On the legal aid in opposition to Zhu Minling

  • Created:
  • / Author: Aaron Lewis
   Abstract:Family is the cell of society, harmonious, peaceful family relationship is not only an important part of every member of the family happiness, and also one of the important contents of constructing socialist harmonious society. However, in today's society, violence against women is still very common. Family violence, especially domestic violence against women, is the impact of social stability and harmony and unity of social problems, has become a hot topic in today's international society. Family violence against women, are violations of the human rights of women, to destroy one of the most main barriers to women's self-confidence and dignity, hinder social progress. In today's society, although the status of women has been greatly improved in a certain extent, but because of legislation and existing laws and regulations is not perfect, the domestic violence against women still continued.
   With the continuous development of the economy, in the economic developed area, the relevant departments are gradually introduced and implementation of various policies, actively adopt measures to ensure the protection of women's rights and interests. Made some achievements in the local scope, but still a large level of women's rights have not been effectively guaranteed.
   In this paper, through the analysis of its social causes, and unifies Zhejiang province the women's domestic violence case to carry on the discussion, analysis and discussion of legal aid in opposition to women's family very violent in action, puts forward the legal countermeasures and suggestions, in order to protect women's human rights, safeguard the legitimate rights and interests of women.
 
Key word.Domestic violence against women in legal aid
 
One, foreword
   Several years ago a hit TV series "don't talk to strangers", the ornamental and the combined plain properties doctor Anjia and wife beating scene, make people shiver all over though not cold, many people from the harm of the drama of family violence have knowledge and understanding profound. However, in modern society, gender based violence is still very common, especially the problem of domestic violence against women. It is long-standing, but it occurs within the family, away from the public eye, it is difficult to be known to the outside world, and the society for a long time will be regarded as domestic disputes and other reasons, which are not given due attention and solution.
In twentieth Century 70 time, along with the awakening of the awareness of women's human rights, violence women into public view. At present, the world has more than 40 countries and regions have promulgated special laws prohibiting domestic violence, and the family violence theory and intervention measures are widely and deeply studied. However, domestic violence data, investigation, research and Prevention Countermeasures about women and for victim assistance and effective legal means are very scarce. Therefore, the study on this problem, can make people understand the essence of family violence, a harmony family friendly, more conducive to social stability and unity.
Background two, family violence against women
   Family violence refers to the behavior of family members of the party to the other party of violence, including physical, mental, sexual violence among family members. Its characteristic is a use of force and the right to control the other party. The victims of family violence is the main female.
   Generally speaking, everyone realized that, in the world, all women become victims of gender based violence. The traditional concept of women as men's accessories, caused the people to violence and traditional gender based violence to be reasonable, and the violence was also very subtle. The dangers of women phenomenon in the society, even the most violent or for which the most severe form, in many countries, but still has not been sufficient attention of legislators. Despite the fact that domestic violence whenever and wherever possible to happen, but it is still an underrated crime. Domestic violence is considered modern city life of a "tumor".
Three, according to the situation of women's domestic violence
   In 1999, a survey showed China Academy of Social Sciences, the national domestic violence to women in the proportion as high as 30%, according to a sample survey by the all China Women's Federation, in the investigation of the public, 16% of women admitted by their spouse played, 14.4% of men admit fought their spouses. Each year about 400000 a disintegration of the family, 25% due to family violence, especially in the divorce, violence, the proportion is as high as 47.1%. In the current domestic violence, violence against the husband wife accounted for the vast majority of the victims of domestic violence, 90% - 95% are female.
According to the survey by the all China Women's Federation, about 30% of domestic violence China exists in 270000000 families. Sociologists argue that, the actual figure is much higher. On domestic violence complaints in 2002 National Women's organizations to accept up to 36600. 16% of women admit suffered spouse violence, there are 5% and 2.6% of the women said a spouse mental injury and sexual abuse.
   In 2000, the promulgation of the new "marriage law" has been put in the "domestic violence shall be prohibited" as an important provisions into one, which means "family violence" is not only a social phenomenon, but also as a clear legal concept, included in the scope of legal regulation. Family violence should be the concern of the whole society. The number to the Shanghai women's Federation letters reflect the family violence in marriage and family problems, accounting for 14.7%, 16%, 13.4% respectively from 1998 to 2000. The promulgation of the new "marriage law", the phenomenon of domestic violence has been curbed.
