The mother suffered domestic violence from her son. Court: issue writ of habeas corpus!
Source of information: Shanghai Court Network
Recently, Shanghai Minhang District people's Court (hereinafter referred to as "Shanghai Minhang Court") accepted a case in which an elderly mother applied for a writ of physical protection due to mental violence committed by her adult children.
[replay the case]
2022Year1Month4On the first working day of the New year, the filing Court of Shanghai Minhang Court accepted a special application. It turns out that Luo (female) could not stand her son's mental violence and wanted to apply for a writ of habeas corpus.
Luo complained that his son Xu was angry because he felt his parents' property distribution was unfair, so he beat him in order to vent his anger and smashed the doors and windows of the bedroom and gas stove in the house where he lived. and cut off the power lines of washing machines, water heaters, kettles and other appliances in the home.
oneMonth5In order to fully understand the situation, the case judge came to Luo's house to carry out on-the-spot investigation, filmed the scene, fixed the relevant evidence, and visited the village committee to understand the relevant situation. In order to ensure that a ruling could be made as soon as possible, the judge also served Xu face-to-face with the litigation materials of the case and summoned Xu to appear in court the next day for a hearing.
oneMonth6On the basis of the previous investigation, the judge organized Luo and Xu to hold a hearing and fully listened to the opinions of both sides. Luo said that his mother-son relationship with Xu had been living independently.2020Year1At the beginning of the month, Xu moved into his residence, after the two sides have been quarrelling, Xu said bad words to each other, and even hit him many times.2021Year11Since April, Xu smashed doors and windows and household supplies many times, the bathroom, kitchen and bedroom windows were all smashed, and gas stoves, washing machines, water heaters and other pipelines were all cut, making it impossible for him to live a normal life and live in fear every day. Spirit is tortured.
Xu argued that smashing doors and windows was suspected of being stolen from the home, so he wanted to know the situation and did not admit to beating his mother or destroying other daily necessities.
[in the case]
According to the evidence provided by the applicant Luo and the on-the-spot investigation, the Shanghai Minhang Court held that Xu deliberately destroyed the daily necessities and appliances of Luo's residence in this case, which was an act of violence, which not only violated public order and good customs, but also led to Luo's inability to live a normal life, no peace of mind, and mental oppression, which was enough to determine that the applicant Luo was suffering from domestic violence and the real danger of domestic violence. So a writ of habeas corpus was issued.
2022Year1Month7According to law, the Shanghai Minhang Court ruled as follows:
1.The respondent Xu is prohibited from committing domestic violence against the applicant Luo.
two。The applicant Xu is prohibited from contacting Luo.
3.The respondent Xu is prohibited from smashing or destroying the applicant Luo's residence.
4.Order Xu to start from the date of this ruling.5Move out of the applicant Luo's residence within days.
The court served the writ of personal protection on both sides on the same day, and at the same time served the writ of personal protection on the local public security organs and the village committee.
At present, Xu has moved out of Luo's residence within the time limit of the court after receiving the personal protection order.
Domestic violence refers to the physical and mental violations carried out among family members by beating, binding, maiming, restricting personal freedom, frequent abuse, intimidation and so on.
In this case, Xu deliberately destroys his mother's living environment, which is contrary to public order and good customs, which not only worsens Luo's normal living conditions, but also causes spiritual oppression to Luo, which is a kind of spiritual violence and meets the requirements for applying for a writ of habeas corpus.
Face"Domestic violence"The law establishes a writ of habeas corpus between the perpetrator and the victim"Separation wall". We hope that every family member will respect each other, love and understand each other, make home a real warm harbor and protect our happy life.
What is a habeas corpus?
A writ of personal protection refers to a ruling made by a people's court aimed at protecting the personal safety of the applicant and preventing the occurrence or recurrence of violence. The Civil Code of the people's Republic of China"Prohibition of domestic violence"It has been clearly defined.
How to apply for habeas corpus?
An application for a writ of habeas corpus shall be made in writing; if it is really difficult to apply for a written application, it may apply orally, which shall be recorded by the people's court. If you apply to the people's court for a writ of personal protection, no litigation fees shall be charged. It is not only free of charge, but also no longer limited to the principle of jurisdiction by the court of the defendant's domicile. The applicant or the grass-roots people's court of the place where the applicant resides or where domestic violence occurs can have jurisdiction.
Who can apply for habeas corpus?
There are two main types of applicants:
One is the victims of domestic violence or facing the real risk of domestic violence.
Second, if a person with no capacity for civil conduct, a person with limited capacity for civil conduct, or is unable to apply for a writ of personal protection due to coercion, intimidation and other reasons, his close relatives, public security organs, women's federations, nei***orhood committees, villagers' committees and rescue management agencies may apply on their behalf.
Conditions and time limit for application for writ of habeas corpus
The writ of habeas corpus should have three conditions: first, there is a clear respondent, second, there are specific requests, and third, there are cases of domestic violence or the real risk of domestic violence. After accepting the application, the court shall make a writ of habeas corpus or reject the application within 72 hours; if the case is urgent, it shall be made within 24 hours.
How long is the writ of habeas corpus valid?
The order for the protection of personal safety shall be executed by the court, and the public security organs, nei***orhood committees and villagers' committees shall assist in the enforcement. The period of validity shall not exceed six months and shall take effect from the date of making it. Before the writ of personal protection expires, the court may revoke, alter or extend it on the application of the applicant.
What are the legal consequences if the respondent violates the writ of habeas corpus?
If the offender violates the personal protection order, which does not constitute a crime, the court shall admonish him, and may impose a fine of not more than 1,000 yuan and detention of not more than 15 days according to the seriousness of the circumstances; if the case constitutes a crime, he will be investigated for criminal responsibility according to law.
[French Dictionary]
Law of the people's Republic of China against domestic violence
Article 23 If a party applies to a people's court for a writ of personal protection due to domestic violence or the real danger of domestic violence, the people's court shall accept it.
Article 26 The order of personal protection shall be made by the people's court in the form of a ruling.
Article 27 To make a writ of habeas corpus, the following conditions shall be met:
(1) there is a clear respondent
(2) there are specific requests
(3) there are situations where they have been subjected to domestic violence or are in real danger of domestic violence.
Article 28 After accepting the application, the people's court shall make a writ for the protection of personal safety or reject the application within 72 hours; if the situation is urgent, it shall be made within 24 hours.
Article 29 Writ of habeas corpus may include the following measures:
(1) domestic violence by the respondent is prohibited
(2) the respondent shall be prohibited from harassing, tracking or contacting the applicant and his related close relatives
(3) to order the respondent to move out of the applicant's residence
(4) other measures to protect the personal safety of the applicant.
Article 34 If the respondent violates a personal protection order, which constitutes a crime, he shall be investigated for criminal responsibility according to law; if the case does not constitute a crime, the people's court shall give him an admonition and may, according to the seriousness of the circumstances, impose a fine of not more than 1,000 yuan and detention of not more than 15 days.
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