Insights

How can Ningbo apply for a personal safety protection order in case of domestic violence? Lawyers teach you to save yourself.

Ningbo Author：LuXu WANG

The raising of 1. issues

A woman came to consult: she suffered from her husband's domestic violence for a long time and had multiple scars on her body.

She called the police many times, but her husband apologized every time afterwards and promised not to do it again.

This paper will focus on the above issues, from the legal provisions, practical operation, typical cases of three dimensions of the system.

2. legal basis

  • personal safety protection order: Article 23 of the "Anti-Domestic Violence Law" stipulates that if a party has suffered domestic violence or faces a real danger of domestic violence and apply to the people's court for a personal safety protection order, the people's court shall accept it.
  • Application conditions: Article 27 of the Anti-domestic violence Law stipulates that to make a personal safety protection order, the following conditions shall be met: (1) there is a clear respondent; the (II) has a specific request; the (III) has suffered domestic violence or faces the real danger of domestic violence.
  • Protective measures: Article 29 of the Anti-domestic violence Law stipulates that the personal safety protection order may include the following measures: (1) prohibiting the respondent from committing domestic violence; (II) prohibiting the respondent from harassing, following, or contacting the applicant and its related Close relatives; (III) ordering the respondent to move out of the applicant's residence; (IV) other measures to protect the applicant's personal safety.

3. core points

1. Who can apply?

The person is the applicant. If the party is a person with no capacity for civil conduct, a person with limited capacity for civil conduct, or is unable to apply due to coercion, intimidation, etc., his close relatives, public security organs, women's federations, residents committees, village committees, and rescue management agencies may apply on their behalf.

2. What evidence is needed?

Including but not limited to: alarm records, police records, warning letters; injury identification opinions, hospital diagnosis and treatment records; witness testimony; audio-visual materials; social organization mediation records, etc. Even if the evidence is incomplete, the court is admissible as long as it can prove that there is a real possibility of domestic violence or danger.

3. How long is the protection order valid?

A personal safety protection order shall be valid for no more than six months and shall take effect from the date it is made. Before the protection order expires, the court may revoke, vary or extend it on the application of the applicant.

4. What if the other party violates the protection order?

If the respondent violates the personal safety protection order and constitutes a crime, he shall be investigated for criminal responsibility according to law; if the case does not constitute a crime, the people's court shall give a reprimand 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.

4. boundary conditions

  • not on the premise of divorce: the applicant for a personal safety protection order does not need to file a divorce lawsuit first, and can apply separately.
  • Alarm is not a necessary condition: although alarm records are important evidence, the absence of alarm records does not affect the application, and other evidence is equally valid.
  • Men are equally protected: habeas corpus does not only protect women, but men who have suffered domestic violence also have the right to apply.
  • Love and cohabitation relationships can also apply: According to the "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in Handling Personal Safety Protection Order Cases", people who have suffered violence in relationships such as love and cohabitation can also apply for a personal safety protection order.

5. operational steps

  1. collect evidence: save alarm records, hospital medical records, injury photos, chat records, witness contact information, etc.
  2. Write an application: state the information of the applicant and the respondent, the request, the facts and reasons (the specific circumstances of domestic violence).
  3. Determine the court of jurisdiction: apply to the basic court of the place of residence of the applicant or the respondent and the place where the domestic violence occurred, which can be accepted by the district courts of Haishu and Yinzhou in Ningbo and the county (city) courts.
  4. Submit application materials: application, identification, relevant evidence materials. The court shall make its decision within 72 hours, or within 24 hours if the situation is urgent.
  5. After the protection order takes effect: delivered to the public security organs, neighborhood committees and other assistance agencies, such as the other party's violation immediately report to the police.
  6. Consider divorce or separation at the same time: a protection order is a temporary measure of protection that should be combined with divorce proceedings or separation arrangements in the long run.

6. common mistakes

myth 1: You must call the police to apply for a protective order. Positive: The alarm record is important evidence, but not the only evidence. Hospital diagnoses, photographs, witness statements, etc. can be submitted as evidence.

Myth 2: Only serious violence can apply. Positive solution: as long as there is domestic violence or face the real danger of domestic violence can apply, including threats, intimidation and other mental violence.

Myth 3: You can't get a divorce if you apply for a protective order. Right: Protection orders and divorce are separate legal proceedings. A separate application for a protection order may be made, or divorce proceedings may be instituted at the same time.

In case of domestic violence, please protect your own safety and seek help in time. Personal security orders are an important weapon given to you by law.

Summary of 7. relevant laws and regulations

the main legal provisions covered in this paper include:

  • article 27 of the Domestic Violence Act
  • article 23 of the Domestic Violence Act
  • article 29 of the Domestic Violence Act

8. Practical Operation List

if you are facing related problems, it is recommended to follow the following steps:

  1. collect evidence: organize all written materials, transfer records, chat records, etc. related to the case;
  2. consult a professional: before taking any action, it is recommended to consult a professional lawyer to understand their rights and possible legal consequences;
  3. assessing costs and benefits: litigation requires time and economic costs, which need to be combined with the amount of the case and the probability of winning the case;
  4. choice of dispute resolution: give priority to negotiation or mediation, and consider litigation if no agreement can be reached;
  5. note the statute of limitations: the law does not protect the person lying on the right to sleep, be sure to claim the right within the statutory statute of limitations.

Practical Experience of 9. Lawyers

protection orders do not have to wait for divorce before applying, and can be filed separately within marriage without paying legal fees. The practice is to submit the application to the basic court of the place of residence of the applicant or the respondent, or the place where the domestic violence occurred. The application clearly states the facts of the violence and the requested matters, such as prohibiting beatings, threats, harassment, stalking, and contact, and may also request if necessary Ordering the respondent to move out of the residence. Before starting work, prepare the evidence: the alarm receipt, warning letter, injury photos and medical records, chat or recording, and people who can testify. These are the basic materials for the application.

Safety always comes before the evidence. If there is immediate danger at the scene, evacuate first and call the police first. Don't leave yourself in danger in order to photograph the violence. When calling the police, insist on a receipt of receiving the police and require a record to be made. If you are injured, go to a regular hospital and truthfully state the cause of the injury in the medical record. The original of the obtained evidence should be kept, and the photos and recordings should be uploaded to the cloud or handed over to trusted relatives and friends for backup to prevent them from being deleted by the other party. Many parties suffer losses and lose the original of the evidence.

The protection order will be used when it is in hand. Leave one for yourself and inform the community, unit or property so that the other party knows the consequences of violation. Once the other party violates the protection order, it can call the police and request to deal with it according to law, especially for those who care about their work and reputation. Strategically, the protection order should be promoted simultaneously with divorce proceedings, support claims and damages, and matters such as divorce, support and property should be put in place at one time, instead of just focusing on "inseparable". In negotiations, protective orders can often soften the other side's attitude significantly and are a heavy bargaining chip.