A Study On Civil Protection Orders

Domestic Violence is a violation of victims' personal rights.For a long time,domestic violence was wandering at the edge of legal and illegal,however,along with the development of the modern conception of human rights and the progress of the theory of personality right,most of countries(regions)have admitted that the nature of domestic violence is illegal and legal relief should be taken to protect victims.The consequence of this trend is the born of a new legal remedy,Civil Protection Orders.Civil protection orders are defined as a new kind of civil legal relief measures,compared with the traditional civil relief,it mainly reflects in three ways.First,civil protection orders have changed the traditional pattern,which mainly depend on compensation for damages of civil torts,and turn to stop the infringement as the primary relief way.Second,as a kind of public power remedy for the private rights,protection measures reflect a new trend,which jus publicum has already extended to the Ius privatum field in marriage and family law.Finally,not only does the civil protection orders reflect characteristics of a combination of jus publicum and Ius privatum,but also a combination of substantial law and procedural law,as a result,protection orders have set a complete and independent new civil relief.These new features have made the civil protection orders be a independent institutional system,which means there are many differences,such as legal characteristics,validity,application and enforcement,between civil protection orders and general civil relief.In practice,civil protection orders are divided into emergency order of protection and common order of protection generally,including restraining orders,stay away provisions,vacate orders and so on.Based on the uniqueness of domestic violence,protection measures are mainly suitable for broad definition of domestic violence,and gradually extend the protection scope because of the expansion family law.For the inclined protection of victims' interests,civil protection orders suit their own unique application standards and jurisdiction provisions.Considering the privacy of domestic violence and the weak position of victims,the certificate standard of orders is low,and the procedure is relatively simple and quick,which embodies the value of efficiency prior to fairness.In order to ensure the realization of protecting the rights and obligations in protection orders,the importance of enforcement is generally noticed in domestic and international legislation,which are both devoting to change the status quo of enforcement.In domestic,enforcement legislation are divided into two models,including initiative&passiveness,while across jurisdiction levels,the focus mainly on cross-regional implementation issues.On December 27,2015,the 12th NPC Standing Committee of China passed the Act on Protection Against Domestic Violence(APADV)on the 10th meeting,and put it into implementation on March 1,2016.Before the foundation of civil protection orders,the Cases Involving Domestic Violence Marriage Guide,which released by institution of law,the Supreme People's Court,has made 8 years good practice.China Law Society set up Civil Protection Orders in "Domestic Violence Protection Law",too.Compared with civil protection orders,the naming way of personal safety orders,which belongs to the category of narrow sense of civil protection order,reflect the characteristic of the personal rights protection."The primary thing in the world must have a simple shape",so,how to perfect personal safety order system in legislation and practice,not only related to the "life and death" to the system itself,but also more about personal right protection of China's vast domestic violence victims.So,based on China's basic national conditions,we should compare the difference between laws in foreign countries and select the best methods to imply in China.This dissertation has been divided into five parts,including:The first chapter introduces the overview of Civil Protection Orders.This chapter concluded some naming methods of protection orders,and compared with Habeas Corpus in criminal procedure.According to different legislation,this chapter defines the conception of civil protection orders.At the same time,based on different classification standards,civil protection orders have been categorized into personal and property,emergency and common,single and mutual orders.Further more,orders have different forms,including restraining orders,stay away orders,no contact orders and vacate orders,etc.At last,civil protection orders are a complete,independent system.For the basic goal that inclined protection of victims,three main values,human rights protection,freedom of marriage and efficiency comes first,are reflected at everywhere in the whole system.The second chapter analyze the validity.This part is based on the nature of the right,claim right of the personal right,to be the foundation of the effectiveness,and divide the conception of effectiveness into object,time and space according to jurisprudence.The validity of object includes sorts of violence and subject,and the validity of time emphasis on the starting point and the duration of protection orders,lastly,the effectiveness of space is aimed at exploring the scope of inner and outsider of a sovereign,state and finding the way to solve conflicts between the different effectiveness.In line with the principle of knowing the real meaning of victims,the effectiveness of the civil protection order change should be taken a careful attitude.Because protection orders are the civil justice system which influenced the basic rights of both parties,it is very important to protect the interests of both sides equally and receive dissent of order effect.At the same time,in domestic violence environment,civil relief and criminal remedy are both needed,and there is no doubt that criminal punishment is a very important way to solve these questions.For distinguishing the two methods,and avoiding the the generalization of criminal law,however,it is important to clarify the edge between civil and criminal measures.The third chapter summarizes the application of civil protection orders.Considering the victim's weak position,the application of the civil protection order shall be appropriate to lower the standard of proof according to the specific details of a case and procedure.In order to protect victims immediately,legislation should extend the application corpus,simplify the application form,exempt the application fee.Different countries(regions)lead to different issuance of orders,and the scope of extraterritorial jurisdiction included not only civil and criminal court,but also administration,especially police office.In order to issue measures immediately,and also give consideration to fairness and justice,a lot of application regime set up a corresponding system of objection for civil protection orders.The forth chapter explores the enforcement of civil protection orders.Execution is the very key to the whole system.In the early part of his chapter,on one hand,gives some theoretical analysis for the legitimacy of court,government and non-government organizations in executing orders,on the other hand,exploring the advantages and disadvantages of the model of separation of judicial and executive branches by court.With the information transferred by Hague Conference on Private International Law and "Recognition and Enforcement of Foreign Civil Protection Orders" drafted by the Permanent Bureau,the middle part makes a comparative research of enforcement legislation among some countries(regions),and some international organizations.Meanwhile,this part introduces the enforcement modes in Taiwan,China,and America emphatically,which are initial and passive respectively.In addition,due to the broad network and full asylum experience,some non-government organizations,such as Women's Shelter,plays a very important role in supplementary enforcement-What's more,two modern technological means,which developed by America,also play a an irreplaceable role in enforcing the protection measures.The final chapter,which on the basis of former dissertation,according to more than years' practical experience,puts forward some perfect strategies from three aspects,validity,application and enforcement,to the personal safety orders.The establishment of the personal safety Orders is a historical process,based on years of legislative experience,the APADV eventually set up an independent protection order system.Combined with the legislative status quo and practice situations,no category,lack of content,defect in validity,no rules about proof,no effective enforcement all prevent the function of orders from coming true.For different reasons,based on some presenting concrete cases and some advanced legislative experience in other countries(regions),through modifying some provisions,expanding judicial explanations,supplementing miscellaneous provisions,this chapter,with the principle of the legal system stability,puts forward some improvement opinions to perfect China's legislation.