What are the legal consequences of domestic violence in Ningbo?

Domestic violence not only seriously harms the physical and mental health of the victims, but also directly impacts the growth environment of minor children and the stability of marriage and family. The conclusion first says: once it is found to constitute domestic violence in the lawsuit, the perpetrator will face five consequences-it is the legal reason for granting divorce, the non-fault party has the right to claim compensation for divorce damages, the property may be divided less, and the right to fight for custody of children will be at an obvious disadvantage. if the circumstances are serious, the perpetrator will have to bear administrative and even criminal responsibilities, and may be bound by the personal safety protection order issued by the people's court. This paper combines the civil code, the anti-domestic violence law and the practice of Ningbo family trial.

1. domestic violence as a statutory grounds for granting divorce

the second and third paragraphs of Article 1079 of the the People's Republic of China Civil Code stipulate that the people's court shall conduct mediation in the trial of divorce cases; if the feelings have indeed broken down and mediation is invalid, the divorce shall be granted. Divorce shall be granted if mediation fails under any of the following circumstances: bigamy or cohabitation with others; domestic violence or abuse or abandonment of family members; gambling, drug abuse and other bad habits that do not change after repeated education; separation for two years due to emotional discord; other circumstances that lead to the breakdown of the relationship between husband and wife. It can be seen that "domestic violence" is explicitly listed as one of the legal circumstances of emotional breakdown-as long as the victim can prove the existence of domestic violence, the court should decide to grant divorce, and do not need to "whether the relationship is broken" repeatedly seesaw. This is obviously different from the normal state of "first prosecution and multiple sentences" in general divorce cases, and is the most direct procedural advantage of domestic violence victims in divorce proceedings.

It should be noted that the term "domestic violence" is not limited to physical violence. Article 2 of the Anti-Domestic Violence Law stipulates that domestic violence refers to physical and mental violations committed by family members by beating, binding, mutilating, restricting personal freedom, and frequent abuse and intimidation. Mental violence (frequent abuse, intimidation, cold violence to a certain degree of severity), economic control, etc. may also be included in the scope of evaluation, but the standard of proof is higher than physical violence, usually need multiple, continuous evidence chain support.

2. no-fault party may claim damages for divorce

article 1091 of the Civil Code stipulates that if one of the following circumstances leads to divorce, the innocent party has the right to claim damages: bigamy; cohabitation with others; domestic violence; maltreatment or abandonment of family members; other major faults. Accordingly, the innocent party who is divorced due to domestic violence can claim compensation for moral damage and material damage in divorce proceedings. The scope of compensation includes actual losses such as medical expenses and lost wages, as well as compensation for mental damage. Evidence of domestic violence and evidence of damage consequences (medical records, appraisal opinions, psychological diagnosis and treatment records, etc.) must be submitted when claiming.

Two points need to be paid attention to: first, the claim for damages is based on the premise of "no fault". If the injured party also has a major fault in the marriage, the request may be reduced or not supported; second, according to the provisions of the interpretation (I) of the marriage and family compilation, the non-fault party, as the plaintiff of the divorce lawsuit, should file the claim for damages at the same time with the divorce request. If it is not filed at the same time, another claim after the divorce will be strictly restricted, therefore, the protection of rights should be listed in the whole request at the beginning.

The aggressor may have less points when the 3. divorce property is divided.

Article 1087 of the Civil Code stipulates that at the time of divorce, the common property of the husband and wife shall be disposed of by agreement between the two parties; if the agreement fails, the people's court shall make a judgment in accordance with the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman and the non-fault party. The party committing domestic violence belongs to the "fault party", and the court should give preference to the fault-free party when dividing the common property, which is embodied in the following aspects: giving priority to the fault-free party in the division proportion, giving priority to the fault-free party and its directly dependent children in the distribution of bulk property such as real estate, and making arrangements in favor of the fault-free party in the determination of the amount of discount compensation. In addition, according to the spirit of the interpretation (II) of marriage and family, one party's domestic violence and other serious violations of the other party's rights and interests during the existence of the marriage relationship may also affect the proportion of his property request.

Another risk in the area of property is that if the perpetrator transfers, conceals or squanders common property before divorce, the division may be divided less or not in accordance with Article 1092 of the Civil Code.

