"寧拆十座廟，不破一門婚" —— 家庭暴力離婚案件審理研究

Abstract

Domestic violence is like a ghost, wandering in every corner of the world. The incidence of domestic violence in China is between 29.7% and 35.7%, and there are about 450 million victims. Domestic violence is “the evil of human nature, the pain of family, the trouble of society and the woe of civilization”, which seriously endangers women’s life safety, physical health, personal dignity and family happiness. On March 1, 2016, the Anti-Domestic Violence Law was promulgated, which showed the world China’s “zero tolerance” attitude towards domestic violence. However, the law is not enough to enable people to act accordingly. In a society influenced by the concept of “men are superior to women” for thousands of years, what is the trial situation of domestic violence cases in judicial practice? What is the recognition rate of domestic violence? Besides evidence, are there any other factors that affect the judge’s decision? These are all areas that cannot be ignored to gain an insight into the anti-domestic violence. At the same time, more than 90% of the victims of domestic violence are women. Therefore, if this issue cannot be given enough attention, the “gender equality” advocated by the government can only be “illusory equality”.

Divorce lawsuits involving domestic violence are taken as the research object in this paper, which consists of seven chapters. Chapter 1 is the introduction. Chapter 2 introduces the concept, characteristics, classification and causes of domestic violence. A historical investigation is made in chapter 3 on the legislative practice, judicial practice and the legislative process of anti-domestic violence of divorce law, and together with chapter 2 are taken as the background information of the research in the whole text. Chapters 4-7 are the main contents of this paper. The divorce cases which are settled in the form of judgment are studied in chapter 4. Through the analysis of the judgment of 200 cases randomly selected, an in-depth study on the overall situation of the divorce cases involving domestic violence, as well as the trial situation of divorce appeals, child support, property rights and interests, etc. is carried out. The mediation process of divorce cases involving domestic violence is studied and the “secondary harm” of mediation to the victims is revealed in chapter 5. The legal, cultural, social, economic and self-factors that affect the judge’s judgment from the perspective of the judge are analyzed in chapter 6. Comments and suggestions are given for improvement in a targeted way in chapter 7.

The innovation of this paper is as follows.Firstly, it is the innovation of research content. A comprehensive and systematic study on the trial of divorce lawsuits involving domestic violence is carried out and the current situation of neglecting, deleting and weakening domestic violence in the trial practice is revealed. In addition, the problem that the right of free divorce, property right and child support right of the victims are not properly protected is put forward in this paper. Based on the analysis of the reasons, the author puts forward some suggestions on the construction of the trial system of “zero tolerance” against domestic violence. At the same time, empirical support is provided for the ongoing reform of the judicial system and the family matters judging system in this paper. In the process of promoting the reform of the judicial system, we must start from the two aspects of “person” and “case” in order to truly realize the judicial fairness; in the process of promoting the family matters judging system, we must pay attention to the special situation of cases involving domestic violence and separate them from ordinary divorce cases. In my opinion, in addition to the improvement of the law and the reform of the judicial system, more importantly, it is the transformation of social consciousness and the substantive realization of equality between men and women.

Secondly, it is the innovation of research perspective. In the study of China’s judicial system, especially the divorce cases involving domestic violence, few people focus on the judge. In a written law country, people think that the judge is only passive to find out the facts and apply laws. However, through questionnaire and in-depth interviews, the reasons for the low recognition rate of domestic violence are revealed with a large number of first-hand materials in this paper. In addition to the “difficulty to obtain evidence” and “difficulty to authenticate”, it is also because the judge, as a “rational person”, is comprehensively affected by various factors such as culture, society, economy, social support system and their own safety etc. under the vague legal provisions. This also proves that domestic violence is a social problem and anti-domestic violence is systematic work.

Thirdly, it is innovation of research methods. The author uses empirical research methods to sort out the real situation of domestic violence cases in judicial practice through the analysis of a large number of judgment documents and case files. In the study of mediation cases, the author selects typical cases, uses the method of discourse analysis to analyze the discourse interaction between the judge and the parties involved to see how “neutral” judge weakens the victim’s appeal of domestic violence in the process of mediation, and vividly demonstrates the “secondary harm” of mediation to the victim.

Date of Award	22 May 2020
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Chunyan DING (Supervisor) & Xin Frank HE (Supervisor)