On The Determination Of The Facts Of Domestic Violence In Divorce Proceedings

On March 22nd,2018,the Supreme People’s Court released a special report on judicial big data on divorce disputes,which showed that 91.43%of the cases involving domestic violence in divorce disputes in China were domestic violence committed by men against women,and 77.51%of the couples applied to the court for dissolution of marriage due to emotional disharmony.However,it is more noteworthy that "applying to the court for dissolution of marriage due to domestic violence",accounting for 14.86%,ranks second among the reasons for divorce.However,in judicial practice,the identification rate of domestic violence is not high,and there are still problems that judges will not,will not and dare to identify.The reasons are as follows:the current legislation’s criteria for identifying domestic violence are vague,and the judge’s initiative is weak due to the influence of the traditional litigant trial mode and proof thinking.The existing litigation mode and burden of proof are not suitable for the particularity of domestic violence cases,and the substantive justice of the cases cannot be realized.Moreover,the concerns of practical factors such as judicial assessment also affect the judge’s determination of the facts of domestic violence.At present,China’s legislation lacks a litigation mode and evidence rules that are compatible with the particularity of domestic violence cases.In addition,the victims have weak awareness of collecting evidence and have difficulty in locking evidence.When most "victims" of domestic violence file a marriage lawsuit involving domestic violence,the evidence they provide often fails,so it is difficult to identify the facts of domestic violence.In view of the particularity of domestic violence disputes in divorce proceedings and the actual situation of judge’s trial,this paper discusses the corresponding and reasonable way of fact finding.By combing the judicial practice cases in the past three years in two provinces,this paper summarizes the current situation of suing for divorce due to domestic violence and the conclusion of the court,and makes an analysis and discussion on the situation that the court does not recognize it.Mainly from the identification standard of domestic violence,the current litigation mode and the consideration of the problem from the perspective of judge’s vision as the main breakthrough point to analyze.This paper summarizes the remarkable characteristics of domestic violence cases which are different from ordinary civil litigation disputes,and focuses on the trial mechanism suitable for ascertaining the facts of domestic violence,which also provides a theoretical basis for proposing new measures for identifying domestic violence cases.Finally,it puts forward a new idea to solve the difficulty in identifying domestic violence in divorce cases.For example,on the basis of the original trial mode,we should limit the principle of debate,reasonably broaden the types of evidence,enrich judicial proofs,give full play to the inquisitiveness of judges’ authority in a timely manner,improve the rules of proof,and lower the standards for determining the facts of domestic violence,so as to make it more in line with the essence of domestic violence cases.Some suggestions are put forward to improve the identification of domestic violence cases,so as to provide reference for the application of this system and play a positive role in effectively protecting the legitimate rights and interests of domestic violence victims and preventing and stopping domestic violence.