4. may lose child support

the third paragraph of Article 1084 of the Civil Code stipulates that if, after divorce, the parents fail to reach an agreement on the issue of support, the people's court shall make a judgment in accordance with the principle of being most beneficial to the minor children. The existence of domestic violence is the core variable to judge "the most beneficial to minor children. Article 14 of the Anti-domestic violence Law and the Marriage and Family Interpretation (II) further clarifies: in divorce proceedings, both parents require to directly raise minor children who have reached the age of two, and if one party commits domestic violence or maltreatment or abandonment of family members, the people's court shall, in accordance with the principle of being most beneficial to minor children, give priority to the direct support of the other party.

In judicial practice, minor children who witness domestic violence between their parents can cause psychological trauma to them, and minors who witness domestic violence are also victims of domestic violence; perpetrators with a tendency to domestic violence are usually considered inappropriate to raise children directly. Although the perpetrator's right to visit is generally not deprived, the court will reduce the risk by restricting the way of visit, requiring the presence of a designated place, and being accompanied by a third party. When victims of domestic violence compete for custody, they should submit the alarm records, warning letters, protection order rulings, etc. as the core evidence that the perpetrator is not suitable for direct custody.

5. administrative and criminal liability

article 33 of the Anti-Domestic Violence Law stipulates that if the perpetrator commits domestic violence and constitutes a violation of public security management, public security management penalties (warnings, fines, detention) shall be imposed according to law; if a crime is constituted, criminal responsibility shall be investigated according to law. According to the Public Security Administration Punishment Law, anyone who beats another person or intentionally hurts another person's body may be detained and fined. If the circumstances of domestic violence are bad and cause more than minor injuries, it may constitute the crime of intentional injury; if the circumstances are bad for a long time, it may constitute the crime of abuse (the crime of abuse shall be dealt with in principle, except for those causing serious injury or death to the victim); in addition, it may also involve the crime of illegal detention, intentional homicide, etc. The determination of criminal responsibility is based on the premise of injury identification and evidence chain, and the victim should fix the evidence in time.

6. personal safety protection order: can be applied for both within marriage and after divorce.

Article 23 of the Anti-Domestic Violence Law stipulates that if a party suffers from domestic violence or faces a real danger of domestic violence, he may apply to the people's court for a personal safety protection order. The protection order may prohibit the respondent from committing domestic violence, prohibiting him from harassing, following, contacting the applicant and his relevant close relatives, and ordering him to move out of the applicant's residence. After the people's court accepts the application, it shall make a ruling within 24 hours if the situation is urgent; if the situation is not urgent, it shall make a ruling within 72 hours. The protection order shall be valid for not more than six months and may be revoked, modified or extended before its expiration.

If the respondent violates the personal safety protection order, the people's court shall admonish him, and may impose a fine of not more than 1,000 yuan and detention for not more than 15 days according to the seriousness of the circumstances; if a crime is constituted, criminal responsibility shall be investigated according to law. In 2022, the Supreme People's court and other departments also made it clear that if the respondent violates the protection order and commits domestic violence again, it is an act of refusing to execute the judgment, and may be investigated for criminal responsibility for refusing to execute the judgment or ruling. The application of personal safety protection order is not based on the premise of filing divorce proceedings. It can be applied for within marriage, during separation and after divorce. It is the most direct legal tool to block the escalation of violence.

7. Evidence Collection List and Identification Practice

the determination of domestic violence does not require a single "hard evidence", but a combination of evidence: the people's court's determination of the facts of domestic violence usually comprehensively reviews police records, warning letters, injury appraisal opinions, medical diagnosis, audio and video recordings, witness testimony, and the perpetrator's self-admission. Article 16 of the Anti-domestic violence Law stipulates that if the circumstances of domestic violence are relatively minor and no punishment for public security administration is imposed in accordance with the law, the public security organ shall criticize and educate the perpetrator or issue a warning letter -- the warning letter is authoritative evidence to prove the facts of domestic violence, and the victim shall take the initiative to request it to be issued and properly kept when reporting to the police.

