Women and Justice: Jurisdiction

Legislation

中国反对拐卖人口行动计划 (China National Plan of Action on Combating Trafficking in Women and Children) (2013)

Trafficking in persons

In March 2013, the State Council of China updated the China National Plan of Action to Combat Trafficking in Women and Children (2008-2012). The stipulated goal for this national plan is to reduce the occurrence of human trafficking and to improve the network to prevent human trafficking crimes. This national plan provides guiding opinions on various topics relevant to human trafficking, including but not limited to, cracking down on prostitution, increasing support for rural populations in low-income areas, guaranteeing nine-year compulsory education for all school-age children and adolescents, improving the protection mechanism for homeless minors, encouraging rural women to work, and encouraging the following people to find employment: people with disabilities, urban unemployed women, female college students and abducted women and trafficking victims who have been rescued.

拐卖人口

2013年3月,中国国务院办公厅制定并更新了中国反对拐卖人口计划(2008-2012)。计划的总体目标是遏制拐卖人口犯罪并完善预防拐卖人口网络。此项国家计划提供了许多有关拐卖人口犯罪方面的指导方针,包括但不限于严厉打击卖淫嫖娼犯罪、加强对低收入城乡结合部和“城中村”的支持、保障所有适龄儿童、少年接受九年制义务教育、健全流浪未成年保护机制、鼓励农村有外出务工意愿的妇女、残疾人、城市失业下岗妇女、女大学生和解救的被拐卖妇女创业就业。



禁止非医学需要的胎儿性别鉴定和选择性别人工终止妊娠的规定 (Provisions for the Prohibition of Non-Medical Needs for Fetal Sex Determination and Manual Termination of Pregnancy)

Abortion and reproductive health rights

The Provisions were adopted to implement the basic national policy of family planning, i.e. the “one-child policy” and to keep the sex ratio of the birth population within the normal range. Article 3 prohibits identifying the sex of the fetus for non-medical needs and to manually terminate the pregnancy because of the gender of the fetus, except for approval from the health administrative department or the family planning administrative department. Article 7 provides that if it is necessary for non-medical needs to terminate mid-term pregnancy (more than 14 weeks), an approval and corresponding certificate must be obtained from the family planning administrative department of the county-level people’s government, the sub-district office or the township people’s government. Article 7 further provides that if the fertility service certificate has been obtained and the pregnancy is terminated, the involved person shall be disciplined and educated by the family planning administrative department of the township people’s government, the sub-district office, or the county-level people’s government. The application for another birth shall not be approved until the facts are confirmed.

堕胎与生育权

为了贯彻计划生育基本国策、保证正常男女性别比例,国家卫生和计划生育委员会公布并实施了此规定。第三条规定,除在卫生和计划生育委员会的许可下,禁止任何单位或者个人实施非医学需要的胎儿性别鉴定和选择性别人工终止妊娠。第七条规定,在进行非医学需要下终止十四周以上的妊娠前,必须取得地方人民政府计划生育部门的许可。第七条还规定,如果在取得生育服务证后终止妊娠,当事者需接受人民政府计划生育部门的批评教育。如需申请新的生育服务证,必须经过事实确认。



中华人民共和国人口与计划生育法 (Law on Population and Family Planning) (2015)

Abortion and reproductive health rights

The Law on Population and Family Planning was adopted by the National People’s Congress on December 29, 2001 and amended on December 27, 2015.  This law stipulated the national policy popularly known as the “one-child” policy. It was amended in 2015 to allow and encourage each couple to have two children. Before the amendment, Article 18 provided that the State encourages citizens to marry and bear a child at a later age, and advocates one child for each couple, except in certain conditions prescribed by laws and regulations. As a result of the amendment, Article 18 provides that the State encourages citizens to have two children. Before the amendment, Article 27 provided that couples who bear only one child voluntarily shall be issued the Honor Certificate and enjoy the awards for parents of only one child. Article 41 provides that a citizen who bears children in violation of Article 18 shall pay the social upbringing fines according to law.

堕胎与生育权

本法规于2001年12月29日通过,于2015年12月27日修正。此法规规定了众所周知的“一孩政策”。此法规为了鼓励一对夫妻可以生育两个子女于2015年进行了修正。在修正前,法规的第十八条阐明了国家鼓励晚婚晚育,并在除特定法规下要求一对夫妻生育一个子女。在修正后,第十八条鼓励每对夫妻生育两个子女。修正前,第二十八条规定只生育一个子女的夫妻,国家发给《独生子女光荣证》并享受独生子女父母奖励。第四十一条规定,不符合本法第十八条生育的公民,应依法缴纳社会抚养费。



中华人民共和国妇女权益保障法 (Law on the Protection of Women's Rights and Interests) (2005)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Law on the Protection of Women’s Rights and Interests was adopted by the National People’s Congress on April 3, 1999 and amended on August 28, 2005. This Law stipulates that women have equal rights with men “in all aspects of political, economic, cultural, social and family life.” It also establishes the State’s responsibility to prevent domestic violence. Article 1 provides that “this Law is formulated to protect women’s lawful rights and interests, promote equality between men and women and allow full pay to women’s role in socialist modernization.” Article 7 provides that “[t]he All-China Women’s Federation and women’s federations at various levels shall, in accordance with the laws and charter of the All-China Women’s Federation,” uphold women’s rights and protect the rights and interests of women. Article 12 provides that the State shall “actively train and select female cadres” and “pay attention to the training and selection of female cadres of minority nationalities.” Article 23 provides that “[w]ith the exception of the special types of work or post unsuitable to women, no unit may, in employing staff and workers, refuse to employ women because of sex or raise the employment standards for women.” Article 23 also provides that “[t]he labor (employment) contract or service agreement shall not contain restrictions on her matrimony and child-bearing.” Articles 24 and 25 stipulate equal pay and equal opportunity for promotion for men and women. Article 26 provides that all units shall “protect women’s safety and health during their work or physical labor, and shall not assign them any work or physical labor not suitable to women,” and that “[w]omen shall be under special protection during menstrual period, pregnancy, obstetrical period and nursing period.” Article 27 provides that “[n]o entity may, for the reason of matrimony, pregnancy, maternity leave or breast-feeding, decrease a female employee’s wage, dismiss her or unilaterally terminate the labor (employment) contract or service agreement.” Article 45 prohibits husbands from applying for a divorce “within one year after childbearing or within 6 months after termination of pregnancy” of a woman. Article 46 prohibits domestic violence. Article 51 provides that “[w]omen have the right to child-bearing in accordance with relevant regulations of the state as well as the freedom not to bear any child.”

