Fighting Domestic Violence

China

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5. Prosecutorial considerations
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5. Prosecutorial considerations Start Comparison
5.1 Police procedures
5.1.1 When do the police get involved in domestic disputes or legal actions?
The police get involved in domestic disputes upon reporting by the victim, their legal representative, relatives, or for a person without capacity of civil activities or a person with limited capacity of civil activities, school, kindergarten, medical institution, community committee, social service institution, aid agencies and welfare institutions.[49]
5.1.2 What circumstances effect law firm involvement?
A victim of domestic violence, their legal representative or relatives may bring a cause of action to the court to obtain compensation under the Civil Code or to seek punishment on the abuser under criminal law. In both cases, the legal aid agency will provide legal aid to victims, their legal representative or relatives who suffer financial hardship.[50] In the case that a female victim of domestic violence is charged with a crime of domestic violence and claims self-defense, if she is in economic hardship, she is able to apply for legal aid.[51]
5.2 Standard of proof
5.2.1 Is proof required by any legal means?

The Criminal Law and the Civil Code provide protections for domestic violence victims. If domestic violence leads to divorce, the innocent party will have the right to claim compensation.[52] Under the Civil Code, victims of domestic violence have the right to claim compensation for expenses incurred for treatment and rehabilitation if needed.[53] Where the victim, their legal representative or relative brings up lawsuits under the Civil Code or prosecution against the abuser under the Criminal Law, they must provide evidence to prove their assertion.[54]

5.2.2 Are there any requirements regarding evidence and documents?
Where the victim, their legal representative or relative brings up a lawsuit under the Civil Code or prosecution against the abuser under the Criminal Code, they must provide evidence to prove their assertion.[55]For civil cases, judges will verify the evidence under applicable legal procedures in a comprehensive and objective manner, and independently apply the preponderance of the evidence standard.[56] For criminal cases, the evidence should be authentic and sufficient, and the burden of proof should be beyond a reasonable doubt.[57]
5.2.3 Is proof "beyond a reasonable doubt" required?
Yes,  proof "beyond a reasonable doubt" is required for criminal cases. 
5.2.4 Is the standard of proof different for ex parte orders?
Yes. To request an ex parte order, evidence is only required to prove existing domestic violence or potential domestic violence.[58]
5.3 Affirmative defenses
5.3.1 Are affirmative defenses available to the accused?
Yes. The accused can present affirmative defenses to show that they do not bear criminal liability or that they should be exempted from punishment due to legitimate reasons such as justifiable self-defense,[59] insanity,[60] etc.
5.3.2 Is willful intent required?
Under the Criminal Law, to prove crimes of intentional injury[61] and maltreatment,[62] willful intent is required. By contrast, under the Civil Code, willful intent is not required to claim compensation for damages as a result of domestic violence.
5.3.3 Are false accusations punishable for the victim?
Yes. The Criminal Law lists false accusations as a serious circumstance that will be applicable to all cases without distinguishing a domestic violence case from others.[63]
5.3.4 How is consent discussed in the law?

In a private prosecution case, the private prosecutor may reach a settlement with the defendant or withdraw the private prosecution before the judgment is pronounced.[64]

In public prosecution cases that meet certain conditions, the victim and the criminal suspect or defendant may reach a settlement, and the public security bureau, the people's procuratorate and the people's court can give a more lenient sentence to the criminal suspect or defendant.[65]

5.3.5 Is self-defense or insanity a defense?
Yes. The accused can present evidence of affirmative defenses to prove that they should not be criminally liable or that they should be exempted from punishment due to legitimate reasons such as justifiable self-defense,[66] insanity,[67] etc. However, compensation for damages cannot be exempted as a result of an affirmative defense such as self-defense or insanity.
5.4 Witness status
5.4.1 What is a witness's duty to testify honestly and completely?

A witness will testify and provide truthful evidence according to the requirements of courts, procuratorates and public security organs.[68] In a criminal procedure, if a witness refuses to testify before the court without a justifiable reason, the court may order the witness to appear before the court, unless the witness is the spouse, a parent or a child of the defendant.[69] By contrast, in a civil procedure, while it is a general rule that the witness must appear physically and testify in the hearing, under some specific circumstances and upon the consent of the court, a witness may testify through a written testimony, audiovisual transmission technique, audiovisual materials, etc.[70]

A witness will be liable for intentionally falsifying, concealing or destroying evidence. If the witness is dishonest, a fine may be imposed and/or detention and/or they will be charged criminally in accordance with the law.[71]

5.4.2 Who may abstain from testifying in certain situations?

A domestic violence victim who is not a physically or mentally disabled person or minor cannot refuse to testify due to fear of retaliation from an abuser or other reasons according to the Criminal Procedure Law.

5.4.3 What potential "excuses" can a witness raise to refuse to testify in a domestic violence action?

The potential excuses that a witness may raise to refuse to testify in a domestic violence action include the following:

  1. unwillingness to disclose sensitive private affairs
  2. fear of retaliation
  3. worry about a witness's own misconduct
5.4.4 What is the impact of domestic violence on witnesses who are children?

Yes. The Criminal Procedure Law[72] and the Law on the Protection of Minors provide special protections to minors who are testifying in domestic violence proceedings.

5.4.5 Can children be called upon to testify?
Yes. Children can be called upon to testify as long as they are provided with special protections, including notifying children's legal agents or adult relatives, representatives of schools or other suitable adults to be present, as well as taking other protective measures such as technical means and psychological intervention to protect children's privacy and legitimate rights and interests.[73]
5.4.6 What is the effect of a child victim on the charges against the offender?

The offender committing the crimes against minors will be severely punished according to the law. Probation is generally not applicable to adult criminals who rape minors. An injunction may be announced prohibiting criminals from engaging in work and activities related to minors during the probation period for suspension, and from entering primary and secondary school campuses, kindergarten parks and other places where minors are concentrated. Foreign offenders may be deported from the PRC in addition to the penalty.[74]

5.5 Penalties and sentencing; penalty enhancements
5.5.1 What are the penalties and sentencing laws for first-time domestic violence offenses?
There are no specific penalties and sentencing laws for first-time domestic violence offenses. Generally, punishment will be aggravated for frequent domestic violence offenses. An offender who commits domestic violence will be subject to administrative penalties or to criminal liability if the act constitutes a crime.[75]
5.5.2 Are there criminal penalties?
Yes, but not all. Serious behaviors may trigger criminal liabilities. In a less severe situation, administrative penalties may apply.
5.5.3 What is the result of a violation of an existing order for protection?
If the offender violates an existing order for protection and their act constitutes a crime, they will be subject to criminal liabilities; if it does not constitute a crime, the court will admonish the respondent and may impose a fine of no more than CNY 1,000 and detention of no more than 15 days, as determined based on the seriousness of the case.[76]
5.5.4 What fines and other penalties are imposed besides incarceration and liberty restriction?
The penalty for domestic violence offenses may include a warning,[77] admonishment and an order to accept the guidance of family education,[78] reprimanding the perpetrator, ordering the perpetrator to guarantee not to commit domestic violence, apologizing to the victim or paying an indemnity to the victim.[79] A pecuniary fine and/or the death penalty[80] could be imposed in addition to incarceration and liberty restriction.
5.6 Post-release restrictions
5.6.1 Does the law notify the victim of the offender's release from custody?
The law does not require any judicial authority or government authority to notify the victim of the offender's release from custody. However, a copy of the judgment or verdict will be provided to the victim[81] so that the victim will know how long the offender will remain in custody.
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