It is recommended to retain in two dimensions according to "timeline + carrier:

1. instant evidence: receipt of alarm or receipt of case acceptance, 110 call record; Audio and video recording of the violence process (pay attention to legality, on the premise of self-safety); The injury photo must be marked with time watermark or correspond to the date of medical record.
2. Medical evidence: medical records, diagnosis certificates, payment bills; power of attorney for injury appraisal and appraisal opinions (can be entrusted by the public security organ or applied to the judicial appraisal institution by itself).
3. Evidence of threat and intimidation: abuse and threat content in WeChat, SMS and email (do not delete the original carrier), telephone recording, and record of the offender apologizing and promising to correct afterwards (which is self-confessed evidence in itself).
4. Third-party evidence: testimonies of neighbors, relatives, property and community workers or interrogation records after the police call; records of intervention of women's federations and neighborhood committees; feedback records of the perpetrators after receiving criticism, education and warning.
5. Evidence of continuous harm: the continuity of multiple alarm records and the accumulation of medical visits are used to prove "recurrent" and "continuous"-this is related to whether it constitutes abominable abuse and whether it affects the evaluation of custody.

The organizational logic of evidence should serve three proof objectives: first, to prove the existence of domestic violence (corresponding to Article 1079 of the Civil Code and Article 1091 of damages); The second is to prove that the perpetrator is not suitable for directly raising children (corresponding to Article 1084 and Article 14 of Interpretation II); The third is to prove that the perpetrator is at fault and should have less property (corresponding to Article 1087). The three groups of targets share evidence but present different emphasis. Before the prosecution, it is suggested to sort out and make a catalogue of evidence according to the targets, which will be clear at a glance during the trial cross-examination.

With regard to the amount of compensation for divorce damages, Article 1091 of the Civil Code only resolves the question of "whether it can be claimed", and the specific amount is at the discretion of the court. In practice, the discretion of compensation for mental damage usually refers to the following factors: frequency and duration of domestic violence, consequences of injury (minor injury, serious injury or long-term psychological trauma), subjective malignancy and post-event attitude of the perpetrator, degree of fault of both parties, living standard of local residents and affordability of the perpetrator; Material damage is calculated according to medical expenses, lost work expenses and nursing expenses bills. The victim should submit complete loss vouchers and psychological diagnosis and treatment records when claiming-mental damage is not a "price call", but a discretionary result based on the evidence of the consequences of the injury, the more solid the evidence, the higher the grasp and amount of compensation.

8. FAQ

what is the first thing to do after domestic violence?

Call 110 immediately to call the police and ask for the receipt of the case or the receipt of the police. Seek medical treatment in time, save medical records and diagnosis certificates, and apply for injury identification; Take photos of injuries with time information. Alarm records and medical records are the two core sets of evidence to identify domestic violence, and they are also the basis for applying for a personal safety protection order and filing a divorce lawsuit in the future.

Only the alarm record, no injury identification, can be identified as domestic violence?

You can. The evidence for determining domestic violence is combined: alarm receipt, public security warning, injury photos, medical records, witness testimony, WeChat SMS threat records, audio and video recordings, etc. can be accepted. Injury identification is mainly used to prove the consequences of damage and criminal responsibility, and is not the only evidence for determining domestic violence. The more complete the evidence, the more certain the court's determination.

If the other party does not agree to divorce, will the court decide to leave?

Will. Article 1079 of the Civil Code clearly lists the implementation of domestic violence as a legal situation in which mediation is invalid and divorce should be granted. As long as the facts of domestic violence are verified, even if the other party firmly disagrees, the court should also decide to grant divorce.

Can the victim of domestic violence divide more property when divorcing?

Article 1087 of the Civil Code establishes the principle of taking care of the rights and interests of the no-fault party. As the no-fault party, the injured party of domestic violence can be given preferential care when the property is divided. At the same time, compensation for divorce damages can be claimed in accordance with Article 1091. The two are two rights and interests that go hand in hand and should be claimed together.

Do the perpetrators have visitation rights? Will they be taken away?

In principle, the right of visitation is not deprived of course because of domestic violence, but the court will make restrictive arrangements based on the principle of most beneficial to minor children, such as requiring a third party to accompany them, meeting in designated places, etc.