堕胎与生育权、家庭暴力、性别歧视、财产与继承权

1992年4月3日,全国人民代表大会通过了中华人民共和国妇女权益保障法并于2005年8月28日对此法进行了修正。本法规定妇女在政治的、经济的、文化的、社会的和家庭的生活等各方面享有同男子平等的权利。本法规定了国家预防和制止家庭暴力的责任。第一条阐述了“为了保障妇女的合法权益,促进男女平等, 充分发挥妇女在社会主义现代化建设中的作用,根据宪法和我国的实际情况,制定本法。”第七条规定,中华全国妇女联合会和地方各级妇女联合会依照法律和中华全国妇女联合会章程,代表和维护各族各界妇女的利益,应做好维护妇女权益的工作。第十二条规定, 国家积极培养和选拔女干部,并有适当数量的妇女担任领导成员, 国家重视培养和选拔少数民族女干部。第二十三条规定,各单位在录用职工时,除不适合妇女的工种或者岗位外,不得以性别为由拒绝录用妇女或者提高 对妇女的录用标准。第十三条还规定,劳动(聘用)合同或者服务协议中不得规定限制女职工结婚、生育的内容。第二十三和二十四条规定了男女同工同酬和晋升、晋级等方面男女平等。第二十六条规定,任何单位均应根据妇女的特点,依法保护妇女在工作和劳动时的安全和健康,不得安排不适合妇女从事的工作和劳动,妇女在经期、孕期、产期、哺乳期受特殊保护。第二十七条规定任何单位不得因结婚、怀孕、产假、哺 乳等情形,降低女职工的工资,辞退女职工,单方解除劳动(聘用)合同或者服务协议。第四十五条规定女方在怀孕期间、分娩后一年内或者终止妊娠后六个月内,男方不得提出离婚。第四十六条禁止家庭暴力。第五十一条规定 妇女有按照国家有关规定生育子女的权利,也有不生育的自由。



中华人民共和国婚姻法 (Marriage Law of the People's Republic of China) (2001)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination

The Marriage Law of the People’s Republic of China was adopted by the National People’s Congress on September 10, 1980 and amended on April 28, 2001. Article 2 provides that the marriage system is “based on the free choice of partners, on monogamy and on equality between man and woman.” Article 3 prohibits interference by a third party, mercenary marriage and exaction of money or gifts in connection with marriage. Article 6 provides the minimal marriage age is twenty-two for men and twenty for women. Article 13 provides that husband and wife shall have equal status in the family. Article 34 provides that “a husband may not apply for a divorce when his wife is pregnant, or within one year after the birth of the child, or within six months after the termination of her gestation.” Article 43 provides that neighborhood committee, villagers committee or the unit[1] to which the family belongs have an obligation to deter domestic violence. English version available here. 

离婚、家庭暴力、包办婚姻与早婚、性别歧视

本法于1980年9月10日第五届全国人民代表大会通过,于2001年4月28日修正。第二条规定中国实行婚姻自由、一夫一妻、男女平等的婚姻制度。第六条禁止包办、买卖婚姻和其他干涉婚姻自由的行为,禁止借婚姻索取财物。第六条规定结婚年龄,男不得早于二十二周岁,女不得早于二十周岁。第十三条规定夫妻在家庭中地位平等。第三十四条规定女方在怀孕期间、分娩后一年内或中止妊娠后六个月内,男方不得提出离婚。第四十三条规定居民委员会、村民委员会以及所在单位应当予以劝阻、调解家庭暴力。

[1] “Unit” is a term of art with strong communist connotations, which refers to the company/organization/group to which a person belongs.



中华人民共和国宪法(第四十八-四十九条)(The Constitution of the People's Republic of China (Articles 48-49)) (2004)

Employment discrimination, Forced and early marriage, Gender discrimination, Property and inheritance rights

The Constitution of the People’s Republic of China was adopted by the National People’s Congress and promulgated for implementation on December 4, 1982. It has been amended several times, with the most recent amendment occurring on March 14, 2004.  Article 48 provides that women and men have equal rights. It states that “[w]omen in the People’s Republic of China enjoy equal rights with men in all spheres of life, in political, economic, cultural, social and family life. The State protects the rights and interests of women, applies the principle of equal pay for equal work to men and women alike and trains and selects cadres from among women.” Article 49, moreover, provides that “violation of the freedom of marriage is prohibited. Maltreatment of old people, women and children is prohibited.” English version available here. 

就业、包办婚姻与早婚、性别歧视、财产与继承权

第五届全国人民代表大会于1982年12月4日通过中华人民共和国宪法。宪法经过几次修正,其中最近一次修正发生于2004年3月14日。第四十八条规定妇女享有同男子平等的权利。第十四条规定“中华人民共和国妇女在政治的、经济的、文化的、社会的和家庭的生 活等各方面享有同男子平等的权利。国家保护妇女的权利和利益,实行男女同工同酬,培养和选拔妇女干部。” 第四十九条规定禁止破坏婚姻自由,禁止虐待老人、妇女和儿童。



Domestic Case Law

周某与杨某1离婚纠纷,江苏省无锡市中级人民法院 (In re Zhou & Yang Divorce Litigation) Intermediate People's Court of Wuxi Municipality (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The appellant-wife appealed to the Intermediate People’s Court of Wuxi Municipality, Jiangsu Province in relation to the lower court’s refusal to grant a divorce. The appellant alleged that her marriage with the appellee was irreparably broken and that he had committed domestic violence against her. The appellant alleged that the domestic violence was corroborated by their daughter’s testimony and photographic evidence. The court held that even though the appellee might have beaten the appellant on at least one occasion, under the legal definition, domestic violence must constitute continuous multiple-time battery rather than [one occasional][1] conduct. Since the evidence submitted by the appellant was insufficient to demonstrate that the appellee’s conduct caused harmful consequences to the appellant, the court refused to grant their divorce. The court also admonished the appellee to fulfill his responsibility as a husband and to stop his "bad habits."

