Research On The System Of Habeas Corpus

Since the 1990 s,China has gradually attached importance to the crime of domestic violence,and in recent years,the system of habeas corpus has been introduced into China.The personal security protection order of our country has the nature of act preservation and personal right claim,which has changed from the original civil compulsory measure to an independent special procedure in procedure.In addition,the ex ante remedy mode of habeas corpus system effectively curbs the growth of domestic violence cases,reflects the comprehensive protection of the rights and interests of victims in the application of special procedures,advocates the concept of freedom of marriage while achieving equality between men and women and family harmony.The 934 civil verdicts on personal safety protection orders published by China's Judicial Documents Network were collated and analyzed.Among the results of the issuance of habeas corpus order in China,the rejection or partial support of the court decision and the withdrawal of the application by the applicant account for nearly one-third of the total.Insufficient or no evidence is the main factor for the court to reject the victim's application.The first prohibition of violence and the second prohibition of harassment,tracking and contact are generally applied in the relief measures of the habeas corpus system,while the third removal order and the fourth clause are less than 8%.After an empirical study and analysis of the system of habeas corpus in China,it is concluded that in the process of implementation of habeas corpus,the problems such as unclear standards of burden of proof and types of evidence,incomplete protection measures,difficult delivery and implementation,and too light legal responsibility for violation of habeas corpus are becoming increasingly prominent.The system of habeas corpus in the United States,Britain,Japan and Taiwan is more mature than that in China.Some effective practices may be worth learning from.After the double analysis of the theory and practice of the system of personal safety protection order,this paper puts forward some suggestions and countermeasures: on the burden of proof and the standard of proof,the principle of "who advocates,who evidences" should still be applied and the standard of evidences should be adopted to reduce the burden of proof of victims and expand the scope of admissibility of the evidence of domestic violence identification;and onthe protection measures,the principle of "who advocates,who evidences" should still be applied.It is appropriate to further enrich the protection content of habeas corpus,extend the prohibition scope of expulsion order to study and work places,and add the content of property protection order;in the service and execution,it is necessary to highlight the initiative of public security organs as executing subjects,clearly divide the specific functions of public security organs,people's courts and other assisting units;in the bearing of legal responsibilities,we can take a textual research.Consider incorporating the crime of violating habeas corpus into the Anti-Domestic Violence Law or the Criminal Law of China to deter the perpetrators.