What else can a protection order do besides protecting personal safety?
Several Provisions of the Supreme People's Court on the Time Effect of the Application of the Civil Code of the People's Republic of China
Article 1, Paragraph 3：Where a legal fact occurring before the implementation of the Civil Code continues to after the implementation of the Civil Code, the Civil Code shall apply to civil dispute cases arising from such legal fact, unless otherwise provided by law or judicial interpretation.
Article 3：Where a civil dispute case arises from a legal fact occurring before the implementation of the Civil Code, and the law and judicial interpretation at that time have no relevant provisions but the Civil Code has provisions, the Civil Code may be applied, unless it obviously impairs the legitimate rights and interests of the parties, increases the legal obligations of the parties, or deviates from the reasonable expectations of the parties.
The personal safety protection order system is an important measure in China's anti-domestic violence system. According to Article 29 of China's Anti-Domestic Violence Law, the specific measures of a personal safety protection order include:
Prohibiting the respondent from committing domestic violence;
Prohibiting the respondent from harassing, stalking, or contacting the applicant and their relevant close relatives;
Ordering the respondent to move out of the applicant's residence;
Other measures to protect the personal safety of the applicant.
Based on the experience of the Wumei Lawyer Team in handling domestic violence-related cases, as well as the big data report formed by the lawyer team tracking and statistics the national personal safety protection order system for six consecutive years, both the first measure (prohibition order) and the second measure (stay-away order) among the specific measures have been well applied and implemented. The vast majority of the applicants' claims for these two measures in cases have been supported by the courts; for the third measure, namely the request to order the abuser to move out of the residence, statistical data in recent years shows that many courts have begun to support such requests. These achievements are gratifying.
However, in practice, in family disputes involving domestic violence, the problems to be solved are far more than these. The following are the common help-seeking scenarios often encountered by family lawyers:
In practice, after suffering domestic violence, a considerable number of victims, especially women, will choose to separate from the abuser. Those who are able to do so often leave the violent environment with their children. In such cases, it is highly probable that the abuser will no longer pay child support after separation, let alone cover the daily expenses of the victim. Correspondingly, whether for the purpose of reciprocal sanctions or because the victim or the child is afraid of meeting the abuser, the daily contact between the abuser and the child will also be interrupted during the separation period.
In the cases mentioned above, the female party claims that the male party should pay child support, while the male party accuses the female party of refusing to let him see the child. In current judicial practice, it is relatively difficult to resolve the claims of both parties for the following reasons:
First, although domestic violence has occurred, the victim may not immediately file a divorce lawsuit with the court. Without relying on a divorce lawsuit, it is difficult for the victim to separately sue for child support or living expenses during the marriage. Of course, the abuser also faces procedural difficulties in separately claiming the right to visit the child at this time.
Second, even if the victim has filed a divorce lawsuit with the court after the occurrence of domestic violence, since the child support has actually been incurred—even if it is borne unilaterally by the victim—the court still finds it difficult to support the victim’s claim for economic compensation from the abuser when dividing the joint marital property in the divorce case. At the same time, before the court makes an effective judgment on child custody in the divorce case, it is also difficult for the abuser to realize the claim of visiting the child.
In the author’s opinion, the above difficulties can be solved by expanding the scope of personal safety protection orders.
As mentioned earlier, in addition to prohibition orders, stay-away orders, and eviction orders, the specific measures of personal safety protection orders stipulated in China’s Anti-Domestic Violence Law also include an item called "other measures". This provision provides a solution for protecting the relevant rights and interests of parties involved in domestic violence cases. For example, issues such as the payment of child support during separation or the visitation of children during separation can be clearly put forward as separate claims in the protection order. At the same time, since the protection order has mandatory effect, it can well resolve the parties’ worries about "what if the other party fails to perform".
In fact, expanding the functions of personal safety protection orders is not a new thing in current judicial practice. A similar approach was adopted in the case of [Li Mou and Tang Xiaomou v. Application for Personal Safety Protection Order and Change of Child Custody], which was included in the Top 10 Typical Cases of Personal Safety Protection Orders in 2020 released by the Supreme People’s Court on November 25, 2020.