离婚、家庭暴力

上诉人周某因与被上诉人杨某1离婚纠纷一案,不服无锡市惠山区不准予双方离婚的判决,向江苏省无锡市中级人民法院提起上诉。周某称双方感情确已破裂,并且杨某1对其存在家暴行为。上诉人称双方女儿的证言与照片证据证明了家暴行为的存在。法院认为,根据证据,虽然不排除杨某1有打过周某的可能性,但家庭暴力不只是一次偶然性的行为,而是持续性多次施暴的行为。因为周某提交的证据不足以证明被上诉人的行为对周某造成了伤害,法院拒绝了周某的上诉请求。法院同时要求杨某1作为丈夫有所担当,戒除生活中的不良习惯。

[1] Note to draft: This concept is unclear.  The exact translation of the Mandarin phrase would be “one occasional conduct.” From the context of the opinion, it appears that this means that occasional conduct, even if more than once, may not be sufficient if it is not indicative of a pattern of abuse.



邓亚娟邓与北京手挽手劳务派遣有限责任公司一般人格权纠纷,北京市第三中级人民法院 (Deng v. Beijing Shouwanshou Co. Ltd.) No. 3 Intermediate People's Court of Beijing Municipality (2016)

Employment discrimination, Gender discrimination

The plaintiff sued the defendants for infringing on her equal employment rights. The plaintiff alleged that the job description for the courier position included: “Eligibility: Men.”  When Deng went for an interview, she was advised that “we never have women couriers.”  She was subsequently informed that Beijing Postal could not authorize an employment contract for her because she is female. The plaintiff requested relief of, among other things, an official apology and 50,000 Chinese yuan as compensation of for mental distress.  The court of first instance held that the defendants infringed upon the plaintiff’s right of employment equality under the People’s Republic of China’s Employment Law. The Court also rejected the defendants’ argument that the courier position fit within the statutory exceptions under “Special Regulations on Protection of Female Workers,” which prohibits female workers from working in certain fields involving heavy manual labor. The Court of first instance awarded 2,000 Chinese yuan as compensation for mental distress but denied the request for an official apology. Both the plaintiff and defendants appealed.  The Intermediate People’s Court affirmed the lower court’s determination that a courier does not fit within the statutory exceptions for positions “unsuitable for women.” The court also held that compensation of 2,000 Chinese yuan was commensurate with the damages suffered by the plaintiff, and that there was insufficient ground to require an official apology from the defendants to the plaintiff.

就业歧视、性别歧视

原告诉称被告侵犯了她与男子平等的就业权利。原告称被告公司招聘快递员广告的任职资格为“男”。在原告到被告公司面试时,被告人事部称:“我们这儿从来没有过女快递员。”之后被告公司称因为原告是女性所以总公司(邮政公司)不批准签合同。原告的诉讼请求包括被告进行书面赔礼道歉和精神损害抚慰金人民币50000元。原审法院认为根据《中华人民共和国劳动法》,被告侵犯了原告与男子平等的就业权利。被告辩称快递员职位属于《女职工劳动保护特别规定》下禁止女性从事的体力劳动。原审法院驳回了被告的辩解。原审法院判决被告赔偿原告精神损害抚慰金2000元,并驳回了原告要求被告赔礼道歉的诉讼请求。原告与被告均不服原审判决并提起上诉。中级人民法院维持了原审法院的判决,认为快递员职位不属于法律禁止女性从事的体力劳动。中级人民法院认为精神损害抚慰金2000元和原告受到的伤害程度能够匹配,而书面赔礼道歉的要求依据不足。



梁海媚与广东惠食佳经济发展有限公司、广州越秀区名豪轩鱼翅海鲜大酒楼人格权纠纷,广东省广州市中级人民法院 (Liang v. Guangdong Huishijia Economic Development Co. Ltd.) Intermediate People's Court of Guangzhou Municipality (2016)

Employment discrimination, Gender discrimination

The plaintiff sued the defendants for infringing upon her right to employment equality. The plaintiff alleged that the online advertisement posted by the defendants, to which Liang responded, required kitchen apprentices to be “men between the ages of 18 and 25.” The plaintiff further alleged that when she went to the restaurant, the receptionist informed her of the restaurant’s policy that “all employees in the kitchen should be men, even if a woman possesses the qualifications of a chef.” The plaintiff alleged that the defendants’ behavior violates Articles XII and XIII of the People’s Republic of China’s Employment Law, which provide that potential employees should not be discriminated against on the bases of ethnicity, race, sex, and religious beliefs. As relief, the plaintiff requested (1) an official apology from the defendants; (2) 21 Chinese yuan in damages for costs incurred by responding to the advertisement; and (3) 40,800 Chinese yuan in damages for emotional distress. The court of first instance held that the defendants’ actions constituted gender-based discrimination against the plaintiff. However, it found insufficient evidence for the plaintiff’s emotional distress and awarded 2,000 Chinese yuan in damages. It also denied Liang’s request for an official apology. Both the plaintiff and defendants appealed.  Relying on the explicit requirement in the advertisement and the receptionist’s explanations that the candidate be a man, the Intermediate People’s Court held that the defendants’ exclusion based on the plaintiff’s gender was unlawful and unreasonable and constituted gender-based employment discrimination. With respect to relief, the Intermediate People’s Court held that under the Supreme People’s Court’s interpretations, emotional distress normally should not be compensated in monetary terms unless there are severe consequences.  The Intermediate People’s Court held that compensation of 2,000 Chinese yuan was within the discretion of the lower court, and thus upheld the amount. The Intermediate People’s Court, however ordered the defendants to issue an official apology to the plaintiff in newspapers in the Guangzhou area.