   Zhejiang Province in July 29, 2007 Ten Session of National People's Congress Standing Committee at its thirty-third session through "the implementation of people's Republic of China Women's rights and interests protection law > to" Zhejiang province National People's Congress of Zhejiang Province, at the same time, the House Judiciary Committee Vice Chairman Zhang Xiaolin said, in recent years, the number of the women's Federation of Zhejiang province system about domestic violence has been at a high level, to 2684 in 2005 member, accounted for the total 15%; in 2006 2671, accounting for 12% of the total complaints; malignant events in some places the spate of family violence causes a person's death.
Legal control status four, domestic violence
(a) the existing laws and regulations
   Against domestic violence in China, at present there is not a systematic law against family violence, provisions on domestic violence mainly appear in some laws. From the "constitution" ("constitution" article forty-ninth paragraph first, paragraph fourth: marriage, family, mother and child are protected by the state. Violation of the freedom of marriage is prohibited, banned the maltreatment of old people, women and children), down to the "marriage law" (2001 revised "marriage law" increased "domestic violence shall be prohibited" provisions of the law, the "family violence" one word first appeared in our country's law), "women's rights and interests protection law", "criminal law" and other laws appear only against domestic violence in some terms, but not a system. In many parts of the country to carry out the regional anti family violence diversification, respectively formulate local regulations, rules and regulations related, such as "Hunan Provincial People's Congress Standing Committee on preventing and curbing domestic violence", Zhejiang encourage the construction of resolution women asylum, the provincial government issued "Zhejiang province (women's development planning 2006 - 2010)". In the planning that give full play to the public security, the women's Federation of anti family violence joint rescue network and people's mediation organizations, handling of domestic violence cases in a timely manner, preventing and curbing domestic violence. All localities should take a variety of forms to violence to provide legal, medical, mental health, life and need help against women and other help, conditional area to set up a women's shelter.
(two) the legal aid status
   At present, China has dozens of city based on the local (Department of Civil Affairs) rescue management mechanism, set up the anti domestic violence civil shelters, timely provide a refuge for women; and actively cooperate with the relevant departments, including the departments of public security, the women's Federation and the relevant judicial, help women solve the family problems, try to provide temporary help for suffer from women victims of domestic violence.
   In recent years, Zhejiang province has made great progress in legal aid. But because of the legal aid system in general is still in its initial stage, especially in the vast rural areas, the legal aid awareness issue rate is not high, convenience measures not enough outstanding, legal aid is a little far from the broad masses of peasants and look forward to "aid as aid" requirements. At the beginning of 2009, the Zhejiang provincial government decided to further strengthen the legal aid work in rural areas, put forward to expand the recipient object, violence in the family gradually into the scope of legal aid institutions, pushing the window Street "landing", to help poor women in marriage and family, support, raising, maintenance and tort compensation, labor rights disputes. Safeguard the legitimate rights and interests of women, a blue sky for women to safeguard their legitimate rights and interests according to law.
   Thus, a law against domestic violence against women is quietly expanding the scope of the assistance.
(three) problems in China's existing laws on domestic violence prevention and control:
   Although our country has made some achievements, in the elimination of domestic violence against women in work but, Chinese women now, especially many rural women from domestic violence abuse phenomenon still occur from time to time. On family violence, the existing laws and regulations and judicial interpretation, the existing legislation on domestic violence prevention and control of serious problems:
   1, "the constitution" about domestic violence stipulation too principle, the lack of specific and operational.
   2, in civil law, although the "marriage law", "women's rights protection law" and "law against domestic violence" included, but the concept of domestic violence do not clearly defined. The Supreme People's court, although the judicial interpretation, the interpretation will clearly defined scope of family violence is too narrow. In addition, the family violence marital damage compensation system is not perfect.
   3, the criminal law about domestic violence legislation framework cannot meet the actual need in the implementation of the mechanism. First of all, "criminal law" no family violence as a separate crime, and not the marital rape explicitly included in the confirmation, the marital rape become cannot sue family violence, against the legal protection of women's position and principle.
   4, from the aspect of procedural law, the lack of domestic violence cases of special handling procedures and rules of evidence. The legal responsibility is not clear, the judicial relief, and then make the judicial difficult to punish the perpetrators.
