Overview of China's Protection Order System

Introduction

China has recently begun to experiment with a personal protection order (人身安全保护裁定 but commonly shortened as 保护令) system in domestic violence situations. In March 2008, the Practical Legal Research Institute of the Supreme People’s Court (最高人民法院中国应用法学研究所) issued the Trial Guide for Divorce Cases Involving Domestic Violence (涉及家庭暴力婚姻案件审理指南) (hereinafter referred to as the “Trial Guide”). The status of this foundational document suggests the cautious nature of the Chinese government’s approach to protection orders. As one commentator pointed out, the Trial Guide is merely “an internal, guiding document” (内部的指导性文件) and therefore cannot be directly invoked in court decisions. (The Trial Guide, however, does refer to China’s Law of Civil Procedure (Clause 140, Item 11), which includes a catch-all provision authorizing courts to issue “orders” (裁定) in “other matters that require an order to resolve.”) Also, like other legal experiments, the Chinese government has limited the geographic scope of the new protection order system by designating only nine basic-level (i.e., trial) courts (基层人民法院) as “trial sites.” (I am in the process of compiling a list of these trial sites.)

Chapter Three of the Trial Guide lays out the structure of the protection order system. I review the major features of this structure below.

Standing
The Trial Guide’s limits on the standing of petitioners for protection orders (i.e., who can petition for a protection order) show that the Trial Guide’s authors were exclusively focused on separation violence between spouses during the divorce process. Three requirements limit the pool of petitioners: First, the petitioner must be the spouse or ex-spouse of the abuser. Trial Guide, Chapter 3, Clause 31. Second, if the petitioner and abuser are still married, the petitioner must file for divorce within fifteen days of obtaining a protection order; otherwise, the protection order automatically expires. Id. Third, if the petitioner and abuser are no longer married, the petitioner must apply for a protection order within six months of the divorce. Id.

The above limits on petitioners’ standing severely restrict the utility of the protection order system and may actually lead to the intensification of abuse. The first limit (the petitioner must be spouse or ex-spouse of the abuser) denies protection to victims who are not married to their abusers. (In an article published by the All-China Women's Federation, Xia Yinlan, President of the International Education School at the China University of Politics and Law, similarly argues that the standing of petitioners (主体范围）should be expanded to include cohabitants and ex-spouses.) This limitation probably reflects the Chinese government’s continued refusal to recognize the legitimacy of non-marital intimate relationships. Despite this official squeamishness, it is clear that domestic violence is not limited to only married couples but also unmarried, intimate partners. The second limitation (petitioner must file for divorce within fifteen days of obtaining a protection order) denies protection to victims who still hope to reconcile with their abusers or are not ready to file for divorce due to emotional, financial or other reasons. Ironically, this requirement may expose petitioners to intensified abuse by forcing them to file for divorce in order to keep their protection orders. The third limitation (petitioner must apply for a protection within six months of divorce) denies protection to large numbers of victims who are abused by ex-spouses and fails to recognize that abuse may continue long after divorce.

Time Limits

A spouse may obtain an “emergency protection order” for fifteen days. (Trial Guide, Chapter 3, Clause 29.) At the time of application, the petitioner need not have filed for divorce. However, if the petitioner has not filed for divorce within this fifteen day period, the protection order automatically expires. As discussed above, this fifteen-day rule forces petitioners to file for divorce to retain their protection orders. This rule may represent a misguided attempt by the Trial Guide’s drafters to break the cycle of violence and push victim-spouses out of their abusive relationships. (Indeed, the Trial Guide (Chapter 1, Clause 5) includes a brief discussion of the cyclical nature of domestic violence.) Although well-meaning, such paternalistic measures ignore the victims’ subjectivity and may lead to an intensification of violence.

“Long-term” (长期) protection orders may last between three to six months and up to twelve months with the approval of the court’s vice president. (Trial Guide, Chapter 3, Clause 9). Compared to most jurisdictions in the United States, the time limit on “long-term” protection orders is very limited. For example, the maximum length of a final protection order in Pennsylvania (referred to as a Protection From Abuse order) is three years. Other jurisdictions, like New Jersey, offer life-time protection orders.

Relief

The Trial Guide provides for a wide array of relief:
1. Prohibit the respondent from battering or threatening the petitioner or petitioner’s relatives;
2. Prohibit the respondent from harassing or stalking the petitioner or from engaging in unwanted contact with the petitioner or minor children who might be harmed;
3.If necessary and conditions are present, order the respondent to temporarily move out of the parties’ common residence;
4. Prohibit the respondent from engaging in activity within 200 meters of the following places: petitioner’s residence, school, work unit, or other places frequented by the petitioner;
5. When necessary, order the respondent to attend and pay for psychiatric treatment; and
6. Other measure to protect the personal safety of the petitioner and certain relatives.
(Chapter 3, Clause 27).

In addition, the Trial Guide authorizes the following forms of “ancillary content” (附带内容):
1. Order the respondent to pay for the petitioner’s living expenses and minor children’s care expenses, educational expenses, etc.
2. Order the respondent to pay for medical expenses incurred by the petitioner due to the respondent’s violent conduct, appropriate psychiatric treatment, and other necessary expenses.
(Chapter 3, Clause 28)

While the Trial Guide authorizes many forms of relief, my initial review of media reports suggests that courts have only implimented one type, i.e., prohibiting the respondent from physically abusing or threatening the petitioner. The reluctance of courts to order other forms of relief may be due in part to the Trial Guide's vagueness regarding the appropriate conditions for ordering other, more robust forms of relief. For example, the Trial Guide provides no guidance (ironically) as to when it is "necessary" or what "conditions" need to be present to evict the respondent from the parties' common residence. I will examine media reports on specific protection order cases in greater detail in later blogs.

(To be continued.)