关键词：未成年人 家暴 公权力
Strengthen the Guardianship of ‘Public Power’ over Children
Keywords: children, domestic violence, public power
Abstract: This article analyzes the domestic violence suffered by children and briefly describes the impact of domestic violence on them. We can learn from the effective measures of other countries to use public power to protect children and put forward relevant suggestions based on national conditions.
1. The Impact and Problems of Domestic Violence
A philosopher once said that ‘lucky people use their childhood to heal their lives while unfortunate people use their lives to heal their childhood’. Children in the shadow of domestic violence experience the pain prematurely, and some of the bad effects may even last their lives.
Domestic violence tramples on children’s dignity, destroys family harmony, and affects their social stability. Under the influence of traditional concepts, Chinese parents are prone to the idea that ‘children are their own private property’, upholding the concept of ‘spare the rod and spoil the child’ and ‘stick-style’ education . Beating and scolding of children is classified as ‘family chores’ in Chinese society and is a method of educating children. If children are not severely abused, general domestic violence is difficult to attract the attention of people around, and it is difficult for relevant departments to intervene.
The Anti-domestic Violence Law of the People’s Republic of China defines ‘domestic violence’. ‘The domestic violence referred to in this law refers to the methods of beating, binding, mutilating, restricting personal freedom, and frequent abuse and intimidation among family members. The physical and mental violations carried out [“The People’s Republic of China Anti-Domestic Violence Law’. ‘With the development of society, people’s education and awareness levels have improved, and the forms of domestic violence are no longer limited to the traditional types.’ ‘Witnessing domestic violence’ is also included in the category of domestic violence. On November 27, 2019, the Guangdong Province’s Measures for the Implementation of the Anti-Domestic Violence Law of the People’s Republic of China (Draft) were submitted to the meeting for deliberation. Article 58 clearly stipulates that ‘children who witness domestic violence are victims of domestic violence’. The diversification of forms of domestic violence increases the risk of children suffering from domestic violence. Scholar SpringerK.W believes that children who have been abused by their parents will be plagued by depression, anxiety, anger and other emotions and a series of physical symptoms as they grow older. This paper has been cited more than 850 times since it was published in the official journal of the International Association for the Prevention of Child Abuse and Neglect in 2007. In addition, domestic violence has the characteristics of intergenerational transmission, and these children will be very likely to use violence against their future spouses and next generation. This is a typical vicious circle, not only for individuals and families, but also for society and the country as a hidden danger that cannot be underestimated.
Parents, as guardians of children, should have assumed the obligation to take care of their lives and protect their legal rights and interests. But now, many violent parents have become a source of nightmares for their children. According to the Civil Code passed in 2020, the people’s court can revoke the qualification of guardian only if it severely infringes the ward or puts the ward in a state of danger. In a typical case of revoked guardian qualifications announced by the Supreme Court, Lin (female) in Fujian Province repeatedly used a kitchen knife to cut the back and arms of his 9-year-old son Xiaolong (pseudonym), and beat his legs with tongs. Xiaolong was often let hungry. This abuse was repeated and serious. After the village committee’s application, according to law, the court revoked Lin’s guardianship of Xiaolong and designated the Wudian Village Committee as Xiaolong’s guardian. Xiaolong suffered a very intuitive and serious trauma, so he could be discovered, intervened, and tried in time, but there are more children who suffer from domestic violence that is concealed and difficult to be detected or judged. This is also why it seems compulsory to revoke parental custody , but with the higher difficulty in actual judgment. Can the protection of children only depend on guardians? Isn’t ordinary domestic violence worthy of attention? Those answers must be no.
2. Reference from Foreign Measures
In today’s world, public power has become a trend in the traditional judicial field. When dealing with domestic violence incidents in our country, we can consider using other countries to exercise public power to intervene in guardianship. For example, in Japanese Civil Code, two systems, ‘parental control’ and ‘minor guardianship’ are stipulated and the guardianship system belongs to the field of private law. However, the ‘loss of guardianship’ system was proposed in the 2011 Civil Law Revision. The government should use family courts to restrict parental guardianship.