   The lack of administrative responsibility about the punishment of perpetrators of 5, the current law, the relevant provisions of the lack of government in solving the problem of domestic violence responsibilities.
   6, in some local regulations, and the measures taken are not detailed and self-contained system planning. Even some of the action has not been implemented, work is not in place. Zhejiang provincial government issued "the Zhejiang women's development plan (2006 - 2010)". And in the plan that give full play to the public security, the women's Federation of anti family violence joint rescue network and people's mediation organizations, handling of domestic violence cases in a timely manner, preventing and curbing domestic violence. All localities should take a variety of forms to violence to provide legal, medical, mental health, life and need help against women and other help, conditional area to set up a women's shelter. In addition, the government of Zhejiang province also requires, establish and perfect the mechanism theory of women, cooperation with universities and research institutions, regularly carry out surveys of women's survival and development, strengthening the research on theory of women and women's development. Still not a effective for by family violence women to protect the interests of a full range of.
Five, social reason and harm of family violence
   Domestic violence problems, have their roots in history, profound social background and economic reasons. The main impact of the following five aspects:
(a) the influence of the traditional feudal culture
   The influence of the traditional feudal culture is the important historical causes of the family violence. Culture is the foundation of our country for a long time is the male centered culture, reflected in the husband and wife, mainly for the "think that women are inferior to men", "the three obediences and the four virtues", such as male patriarchy thoughts, the status of men and women in the family and social structure in the extreme inequality.
   In March 9, 2008, Zhejiang province Shaoxing Shangyu Luo Juying in the "three eight" on the eve of the festival because of family violence and passed away, the tragedy for society to continue.
   Since the establishment of the basic national policy of gender equality China, win support among the people and into people's conscious behavior, ingrained sexism has changed a lot, but the legacy of influence still exists, the male culture, patriarchal ideology has not completely from the social life of the purge, traditional culture is still in the influence character by environment influence on social attitude toward family violence.
(two) income imbalance
   Family members of the economic and social status is often different, according to the survey, 97% households, there is a certain gap between the actual income of men and women, compared to men, women still belong to the low income groups, economic income imbalance led to economic inequality. Members in a strong position in family life often leading and dominant position, but the members in a weak position often rely on them, once the family conflicts, vulnerable members usually become the object of strong member vent, the elderly, children, women and the family became directly to the victims of domestic violence.
   Beat the December 15, 2007 Shaoxing County of Zhejiang Province town of sun side 39 years old Yu charming long was father-in-law, brother-in-law to death. 5 years ago as a result of Yu charming husband died, her father-in-law and brother-in-law often beat her, the main reason is the property dispute. Calls for a boycott of the family violence after sound still, and the emergence of such family violence and tragedy, a sigh.
(three) the influence of social factors
   The rapid development of society and the change of where people work, life and social pressures continue to increase, such as unemployment, economic distress, and unhappy life. The ratio of domestic violence are often the ratio is proportional to the social pressure, when the pressure could not resolve, prone to family conflicts and lead to the occurrence of domestic violence victims, the elderly, women and children as domestic violence. At the same time, the social life rhythm accelerate, people are keen on economic construction, but neglect the spiritual and moral construction, development of the moral construction lags behind the economic, the emotional communication between husband and wife is reduced and even indifference. In addition, because of the influence of the social environment, some family members gradually formed some bad habits, such as drug use, alcohol, gambling, prostitution and extramarital affairs, these bad habits also led to domestic violence.
   Live in Zhejiang Jiangshan City of Song Yingxiong in 1989 and a fairy to get married and give birth to a son, marital relationship is good. In recent years, both sides have quarrels with trivial matters, in 2001 the two sides intensified contradictions, separate lives. The song so suspected his wife of a fairy improper sexual relations with others. The evening of April 27th, the song called the accommodation to relatives cents to a cheat home. When the song to a fairy qiuhuan refused to become shame, put a cents down in the bed, with a nylon rope prepared in advance to the hands and feet bound, and remove a fairy clothes. Then make a fairy that improper sexual relations with others, a fairy shook his head. The song of the beaten until the next day at 3 pm, during which the song also cruelly with a fruit knife cut out a aw double nipple. This rare domestic violence crime in Zhejiang Province, Quzhou City Intermediate People's court sentenced the defendant song hero committed the crime of intentional injury, sentenced to 15 years in prison.