就业歧视、性别歧视

原告诉称被告侵犯了她与男子平等的就业权利。原告称自己对被告的网上招聘广告进行了应聘。招聘广告要求厨房学徒须为“男性,18-25岁”。原告称在她去被告酒楼时,被告知公司规定厨房不找女工,即使具备厨师证也不行。原告称被告违反了《中华人民共和国劳动法》第十二条和第十三条的规定。法律规定,劳动者就业,不因民族、种族、性别、宗教信仰不同而受歧视。原告的诉讼请求包括(1)判决被告书面赔礼道歉;(2)判决被告连带赔偿原告因应聘产生的经济损失21元;(3)判决被告赔偿原告精神损害抚慰金40800元。原审法院判决被告的行为构成了对被告的性别歧视,但原告提交的证据不足以支持原告精神损害抚慰金的诉讼请求,并判决被告支付原告经济损失2000元。原审法院还驳回了原告要求被告书面赔礼道歉的诉讼请求。原告与被告均不服原审判决并提起上诉。根据被告招聘广告和前台工作人员对只招聘男性厨师的解释,中级人民法院认定被告对原告进行限制及排斥的行为不具有合法性,并且损害了女性应聘者的就业平等权。就赔偿问题,中级人民法院判决,在最高法院的解释下,因侵权致人精神损害,但未造成严重后果,受害人请求精神损害赔偿的,一般不予支持。原审法院酌情由被告赔偿原告精神损害2000元,属于原审法院自由裁量权范围,中级人民法院予以维持。中级人民法院判决被告向原告作出书面赔礼道歉。



施美丽故意杀人案,上海市崇明县人民法院 (People's Procuratorate of Chongming County v. Shi) Chongming County District People's Court of Shanghai Municipality (2014)

Domestic and intimate partner violence

On May 20, 2014, the defendant used a hammer to strike her husband’s head three times. She then asked her son to send her husband to hospital where he died. The Court found that throughout their marriage, the deceased often beat and abused the defendant. The day before the incident, the deceased beat the defendant for a long period of time. At approximately 5:30 AM the following day, the defendant, due to the history of abuse, decided to kill her husband. During the trial, multiple witnesses testified to the deceased’s long history of domestic violence. A letter signed by more than 100 people, including close relatives of the deceased, also confirmed that he had abused the defendant over a long period of time. The Court held that the defendant’s conduct qualified as murder. However, because her motive was her husband’s long history of domestic violence, the victim himself was also culpable. Because the defendant had little possibility of recidivism and because there was strong public sympathy for the defendant, the court sentenced her to four years imprisonment. She was due to be released on May 21, 2018. On August 29, 2017, Shanghai No. 1 Intermediate People’s Court ordered her release on parole.

家庭暴力

2014年5月20日,被告人使用榔头击打其丈夫张某某的头部三次。被告让儿子将张某某送至医院,张某某经医院抢救无效死亡。法院查明,在婚后,被害人经常打骂被告人。事发当天,被害人曾长时间殴打被告人。5月20日凌晨5时30分许,被告人因为长期遭受被害人打骂,遂起杀害张某某之意。庭审时,多位证人证明张某某的长期家庭暴力行为。100余人的请愿书也证明了此家庭暴力行为。法院认为,被告人的行为构成故意杀人罪。但是被害人也因为对被告人的长期家暴行为存在重大过错。因为被告人再犯可能性较小,并受到民众高度同情,法院判决被告人有期徒刑四年。被害人的羁押将于2018年5月21日截止。2017年8月29日,上海第一中级人民法院判决被告人假释。



杨江山、中国人民解放军第四五八医院医疗损害责任纠纷,广东省高级人民法院 (Yang v. China PLA Hospital No. 458) Higher People's Court of Guangdong Province (2018)

Abortion and reproductive health rights

Yang sued China PLA Hospital No. 458 for violation of his reproductive rights. The plaintiff alleged that his wife sought an abortion at the defendant-hospital and lied that she was unmarried. The plaintiff also alleged that the defendant did not meet its obligation to investigate Peng’s marital status and chose to believe Peng’s lie. The Court held that under Article 51 of the Law on Protection of Women’s Rights and Interests, “women have the right to reproduce and not to reproduce under the relevant state regulations.” Therefore, Peng’s right to voluntarily terminate pregnancy is protected by law. Moreover, according to the Supreme People’s Court’s authoritative interpretations of the Marriage Law, “courts should not support husbands’ damage claims based on infringement of their reproductive rights due to their wives’ termination of pregnancy.” Therefore, the defendant’s actions were not unlawful.

堕胎与生育权

原告杨江山诉称中国人民解放军第四五八医院损害了自己的生育权。原告称他的妻子于被告医院进行了终止妊娠手术并谎称自己未婚。原告还称被告没有尽到查清自己妻子婚姻状况的义务并轻信其妻子的谎言。法院认为,根据《中华人民共和国妇女权益保障法》,妇女有按照国家有关规定生育子女的权利,也有不生育的自由。因此,原告的妻子有自愿终止妊娠的法定权利。另外,根据《最高人民法院关于适用<中华人民共和国婚姻法>若干问题的解释》,夫以妻擅自终止妊娠侵犯其生育权为由请求损害赔偿的,人民法院不予支持。因此,被告无需承担侵权责任。



刘彩丽与张飞离婚纠纷,安徽省阜阳市中级人民法院 (Liu v. Zhang) Intermediate People's Court of Fuyang Municipality Anhui Province (2014)

