Under the Criminal Law, victims are allowed to act in self-defense in limited circumstances when being attacked and may be exempted from criminal liability in such circumstances. If damage is caused to the wrongdoer in the course of self-defense, it will be deemed a legitimate act and be free from criminal liability.[82] This applies to victims of domestic violence cases.
The following is according to the Opinions on Legally Handling Domestic Violence Crimes, which was jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice in 2015:
The person shall not be criminally liable if he/she takes an action to stop domestic violence that is occurring, in order to save his/her own or another's personal rights from unlawful infringement to the extent of legitimate defense. If the defense is excessive, he/she shall be criminally responsible, but should be reduced or be exempted from punishment.
The standard of "significantly more than necessary" refers to being sufficient to stop and protect the defender from domestic violence, as determined based on the factors such as the severity of the domestic violence being committed by the abuser, the cruelty of the means, the environment in which the defender is, the degree of danger he/she faces, the means to stop the violence, the degree of significant damage caused to the abuser, and the severity of previous domestic violence incidents, etc.[83]
At the same time, the Opinion on Legally Handling Domestic Violence Crimes provides the following:
[…] full consideration of the factors of defense and fault responsibility in the case. For the intentional killing of the abuser due to severe domestic violence, physical and mental damage; or intentional killing of the abuser due to unbearable long-term domestic violence, the circumstances of the crime are not particularly bad, and the means are not particularly cruel, it can be considered as a lesser circumstance of intentional homicide under the Criminal Law.[84]
This issue is discussed in "Typical Cases of Punishing Domestic Violence Crimes According to Law," which was released by the Supreme People's Procuratorate on 28 April 2021. Specifically, the Supreme People's Procuratorate indicates that the case should be handled in a manner that correctly identifies the crime of intentional injury caused by domestic violence and legitimate defense, and properly grasps the special nature of criminal cases arising from domestic violence. The determination of defense should be made in accordance with the various factors stipulated in the Opinions on Legally Handling Domestic Violence Crimes.[85]It is unclear under the law. In practice, the likelihood for the employee to successfully claim constructive termination and severance pay for a reason related to domestic violation is very low. Under the Employment Contract Law, employees may resign and claim severance for the employer's failure to provide "employment protections" and "work conditions." However, the law does not elaborate what circumstances can fall within the scope of "employment protections" and "work conditions." Few court rulings consider this issue.
In addition, the Special Regulations on the Labor Protection of Female Employees require the employer to prevent and stop the sexual harassment of female employees. If the employer violates this provision and infringes on the legal rights and interests of female employees, the female employees may file complaints, reports, appeals and lawsuits in accordance with the law.[86] In theory, if the employer fails to protect a female employee from sexual harassment at the workplace, the female employee could be able to resign and claim severance. However, it is rare to see court rulings where female employees brought this type of claim and successfully won the case.
Therefore, we think that departure cannot be deemed "for good cause" if it is related to domestic violence.PRC law provides special protection for minors in domestic violence cases, such as restricting visitation and custody rights, depriving the abuser of guardianship, etc.
Rules on the custody and visitation rights of children are set forth under the Anti-Domestic Violence Law, the Guide to the Trial of Marital Cases Involving Domestic Violence, the Guidance on the Work of Sheltering and Assisting Victims of Domestic Violence and the Opinions on Legally Handling
Domestic Violence Crimes, e.g., depriving the abuser of guardianship, the principle of having the victim directly raise the children, soliciting opinions from the minor children before deciding on custody, suspending the aggressor's child visitation rights, restoring the aggressor's visitation rights, the manner, timing and place of the aggressor's visitation, etc.[88]