(four) the judicial administrative department of intervention is not enough
   The majority of people in society that "family violence is an internal matter", "you can say it again", therefore, domestic violence has long been regarded as a family affair, widespread "neighbors don't ask, neighborhood, unit no matter, don't kill law enforcement agencies ignore" phenomenon. This is in fact the perpetrators of appeasement, is a tacit approval of family violence, thus losing the legal deterrent, preventive effect. At the same time, this has undoubtedly contributed to the arrogance of the perpetrators, victims are not timely and effective judicial and administrative protection, will dampen victims the confidence, leading to family violence.
(five) the relevant legislation is not perfect
   Although China's "criminal law", "Public Security Management Punishment Ordinance", "women's rights protection law", "marriage law" and other relevant laws and regulations are regulations prohibiting domestic violence and punishment sanctions, but for a long time, these laws and regulations have poor maneuverability, lax enforcement of the defects, to prevent the the family violence and punish perpetrators of a very limited role. At present, there is not a systematic law against domestic violence, holistic, systematic deficiency leads to domestic violence punishment ineffective, resulting in some perpetrators secure to rely on, which are all the reasons of family violence grows.
Six, eliminate the legal countermeasures and suggestions of domestic violence against women
   (a) formulating the law against family violence, the family violence prevention and control into the legal orbit.
   The existence of family violence not only seriously hurt the victim's body health and life safety, led to the breakdown of marriage and family misfortune, but also easy to trigger a vicious crimes, threaten the stability of harmonious society and stability and unity. Domestic violence is a serious social problem, its solution can't only rely on the law, but left the perfect law can not talk about solving. Therefore, take all kinds of measures including legislation, to prevent and stop domestic violence, not only protecting women, the legitimate interests of the elderly, children, the need to safeguard the family vulnerable groups of human rights, it is also necessary to build a harmonious society. The Chinese government in the "2001 - 2010 China development program for women" has "preventing and curbing domestic violence against women" as strengthening judicial protection and legal supervision, increase one aspect of law enforcement.
   For a long time, due to family violence within the family, and to be tolerated and neglect. In the face of domestic violence has become increasingly serious and open, only with the moral standard to repair, with public opinion to restraint, ideological and political work to education has been difficult to work. And in all the security, judicial guarantee is an ultimate safeguard, relatively speaking has the force to do the backing, so is rigid. In order to eliminate domestic violence, the Chinese government and the social from all walks of life made positive efforts and achieved certain results, but these are not optimistic. The current our country in preventing domestic violence still exist many problems and difficulties, which the legal intervention on family violence is not enough, the law regulating family violence is not perfect is particularly prominent.
   (two) to strengthen the judicial intervention, intensify efforts to crack down on domestic violence.
   Although the current laws, regulations of China are not detailed enough and perfect, but in the stop family violence can still play a big role. However, due to various reasons, the judicial organ fails to make full use of the existing legal resources, failed to make the existing legal provisions play the biggest role in anti - domestic violence.
   Therefore, in perfecting the relevant legislation at the same time, we must pay high attention to perfect the judicial. In a sense, perfect justice is more important than the perfect legislation. Because, first, to perfect law also need the judicial implementation, the law alone is not enough. Second, improve the judicial relative to the perfection of legislation more convenient, faster. Stressed the need to strengthen the judicial intervention on family violence, the reason is that the judicial intervention particularity itself with other intervention does not have, can greatly improve the effectiveness of the existing anti domestic violence measures. According to the provisions of the Constitution and laws of our country, the judicial organs are to protect the people, against the enemy, punishing crimes, is an important duty of serving the society. Everyone who belongs to the criminal cases of family violence, by the judicial organs; belongs to the civil aspects of family violence cases, litigation parties, but also by the people's court processing. Therefore maintenance including marriage and family relations, social relations, protect the legitimate rights and interests of all kinds, including the rights of marriage and family, the punishment of all illegal and criminal activities related to family violence, including the judiciary, is bound to the statutory duties. Give full play to the special responsibilities between the various judicial organ, form a joint force to construct the judicial defense against family violence.
   (three) to strengthen administrative intervention, to enhance the domestic violence policy of containment.