Divorce and dissolution of marriage, Property and inheritance rights

Liu and Zhang held the wedding ceremony in 2009 and registered for marriage in 2011.  In order to marry Liu, Zhang paid a “bride price” of 96,080 Chinese yuan, and Liu’s dowry included a television, refrigerator, washing machine and several pieces of furniture. Liu filed for divorce in 2013, and Zhang requested Liu to return part or all of the bride price. The court found that the bride price was paid for the purpose of marrying Liu, and its payment led to difficulty in Zhang’s parents’ life after Zhang’s marriage. Thus, the court held that Liu was required to return a portion of the bride price. Considering the length of Zhang and Liu’s marriage and their standard of living during that time, the Court ordered Liu to return 32,000 Chinese yuan of the bride price. Moreover, the court found that Liu’s dowry was Liu’s personal property and Zhang had no interest therein.  Available here. 

离婚、财产与继承权

刘某与张某于2009年举办婚礼,于2011年办理结婚登记。张某为与刘某缔结婚姻关系,付给彩礼人民币96080元。刘某的嫁妆包括电视、冰箱、洗衣机和几件家具。刘某于2013年提起诉讼,要求与张某离婚,张某要求刘某退还彩礼。法院认为张某付给的彩礼是为了与刘某缔结婚姻关系,彩礼数额巨大,导致婚后张某家庭生活困难。法院判决刘某应退还张某部分彩礼。综合考量两人共同生活的时间及消费状况,法院判决刘某退还张某彩礼款32000元。同时,刘某的嫁妆属刘某个人财产,应依法由其个人所有。



朱朝春虐待案,武汉市中级人民法院 (People's Procuratorate of Wuhan City Hubei Province v. Zhu) Intermediate People's Court of Wuhan Municipality (2011)

Domestic and intimate partner violence

The appellant and the deceased were divorced in 2007 but continued to live as a married couple until the incident.  The appellant had a history of physical abuse. On the day of the incident, the appellant again beat the deceased with a leather belt, causing her to commit suicide. On the same day, the appellant turned himself in. The lower People’s Court held that the appellant had continuously beaten the deceased, causing her to endure physical and mental damage and commit suicide, and his actions constituted the crime of abuse. The appellant was sentenced to five years of imprisonment. Upon appeal, the Intermediate People’s Court upheld the conviction and affirmed the decision.

家庭暴力

2007年11月,被告人朱朝春与被害人刘祎协议离婚,但仍以夫妻名义共同生活。至案发前,被告人经常因感情问题及家庭琐事殴打被害人。案发当日,被告人持皮带抽打被害人,致使被害人持刀自杀。当日,被告人投案自首。湖北省武汉市汉阳区人民法院经审理认为,被告人经常性、持续性地采 用殴打等手段损害家庭成员身心健康,致使被害人不堪忍受身体上和精神上的摧残而自杀身亡,其行为已构成虐待罪。法院以虐待罪判处被告人有期徒刑五年。武汉市中级人民法院经依法审理,裁定驳回上诉,维持原判。



唐芳故意伤害罪,四川省高级人民法院 (People’s Procuratorate of Dazhou City Sichuan Province v. Tang) Higher People's Court of Sichuan Province (2013)

Domestic and intimate partner violence

The lower court convicted the appellant of intentional assault and sentenced her to life imprisonment and deprivation of political rights for life for stabbing her cohabiting boyfriend to death. The lower court held that the defendant’s motive, frivolous arguments, constituted a crime of intentional assault.  The lower court found that the consequence of the crime was serious and that the defendant should receive a severe punishment. On appeal, the Higher People’s Court of Sichuan Province reversed the lower court’s holding, finding that (1) the appellant turned herself in and obtained forgiveness from relatives of the deceased; (2) on the day of incident, the victim had attacked the appellant first, and should bear certain responsibility. Thus, the High People’s Court reversed the lower court’s ruling and reduced the sentence to 15 years in prison and deprivation of political rights for three years. Available here.

家庭暴力

四川省达州市中级人民法院原判认定被告人唐芳因持水果刀朝同居男友胸部捅刺数刀,致其死亡,犯故意伤害罪,判处无期徒刑,剥夺政治权利终身。原判认为,本案系婚恋纠纷引发,被告人唐芳有自首情节,并取得被害人亲属谅解,可依法从轻处罚。四川省高级人民法院认为,上诉人(原审被告人)唐芳因生活琐事纠纷,持刀致同居男 友卢某甲死亡,其行为已构成故意伤害罪,后果严重,应予严惩。鉴于本案系婚恋家庭矛盾纠纷引发,案发后唐芳有自首情节,并取得死者亲属的谅解,被害人卢某甲平时对唐芳实施家庭暴力,案发当天先殴打唐,有过错,可依法对被告人从轻处罚。法院撤销四川省达州市中级人民法院判决,即被告人唐芳犯故意伤害罪,判处无期徒刑,剥夺政治权利终身; 并判决上诉人唐芳犯故意伤害罪,判处有期徒刑十五年, 剥夺政治权利三年。



丛艳青故意杀人案,中华人民共和国最高人民法院 (People's Procuratorate of Baoding City Hebei Province v. Cong) China Supreme People's Court (2014)

Domestic and intimate partner violence, Femicide

The defendant was convicted of murder and sentenced to death for stabbing his wife (Cui) and mother-in-law (Zhao) to death, which was upheld by the Supreme People’s Court. Cui had previously filed for divorce. On October 4, 2012, the defendant got into an argument with Zhao and Cui. The defendant chased Zhao out of the house and stabbed her to death. The defendant then caught up with Cui, who had run to a neighbor’s house for help, and stabbed her to death. The Supreme People’s Court affirmed the lower courts’ finding that the defendant was guilty of unlawfully depriving others of their lives, which constituted intentional homicide. The Supreme People’s Court upheld the death penalty, holding that the defendant’s killing method was cruel and the consequences were particularly serious, and thus the death penalty was the appropriate sentence according to the law.