The United States intervenes in the guardianship of children through a special agency, the Child Welfare Bureau, which participates in cases of abusing or neglecting children. After receiving reports from the public, the Child Welfare Bureau has the right to investigate. It assigns a child protection commissioner to contact the reported family 24 hours a day. At the same time, it has 60 days to contact the reporter to investigate the true situation, and to the court in serious cases Prosecute. In addition, the United States has deployed professionals in the community to provide help and relief to children in distress.
Canada focuses on preventing domestic violence. In addition to the clear provisions in the Criminal Law, it also unites the school teaching process to instill in children the concept of how to prevent domestic violence from the time they are in the kindergarten. When dealing with and responding to domestic violence, these countries not only have laws to follow, but also set up relevant activities and methods. The managing department implements various laws and regulations, at the same time, uses civic education to strengthen the preventive work of domestic violence, and actively uses public power to guarantee the protection of children.
‘Domestic violence children’ is difficult to be detected and intervened in time due to the concealment of violent behavior, the particularity of the subject’s identity, and the diversity of violence methods. In order to effectively stop the occurrence of domestic violence and further protect the legitimate rights and interests of children, ‘prevention, intervention, and relief’ methods should be improved to form a trinity prevention system.
(1) Strengthen people’s awareness of anti-domestic violence in prevention
At present, the concept of the masses in our country is still stuck in the state of ‘spare the rod and spoil the child’, especially in the underdeveloped rural areas. Due to the lack of parental education and the lack of reasonable discipline methods, more extreme discipline methods, such as beatings or insults will be adopted under extreme emotions. To strengthen people’s awareness of anti-domestic violence, the government should take the lead, innovate communication mechanisms and forms, and strengthen cooperation between the government and village committees. Regularly send professionals to publicize anti-domestic violence laws to the masses, guide the masses of society to change traditional concepts, improve the society’s awareness of the rights of children, and create a legal environment for children’s growth.
(2) Form a linkage mechanism in intervention
Improve and implement the mandatory reporting obligation system stipulated in Article 14 of the Anti-Domestic Violence Law. The current mandatory reporting obligations are not comprehensive in scope and do not cover all people. Second, the responsibility mechanism for failure to perform the reporting obligation is not specific. Article 35 of the Anti-Domestic Violence Law stipulates that ‘causing serious consequences’ is a prerequisite for punishing relevant personnel and institutions, which hinders the implementation effect of mandatory reporting and weakens the reporting entity’s performance The enthusiasm of responsibility.
On the other hand, because ‘domestic violence children’ are spatially secretive, it is difficult for public security organs to detect and intervene. The government can take the initiative to cooperate with schools, hospitals, communities and other relevant institutions to promptly contact the public security or the Women Federation for effective intervention when a child is found to have physical or mental health problems.
Improve the compulsory reporting mechanism and cultivate the citizens’ awareness of active reporting and intervention, unite the public, the government, schools and other relevant units to intervene in domestic violence.
(3) Improve judicial relief mechanism
Our country’s judicial practice implements the principle of ‘whoever advocates and presents evidence’. In domestic violence cases, the evidence is often provided by victims. Due to the younger age of children who are victims of domestic violence, they do not know how to protect their legal rights or appeal for themselves. We cannot count on the legal guardian of the abuser to provide evidence. In this regard, it is possible to relax the threshold for the proof of children, transfer part of the burden of proof to the perpetrator, and expand the sources of clues and evidence.
On March 1, 2016, China formally implemented the ‘Anti-Domestic Violence Law’, indicating that the country is committed to prohibiting any form of domestic violence. According to statistics of letters and visits from the China Women Federation, the Women Federation system received 44,071 domestic violence complaints in 2017, 39,371 complaints in 2018, and 36,002 complaints in 2019. It can be seen that the promulgation of special laws is indeed effective in reducing the incidence of domestic violence, but there is still room for improvement in the specific implementation intensity. Children are the future and hope of the country, and we are eager to establish a complete asylum mechanism to safeguard their fundamental rights and interests from the institutional level. At the same time, it is also hoped that more people in the whole society will participate in anti-domestic violence and minor protection actions to jointly guard their growth and development.
Writer: Yuzhen Fu
Translator: Yilin Wang
Editor: Xinrui Ding
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