Insights

How to collect evidence of domestic violence in Ningbo? How to apply for personal safety protection order

Ningbo Author：LuXu WANG

The raising of 1. issues

ms. Zhang has been beaten by her husband for a long time and was recently beaten to fracture her ribs.

She wants a divorce, but she is worried that the other party will not admit domestic violence.

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

article 23 of the Domestic Violence Act:

> If the party concerned applies to the people's court for a personal safety protection order because of domestic violence or the real danger of domestic violence, the people's court shall accept it.

Article 29 of the Domestic Violence Act(Protection Order Measures):

> Personal safety protection order may include the following measures:> (I) prohibit the respondent from committing domestic violence;> (II) prohibit the respondent from harassing, tracking, or contacting the applicant and his related close relatives;> (III) order the respondent to move out of the applicant's residence;> (IV) other measures to protect the applicant's personal safety.

Article 1079 of the Civil Code:

> If domestic violence or abuse or abandonment of family members is committed, and mediation fails, divorce shall be granted.

Key Points of 3.: Identification Standards and Evidence Types of Domestic Violence

domestic violence is not limited to physical violence

according to Article 2 of the Anti-Domestic Violence Law, domestic violence refers to physical and mental violations committed by family members by beating, binding, mutilating, restricting personal freedom, and frequent verbal abuse and intimidation. Mental violence (long-term abuse, threats, economic control) also belongs to domestic violence.

2. Application conditions for personal safety protection orders

  • divorce is not required and can be applied separately during the marriage.
  • You don't need to prove that domestic violence has occurred, and you can apply in the face of the "real danger" of domestic violence.
  • After the court accepts it, a ruling should generally be made within 72 hours; in case of emergency, it should be made within 24 hours.
  • The protection order shall be valid for no more than 6 months and may be revoked, changed or extended before its expiration.

3. Consequences of a breach of a protection order

if the respondent violates the protection order, the court may admonish, fine or detain him; if the case constitutes a crime, he shall be investigated for criminal responsibility according to law (such as the crime of refusing to execute the judgment).

4. Boundary Conditions: Which Situations Are Not Domestic Violence?

1. Occasional spousal quarrels, minor pushing and shoving the minor pushing and shoving in general family disputes and occasional quarrels usually do not constitute domestic violence in the legal sense. Domestic violence requires persistence, regularity, or severity.

2. Proper parental discipline of children reasonable and moderate education and punishment do not belong to domestic violence, but corporal punishment and beating constitute abuse.

3. Violence in cohabiting relationships although the law against domestic violence applies primarily to family members, violence in cohabiting relationships can also be applied by reference. If a cohabitant is subjected to violence, he or she may also apply for a personal protection order.

5. Operational Steps: Domestic Violence Evidence Collection List

  1. call the police immediately: the alarm record is the most important evidence. The police are required to issue the alarm receiving and handling record, inquiry record and injury identification when necessary.
  2. Timely medical treatment: keep the hospital's diagnosis certificate, medical record, examination report and medical expense invoice, and the doctor's injury description has important proof force.
  3. Take photos and videos: take photos of the whole body and close-up of the injured part, and record the shooting time; If you encounter violence at home, you can record and record the video under the premise of safety.
  4. Keep written evidence: the abuser's letter of repentance, letter of guarantee, and WeChat apology record; Records of complaints to women's federations, communities and neighborhood committees
  5. application for injury identification: go to the identification institution designated by the public security organ for injury identification, and the perpetrator of minor injury or more may bear criminal responsibility
  6. applicant's personal safety protection order: submit an application to the basic court of the place of residence of the applicant or the respondent or the place where the domestic violence occurred, and the above evidence may be attached. The basic people's courts of all districts in Ningbo (Haishu, Jiangbei, Zhenhai, Beilun, Yinzhou, Fenghua, Yuyao, Cixi, Ninghai, Xiangshan) can accept the application, and the application is not based on divorce.

6. common mistakes

myth 1: Domestic violence is a "housework" and outsiders cannot manage it. Domestic violence is not a private matter, and public security organs, courts, women's federations and communities are obliged to intervene. The Anti-Domestic Violence Law clearly defines a multi-agency cooperation mechanism.

Myth 2: To apply for a personal protection order, you must divorce first. A protection order can be applied for separately without divorce, the purpose of which is to protect personal safety and is not necessarily linked to divorce proceedings.

Myth 3: Domestic violence is only when you hit "blue and purple" mental violence (long-term abuse, threats, economic control) is also domestic violence, but it is difficult to provide evidence. It is recommended to keep audio recordings, chat records, witness testimony, etc.

Myth 4: Domestic violence victims will lose custody domestic violence is an important factor affecting custody, but it is not an absolute factor. The court will consider the interests of the children comprehensively. If the abuser shows repentance and does not affect the safety of the children, he may still obtain custody.

Summary of 7. relevant laws and regulations

the main legal provisions covered in this paper include:

  • article 2 of the Domestic Violence Act
  • article 1079 of the Civil Code
  • 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

it is difficult to obtain evidence of domestic violence. The difficulty lies in the fact that the parties often hope to collect all the hard evidence at one time before taking action. As a result, they miss the time when they are most likely to leave traces. In practice, it is more effective to treat every infringement as an event that needs to be marked on the spot: when calling the police, it is clearly required to issue a receipt of receiving the police, make a record and assist in medical identification; On the same day, go to a regular hospital and truthfully explain the cause of the injury; The injury photos, bills, messages and audio recordings are backed up to the cloud or kept by a trusted person. The alarm is not based on the severity of the injury. The police record in the minor injury stage is the key to prove the recurrence of the injury in the future.

The applicant's personal safety protection order does not have to be based on the premise of filing a divorce. It can be filed separately within marriage, and it is not based on the condition that the infringement has already occurred. It can be filed in the face of real danger. The court will generally make a ruling quickly after accepting it. Therefore, don't wait to accumulate enough evidence before applying. Act decisively when you feel you are in danger. The term of the protection order is limited and can be changed or extended before it expires. Once the other party violates it, it can claim admonition, fine or even detention accordingly. This is very binding on people who care about their work and reputation, and it is also a real card in the negotiation.

What needs to be reminded is that safety always takes precedence over evidence. If there is danger at the scene, evacuate first and then ask for help. Do not stay in danger for shooting and evidence collection, and do not destroy the records already obtained because the other party apologizes. Such verbal reconciliation is very unstable and will cut off all subsequent relief. If the parties concerned shirk their family affairs, they insist on issuing a receipt and making a record, which can be reflected through higher authorities or relevant rights protection channels. Only by leaving a trace of every request for help, and then planning the protection order together with the subsequent divorce and damages, can we really get out of the violent relationship.