家庭暴力、杀害妇女

被告人因捅刺其妻子及岳母致二人死亡,被河北省保定市中级人民法院认定犯故意杀人罪,判处死刑。最高人民法院核准了河北省高级人民法院维持第一审对被告人丛艳青以故意杀人罪判处死刑,剥夺政治权利终身的刑事裁定。被告人妻子崔某甲曾起诉离婚。2012年10月4日,被告人与其妻子和岳母发生争执。被告人追逐其岳母至屋外并持刀将其捅刺至死。被告人妻子跑至邻居家求救,被告人追至邻居家家门前胡同内,持尖刀捅刺其妻子数下,致其死亡。最高法院认为,被告人,故意非法剥夺他人生命,其行为构成故意杀人罪。犯罪手段残忍,情节、后果特别严重,应依法惩处。



王传宝与瞿勤晨强奸案,安徽省天长市人民法院 (People’s Procuratorate of Tianchang City Anhui Province v. Wang Chuanbao, Qu Qinchen) People’s Court of Tianchang (2014)

Sexual violence and rape, Statutory rape or defilement

The defendants Wang Chuanbao and Qu Qinchen were charged of crime of rape for repeatedly raping the victim, and crime of coercive indecency for violently digging and touching the victim's genitals. The prosecutor alleges that according to Article 25 section 1, Article 236 section 1 and Article 237 section 1 of Criminal Law of PRC, Chuanbao and Qinchen raped and molested the victim “with violence or threats”, constituting the crime of rape and coercive indecency. Chuanbao argues that he did not have sex with the victim, and all the evidences are hearsay evidence, thus is not guilty. Qinchen argues that he did not commit the crime of coercive indecency because taking off the trousers of the victim is to have sex with the victim. After the victim refused to do so, Qinchen stopped raping her and has no mens rea to molest her. The court finds that the fact the Chuanbao and Qinchen raped the victim had also been proved by the testimony of Qinchen’s girlfriend, one of the witnesses, therefore is founded. The act of coercive indecency is regarded as absorbed by the act of rape and thus would not be convicted separately under this crime.

性暴力与强奸

被告王传宝与瞿勤晨因多次强奸被害人王某并暴力扣摸王某的生殖器被控强奸罪和强制猥亵罪。检方称,根据中华人民共和国刑法第二十五条第一款、第二百三十六条第一款和第二百三十七条第一款,王传波与瞿勤晨使用暴力和威胁手段强奸并猥亵了王某,构成了强奸罪和强制猥亵罪。王传宝称,自己并没有和王某发生性关系,所有证据均系传来,自己并没有犯罪。 瞿勤晨称,自己并没有犯强制猥亵罪,因为脱下王某的裤子是为了与王某发生关系。在王某拒绝后,曲停止了强奸行为,并且没有猥亵王某的犯罪意图。法院认为,王传宝与瞿勤晨强奸王某的事实已被曲的女友证实,因此事实确凿。强制猥亵的行为应包含在强奸行为内,因此不应另外定罪。



李某强奸案,浙江省瑞安市人民法院 (People’s Procuratorate of Ruian City Zhejiang Province v. Li) Intermediate People’s Court of Wenzhou (2014)

Sexual violence and rape

The defendant was charged of crime of rape for raping the victim, Z. The defendant got to know Z. through wechat, a social app, three weeks before he asked her out for dinner. After Z. was drunk, the defendant took her to a hotel and had sex with her. The trial court found the defendant guilty. The defendant appealed, arguing that he and Z. were in a relationship and there was no evidence that Z. was drunk that night. He also claimed there was doubt about the examination of the sample collected from Z. and therefore it should not be used as evidence. Furthermore, the defendant claimed to have nephrosis making him unable to have an erection, so therefore he could not possibly rape Z. The appellate court found that the rape was proved by not only the sample, but also witness testimony, video recording, and a victim statement. There was no evidence showing that the defendant and Z. were in a relationship. Finally, according to an expert’s opinion, nephrosis would not have effect on sexual erection. Therefore, the conviction was affirmed.

性暴力与强奸

李某因在张某醉酒时强奸张某而被控强奸罪。李某与张某在微信社交软件上认识,李某于三周后邀请张某一起吃晚饭。在张某喝醉后,李某将其带去一家酒店并与其发生了性关系。基层法院判决李某犯强奸罪。李某上诉称,自己和张某正在交往,并且没有任何证据证明张某当晚醉酒。 从张某生殖器取得的样本检测存疑,因此不能用作证据。另外,李某患有肾病并且不能勃起,因此不可能强奸张某。法院认为,强奸事实不仅由检测结果证实,也由证人证言、录像和被害人陈述证明,因此事实可信。没有证据证明李某和张某正在交往。并且,根据专家证词,肾病不影响勃起功能。因此,法院维持了李某强奸罪的原判。



胡石明、胡锦林、水贝组织他人偷越国(边)境案,江西省高级人民法院 (People’s Procuratorate of Nanchang City Jiangxi Province v. Hu Shiming, Hu Jinlin, Shui Bei) Supreme People’s Court of Jiangxi Province (2014)

Trafficking in persons

The defendants Hu Shiming, Hu Jinlin and Shui Bei were charged of crime of organizing sneak across the border for trading three Cambodian women to China. One of the defendants, Shui Bei was introduced and married to defendant Hu Jinlin after she entered China under tourist visa. Shui Bei’s families got to know her good living condition and wished to married someone in China. Therefore, Hu Shiming and Hu Jinlin paid for the visa fee of three sisters of Shui Bei, got them in through Guangzhou custom, and advertised them for marriage. Soon after that, Hu Shiming and Hu Jinlin introduced the three to local persons at the will of both sides and took approximately RMB 240,000 in return. Shui Bei was the interpreter during the transaction. The trial court finds that according to Article 318 Section 1 of the Criminal Law of PRC, the defendants organized several foreign women to do things inconsistent with the approved visa, making up the reason to apply for visa, for the purpose of profit-making, which constituted the crime of organizing sneaking across the border. Hu Shiming appealed and alleged that according to Article 6 Section 4 of Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Certain Issues Concerning the Application of Law in the Handling of the Criminal Cases of Obstructing Border (Frontier) Control, crossing the border with certificates taken by faking reasons for crossing the border, hiding identity, illegally using others’ ID cards etc, shall be regarded as the act of sneaking across the border. All three requirements need to be satisfied, instead of selectively satisfied. The Supreme Court finds that according to the rationale of law interpretation, the three requirements are selective. Therefore the decision is affirmed.