   Governments at all levels are the executive organs of state law, in the elimination of domestic violence can not shirk, extremely important responsibilities. The State Council promulgated the "outline for the development of Chinese women" clear requirements, "governments at all levels should establish the legal aid system, to provide various forms of legal services and social relief for victims." The sound receiving letters and visits system, carry out legal advice and services, treatment of women victims of complaints."
   The new "people's Republic of China Women's rights protection law" has been implemented since December 1, 2005 for the first time that the relevant government departments in preventing and curbing domestic violence responsibility. The forty-sixth paragraph third: "the public security, civil affairs, judicial administrative departments, the urban and rural grass-roots mass self-government organizations, social organizations, should prevent and stop domestic violence within the scope of their respective duties, to provide assistance to women victims according to law."
   Zhejiang province Huzhou City soup for beaten repeatedly by her husband Chen and put forward a divorce, and by the domestic violence victims on the grounds, to her husband to ask for compensation for mental damage. Court that, Chen often on a soup of violence, cause couples gradually broken down, beating behavior has constituted the Chen family violence, in accordance with the provisions of the marriage law about domestic violence, Chen shall compensate for a loss of the spirit of soup. The court according to the damage, the bearing capacity and other factors considered, decisions remain compensation 3000 yuan.
Governments at all levels according to the specific function of its own, to take the necessary measures, in order to increase administrative intervention in domestic violence. Women can be in accordance with the relevant provisions of the criminal procedure, to the people's court private prosecution, the public security organ in accordance with the investigation, the people's procuratorate according to the law on violence prosecution.
   In 2006, Wenzhou City, Zhejiang Province issued to prevent and stop domestic violence provisions. It is reported this is the first issue to prevent and stop domestic violence, local government Chinese order. The public security, civil affairs, the requirements of judicial administration, trade unions, Communist Youth League, women's federations, the parties, the village (neighborhood) committees and the grass-roots people's mediation organization, should accept the family violence timely complaints, to the domestic violence to dissuade, deter, victimization objective, fair record perpetrator's illegal facts and the victim, and to save. In order to effectively prevent and stop domestic violence, Wenzhou city in the first China arrange special funds, to provide fund guarantee for the prevention, suppression and rescue work, and open the first established by the government's anti Domestic Violence Hotline for victims of domestic violence, to provide psychological counseling services and effectively help.
(four) to strengthen the building of law enforcement personnel, improve the sense of responsibility of family violence.
   Should continue to strengthen the leadership of the main units of training at the same time, the propaganda and training extended to the relevant agency personnel, law enforcement, judicial, the concept of gender equality, improve their legal consciousness and responsibility consciousness, strengthen the basic state policy of equality between men and women to understand, recognize the essence of family violence, and effectively implement the judicial, law enforcement work. The establishment of a high-quality judicial, law enforcement, justice, shall be dealt with promptly to the case. Law enforcement personnel, including court, procuratorate, public security organs shall strengthen the nature of domestic violence awareness, awareness of gender equality is strong, battered women's vulnerable position based on, should pay attention to the special interests and their. Close emotionally battered women, tolerant of their psychology and behavior, to correctly guide, Xiao to justice, but also to respect their choice. Fortunately, in recent years, the Chinese government has begun to attach importance to strengthening mechanisms safeguarding women's rights and interests, pay attention to the training of law enforcement officers. Strengthen the training of public security, prosecution, courts, civil affairs, health and the propaganda department and the women's federations full-time staff. In 2001, the establishment of a national safeguard the rights and interests of women and children coordination leading group, strengthen the division between the United and cooperative engagement capability, effectively increased the national efforts in safeguarding women's rights and interests.
Seven, the conclusion
   Family violence for many families have the misfortune of shadow, but also to the social stability seriously harm can not be ignored. We must pay attention to the legal aid in the fight against domestic violence against women in the role, because the family violence is a serious social problem, it addresses the need for legal aid to the protection of women's human rights, safeguard the legitimate rights and interests of women. The female is society's "half the sky", is to maintain the core link of the family. Stop family violence, is conducive to maintaining the harmonious, civilized marriage and family relations, more conducive to promoting the harmonious development of society, and put an end to the most fundamental of family violence measure is to improve women's family status and social status, the eradication of violence against women and family economic and social foundation fundamentally. Zhejiang Dragon Sword law firms Zhu Minling
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