with low probability.
First, the applicant submitted preliminary evidence of a domestic violence certificate. Applicants must submit preliminary evidence to prove the domestic violence risk, including indirect evidence related to the domestic violence risk such as a photo of the injury, a report report, and a witness testimony. Needless to say, if the applicant has direct evidence of the domestic violence against the respondent, of course, it is better, but as a requirement for the applicant to provide evidence, it cannot be directly evidence but only preliminary evidence that is indirect evidence. It should also be pointed out that the Public Security Organ Police Records, Warning Letters, Injury Appraisal Opinions, etc. as stipulated in Article 20 of the draft of the National People s Congress is only evidence that domestic violence can be used and is not limited to these evidences. Or only by using this evidence.
Second, the judge reviews whether the standard of proof is met. Including a review of the preliminary evidence provided by the applicant, it is generally necessary to ask the applicant to better form a testimony. On this basis, it is possible to measure previous domestic violence using rules of thumb and reasonable judgment. Based on the cyclical law of domestic violence, the basic conviction that domestic violence may continue or may be at risk from domestic violence is established in the form of testimony. When this basic confidence is reached , a protection order can be made. Otherwise, the ruling is rejected. Of course, the domestic violence certificate in the protection order case should be as mental as possible in the judicial system and try to strengthen the domestic violence certificate through a two-pronged method of hearing. However, it should not be used as a necessary procedure for the issuance of a protection order, so as to avoid the danger of domestic violence due to th e delay in making a protection order, which would become a real consequence of domestic violence.
Thirty-third is that the parties should be given the right to review relief in this court. As the standard of domestic violence certification in protection order cases is relatively low, and the determination of danger of domestic violence is rebuttable, if the protection order is too late to hold a hearing, the respondent should be allowed to issue the protection order within a certain period of time after the protection order is issued. File a review. If the reason for reconsideration can overturn the presumed fact of danger of domestic violence , the protection order should be revoked; if the respondent is rejected without a reconsideration or the reason for the reconsideration is rejected, the protection order continues to be implemented. Article 29 of the draft of the National People s Congress has provided for the reconsideration of the respondent or the applicant, but it lacks the time limit for reconsideration and the court for remedy for reconsideration. In this regard, it is suggested that the respondent or the applicant may submit a reconsideration to the people s court that accepts the application for the protection order within three days after receiving the protection order or rejecting the application ruling.
At this point, the credibility theory of domestic violence danger can be summarized as follows: The ultimate object of the domestic violence certification in the protection order is domestic violence continued or danger of domestic violence rather than previous domestic violence . The proof standard is The judge s basic conviction that domestic violence may continue or be at risk of domestic violence; the applicant only needs to provide preliminary evidence that proves previous domestic violence or threat of domestic violence, and the judge reviews the preliminary evidence and inquiry provided by the applicant The applicant, based on the cyclical rules of domestic violence, uses proof of apparent evidence, reasonable judgment, etc. to prove the weak advantage of the proof object with low probabilities, and decides to make a protection order or reject the application for a protection order, based on whether or not basic confidence can be formed; The applicant or the applicant has the right of reconsideration.