人口拐卖

被告胡石明、胡锦林、水贝因组织将三名柬埔寨妇女偷越国境而被控拐卖妇女罪。被告之一水贝在持旅游签证入境中国后经人介绍与被告胡锦林结婚。之后,水贝家人及亲友了解到水贝在中国的生活要比柬埔寨好。水贝的表姐等三个亲友,愿意到中国来嫁人。由水贝的父母在柬埔寨办理她们的护照、签证及购买入境机票等,胡石明、胡锦林支付费用并将几人带入广州海关。之后胡石明、胡锦林将几人经双方同意介绍给中国男子,并收取共约二十四万人民币。其中,水贝担任翻译。基层人民法院认为,根据中华人民共和国刑法第三百一十八条第一款,被告以介绍境外妇女嫁给中国男人而牟利为目的,多次组织人数众多的外籍妇女以虚假的出入境事由骗取出入境证件,偷越中华人民共和国国(边)境,其行为均已构成组织他人偷越国(边)境罪。胡石明上诉称,根据根据最高人民法院、最高人民检察院《关于办理妨害国(边)境管理刑事案件应用法律若干问题的解释》第六条第(四)项规定,“使用以虚假的出入境事由、隐瞒真实身份、冒用他人身份证件等方式骗取的出入境证件出入国(边)境的”应当认定为刑法第六章第三节规定的偷越国(边)境行为,一审将必须同时具备的三个行为理解为选择性的三个行为,错误理解司法解释。高级人民法院认为,这三个行为应为选择性的。因此维持原判。



蓝树山拐卖妇女、儿童案、最高人民法院 (People’s Procuratorate of Hechi City Guangxi Province v. Lan Shushan) Supreme People’s Court of PRC (2014)

Trafficking in persons

The defendant Lan Shushan was charged of the crime of trafficking women and children for trafficking one woman and 34 children. Throughout 1988 to 2008, the defendant Lan Shushan independently and with his colleagues Tan Ruxi etc trafficked one woman and 34 children to Fujian Province, and traded them for money with the help of accomplice Lin Chuanxi, Su Ermei etc. Lan Shushan benefited approximately RMB 500,000 from the transactions. According to Article 240 section 1 & 2, the ring leader of a large scale trafficking shall be sentenced to death penalty. Thereby, Lan was convicted and sentenced to death by the Appellate Court of Hechi City. Lan appealed to the Supreme Court of Guangxi Province and the judgment is affirmed. The Supreme People’s Court of PRC reaffirmed decision and approved Lan’s death.

人口拐卖

被告蓝树山因拐卖一名妇女和三十四名儿童被控拐卖妇女、儿童罪。1988年至2008年,被告蓝树山单独并伙同同案犯谭汝喜等人拐卖了一名妇女和三十四名儿童至福建省,并在同案犯林传溪、苏二妹的帮助下将这些妇女儿童出卖。蓝树山因此共非法获利约五十万元人民币。根据刑法第三百五十条,在共同犯罪中,蓝树山系地位作用最突出、罪责最严重大型拐卖人口活动的主犯,应依法判处死刑。河池市中级人民法院认定蓝树山犯拐卖妇女、儿童罪,并判处死刑。蓝树山上诉至广西省高级人民法院,法院维持原判。中国最高人民法院维持原判并核准死刑。



Liu v. Zhu Court of Huilai County, Guangdong Province (2013)

Divorce and dissolution of marriage, Sexual violence and rape, Sexual harassment

The plaintiff Liu alleged that she had a illegitimate son with a Yang when she was working in Sichuan province. Soon after that, she was having another child with a Chen. Since Chen was not going to perform his duty as a father, Liu decided to give birth to the child and raise it herself. Several months later, Liu’s first son, Yang was introduced by a matchmaker to the respondent as an adopted son. Out of the strait situation Liu faces, she agreed. Several days later, the respondent Zhu proposed since the son is too naughty and needs his mother to look after him, it is better that Liu came along. Liu came and Zhu’s little brother asked Liu to marry Zhu, and they will pay her 100,000 as gift, but Liu need to take care of Zhu. Liu agreed. After the wedding, Liu found out the respondent was disabled and sit on a wheelchair, having no sexual capability. However, the respondent kept sexually harassing the plaintiff. Plaintiff argued that she was cheated to get married, and Zhu lacks sexual ability, therefore she sued for divorce. The court finds that although the marriage is facilitated by a matchmaker, the two have lived together for many years and have developed some feelings for each other. Plaintiff’s arguments are not supported by any evidence, thus are not considered by the court.


People’s procuratorate of Nanjing City Jiangsu Province v. Ji Xingpeng Supreme Court of Jiangsu Province (2014)

Domestic and intimate partner violence

The defendant Ji Xingpeng, husband of his 22 year-old wife, was charged of crime of intentional homicide for murdering his wife. The couple were married in 2012. Every since then, defendant was doubtful about his wife’s loyalty to him and thought she has affairs with other persons, therefore he always beat his wife after drunk. On a night in 2013, Ji was drunk again and quarreled with the victim. Holding a knife, Ji hacked and poked the wife more than ten times, causing his wife die immediately. Intermediate People’s Court of Nanjing City found that the act of the defendant constituted intentional homicide, and therefore decided a death penalty with two-year’s probation. The victim’s parents appealed that as for the civil suit collateral to criminal proceedings, more compensation shall be made. The Supreme Court of Jiangsu Province finds that the appellants did not provide any evidence for their claims, therefore the decision of the lower court is affirmed.