Basic Case Facts
The applicant, Li Mou (female), and the respondent, Tang Mou, were originally husband and wife. They divorced by agreement in 2008, and their minor son, Tang Xiaomou, was raised by Tang Mou. Since 2012, Tang Mou has repeatedly subjected Tang Xiaomou to domestic violence, resulting in frequent bruises, congestion and other signs of being beaten all over Tang Xiaomou’s body. At one point, Tang Xiaomou even had the idea of jumping off a building to commit suicide. After learning about this, Li Mou advised Tang Mou not to beat the child again, but Tang Mou refused to listen. Instead, he threatened Li Mou, beat and scolded Tang Xiaomou even more severely, and threatened Tang Xiaomou not to tell anyone else about being beaten, otherwise he would suffer more severe punishment. Li Mou reported the matter to the public security organ. A hospital examination showed that Tang Xiaomou not only had injuries on his body, but also suffered from moderate depression and anxiety. Li Mou and Tang Xiaomou jointly applied to the court for a personal safety protection order, requesting the court to legally prohibit Tang Mou from continuing to commit violence. At the same time, Li Mou also filed a lawsuit with the court to change the custody of Tang Xiaomou.
Judgment Result
The People's Court of Liubei District, Liuzhou City, Guangxi Zhuang Autonomous Region ruled as follows:
Prohibit Tang Mou from insulting, defaming, threatening, or assaulting Li Mou and Tang Xiaomou;
Suspend Tang Mou’s right of guardianship and visitation over Tang Xiaomou.
In this regard, the personal safety protection order system in Taiwan Region of China is fully worthy of reference. According to the "Domestic Violence Prevention and Control Act" in Taiwan Region, in addition to measures to protect the personal safety of victims, the specific contents of the protection order also involve the delivery of daily necessities, the assumption of child support obligations for minor children, and the contact and communication with minor children, including the following 13 specific contents:
- Prohibit the respondent from committing domestic violence against the victim, minor witnesses of domestic violence, or their specific family members.
- Prohibit the respondent from engaging in harassment, contact, stalking, phone calls, correspondence, or other unnecessary contact behaviors.
- Order the respondent to move out of the residence of the victim, minor witnesses of domestic violence, or their specific family members; if necessary, prohibit the respondent from using, benefiting from, or disposing of the real estate.
- Order the respondent to stay a specific distance away from the following places: the residence, school, workplace of the victim, minor witnesses of domestic violence, or their specific family members, or other specific places frequently visited by the victim or their specific family members.
- Determine the right to use motor vehicles, locomotives, and other necessities for personal life, occupation, or education; if necessary, order their delivery.
- Determine the temporary exercise or assumption of rights and obligations with respect to minor children, to be undertaken by one or both parties, and specify the content and method of exercise or assumption; if necessary, order the delivery of the children.
- Determine the time, place, and method of the respondent’s contact and communication with minor children; if necessary, prohibit such contact and communication.
- Order the respondent to pay the rent of the victim’s residence or the maintenance fees for the victim and their minor children.
- Order the respondent to pay the medical expenses, counseling fees, shelter fees, property damage compensation, etc., for the victim or specific family members.
- Order the respondent to complete a perpetrator treatment program.
- Order the respondent to bear reasonable attorney fees.
- Prohibit the respondent from accessing the household registration, student status, income source and other relevant information of the victim and the minor children under their temporary guardianship.
- Issue other necessary orders to protect the victim, minor witnesses of domestic violence, or their specific family members.
Of course, the Wumei Lawyers team has been actively exploring and practicing the views and approaches put forward in this article. For example, during the settlement of divorce litigation disputes, can the perpetrator normally visit the minor children? If yes, what are the specific methods and safeguard measures? How to balance the reasonable demands of both parents while maximizing the protection of the physical and mental health of minor children in the process? All these issues require colleagues in the legal community to gradually practice and improve in practice.
The future is promising, and we will work together!
