我国《反家暴法》适用的回首与展望——基于对4864份司法案例的整理和分析

Retrospect and Prospect of the Application of Anti-Domestic Violence Law of PRC—Based on the Collations and Analyses of 4864 Judicial Cases

摘要: 根据对《反家暴法》实施8年来4864份案件的分析，发现司法实践中女性指控方占绝对多数；各地方法律适用情况不一；举证责任多为受害人承担；人身安全保护令签发率较高。对部分案例进行分析，挖掘当前《反家暴法》存在的问题：家暴行为概念狭窄；“家庭成员以外共同生活的人”范围认定模糊，受害人举证困难，人身安全保护令签发标准不明。基于对这些问题的分析给出相应建议，应扩充家暴行为范围，使用空间、经济、情感三要素判断“共同生活”；明确“现实危险”的标准，给予检察机关代为申请保护令的资格；在举证过程中引入盖然性规则。

Abstract: According to an analysis of 4864 cases since the implementation of the Anti-Domestic Violence Law, it was found that female accusers account in the majority of cases; the application of the law is varied in different places; the burden of proof is mostly on the victims; and the rate of issue of a personal safety protection order is high. Several cases are analysed to dig into the problems with the Anti-Domestic Violence Law: the concept of domestic violence is narrow; the scope of “people living together who are not family members” is ambiguous; the standard of the issuance of a personal safety protection order is unclear; and it’s difficult for victims to prove. Based on the analysis, recommendations are given: the scope of domestic violence should be expanded, the concept of “living together” should be judged by using the three elements: space, economy and emotion; the standard of “real danger” should be clarified, the procuratorate should have the qualification to apply for protection orders on behalf of the victim; and the rule of probability should be introduced in the process of quoting.