Wang v. Luo Court of Chaling County, Hunan Province (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The plaintiff alleged that she married the respondent in 2012 and had a son in the same year. However, the respondent is a male chauvinist and has a very bad temper. He often maltreated the plaintiff. Especially during the plaintiff’s pregnancy, the respondent urged the plaintiff to have an abortion. The abortion was not carried out only because they had no money at that time. Therefore, the plaintiff sought a divorce and to submit an Agreement of divorce to the court. The court found that since the respondent did not show up at the trial, the plaintiff could not prove the authenticity of the evidence. According to Article 32 of Marriage Law, the prerequisite of a divorce judgment shall be the certainty of the loss of affection between the couple. Since the plaintiff could not prove such certainty, the divorce was not allowed.


郭晶与杭州市西湖区东方烹饪职业技能培训学校一般人格权纠纷,杭州市西湖区人民法院 (Guo Jing v. East Cooking Vocational Skills Training School) West Lake District Court of Hangzhou (2014)

Employment discrimination, Gender discrimination

The plaintiff alleged that in June 2014, she saw the recruiting advertisement of the respondent on the Internet, knowing that the respondent want to recruit two copywriters. Guo submitted her resume accordingly. However, Guo has not got reply since then. With the certainty that she is capable of the position, Guo called the School, asking about the job. Guo was told that since the position requires many business trips, only male can be considered. Guo emphasized that she can adjust to those business trips but was still refused by the same reason. Guo therefore brought this lawsuit on the basis that the respondent’s action is in violation of Article 3 of Employment Promotion Law of the People's Republic of China, which requires that “Workers shall be entitled by law to enjoy the right to equal employment and to seek their own employment. No worker seeking employment shall suffer discrimination on the grounds of ethnicity, race, gender or religious belief.” The respondent argues that because of the specialty of the position, the copywriter should live in the same room with the president of the school, all of whom are male, while during the business trips. It is out of the consideration and care to the plaintiff that they did not recruit her. The court finds that since the respondent did not provide any evidence to prove the specialty of the position and the legal reasons for the unsuitability of female worker, it violates the accorded rule: Article 3, 12, 13 of Labor Law, which states “Labourers shall have equal right to employment and choice of occupation”, “Labourers, regardless of their ethnic group, race, sex, or religious belief, shall not be discriminated against in employment”, “Women shall enjoy the equal right, with men, to employment”.

性别歧视,就业歧视

原告称,2014年6月,自己在网上看到被告要招两名文案的招聘信息。原告在网上投递了简历。原告一直没有等来被告的回复。原告认为自己的各项条件均符合其工作所需,于是打电话询问应聘情况。被告工作人员答复说,他们的文案职位仅招男性,因为需要出差。原告告知自己完全可以胜任出差,于是不甘心又到被告招聘现场去应聘,依然被以同样理由拒绝。原告称,依据中华人民共和国就业促进法第三条,劳动者享有平等就业的权利,国家保障妇女享有与男子平等的劳动权利,而被告违反了这项法律。被告称该次招聘的岗位具有特殊性,出差住宿时必须与校长住一间标准间,而被告校长均为男性。基于公序良俗,被告没有录取原告。法院认为,被告未举证证明该岗位属于法律、法规所规定的女职工禁忌从事的工作,被告违反了《中华人民共和国劳动法》第三条、第十二条、第十三条劳动者享有平等就业权利的规定。



Zhao Fei, Yang Fang v. Cao Yin, Cao Chaoran, Luo Shihui etc. Hechuan District Court, Chongqing (2014)

Sexual violence and rape, Femicide

In 2012, the deceased respondent, Cao Yin cheated the deceased victim, Zhao Jing, to a Tap Water Company for interview, and arranged Zhao to start to “work”. On the next day, Cao tied Zhao up and brought her to the duty office of the company, forcing her to have sex with him. After that, afraid of being caught, Cao killed Zhao. Cao was caught finally by the police. In 2013, Cao was sentenced to death by First Intermediate Court of Chongqing. The judgment has been affirmed by the Supreme Court of Chongqing and Supreme Court of PRC. Cao has been executed. The plaintiff alleged that after Cao Yin’s death, his successors first in order shall be responsible for the damages caused. The plaintiff also sues against the Tap Water Company for their lack of due diligence. The court finds that, among the four respondents, all of whom are the successors first in order of Cao Yin, Cao Chaoran and Luo Shihui clearly quit their right of inheritance. Therefore, only the other two are responsible.


Economic Cooperatives of Yongxinnansha Shares v. Subdisctrict Office of Chancheng District of Foshan City Intermediate Court of Foshan City, Guangdong Province (2014)

Gender discrimination, Harmful traditional practices

In 2012, the plaintiff claims their shareholder status in Nansha economic cooperative, and alleged the local subdisctrict office to affirm their qualification. The subdisctrict office affirmed and granted certificate. Nansha economic cooperative thereby sued the Subdistrict office for its administrative decision. Nansha alleged that according to article 15 of the Article of Stockholding of the Precinct of Yongxin: women married before December 31, 1992 shall be regarded as “out-married” women and shall not be given the right to share dividends, nor their shareholder qualification. The trial court finds that according to Article 61, section 3 of Law of the People's Republic of China on the Organizations of Local People's Congresses and Local People's Governments, Article 27, 36 of Law of the People's Republic of China on the Organization of the Villagers Committees; and Article 4 of rural collective economic organization regulation of Guangdong Province, the distribution of rural collective property shall not violate other laws and regulations of China, and shall not infringe other people’s legal rights. Article 15 of the Stockholding Article is in violation of the equal right of women and therefore invalid. The intermediate court affirmed the judgment.