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HuaTzon1YiTze

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HuaTzon1YiTze

    亞洲家庭暴力性侵害期刊 93 第二卷第一期;2006;93-110

    DOMESTIC VIOLENCE PREVENTION ACT

    June 24, 1998

    Published pursuant to Presidential Order Hua/Tzon(1)Yi/Tze No. 8600077370

    Domestic Violence & Sexual Assault Prevention Committee

    Ministry of Interior, Republic of China

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    DOMESTIC VIOLENCE PREVENTION ACT

    June 24, 1998

    Published pursuant to Presidential Order Hua/Tzon(1)Yi/Tze No. 8600077370

CHAPTER I: GENERAL ARTICLES

Article 1

    This Domestic Violence Prevention Act (the Act) has been incorporated to promote domestic harmony and control; to prevent domestic violence; and to protect the interest of the victim of domestic violence.

Article 2

    Domestic violence, whenever appearing in the Act, refers to any act of exercising any infringement, mentally or physically, among family members.

Domestic violence offense, whenever appearing in the Act, refers to any purposeful

    exercise of domestic violence among family members that constitutes an offense defined in any law other than the Act.

    Harassment, whenever appearing in the Act, refers to any interference, warning, mocking, abuse in words and/or action, or any act of fabrication of situations that causes fears and terrors among family members.

Article 3

    Family members, referred to in the Act, shall include the following person and their minors:

1. Who is commented a spouse or ex-wife or ex-husband;

    2. Who has or have had on-going marital, or de-facto marital, parental, or dependent

    relationship;

    3. Who has or have been related as a lineal-blood or a lineal-blood-by-marriage; and 4. Who has or have been related as a lateral blood or a lateral-blood-by-marriage falling

    within the Relation Rank 4.

Article 4

    Regulating authorities, whenever it appears in the Act, refers to the Domestic Violence Control & Prevention Committee, Ministry of the Interior (MOI) in the central administration level; provincial (municipal) government, province (municipality); and country, city or

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county governments.

Article 5

    There shall be a Domestic Violence Prevention Committee (the Committee) to be created by the MIO charged with the following functional authorities:

    1. To develop policies and regulations for the purposes of domestic violence control and

    prevention;

    2. To coordinate, monitor and evaluate the performance of domestic violence control and

    prevention bylaws by agencies concerned;

    3. To promote service efficiency and competence to be provided by agencies involved in

    the control and prevention of domestic violence;

    4. To educate the general public on control and prevention of domestic violence; 5. To coordinate provisioning protection and treatment programs for the victim of

    domestic violence;

    6. To support both public and private institutions in creating domestic violence

    management procedures and promoting domestic violence control and prevention

    education programs;

    7. To sponsor the creation of an integrated data base of domestic violence offenders for

    mutual reference among judges, prosecutors, policemen, medical personnel and other

    governmental agencies and to keep strict confidentiality of the identity of the victim;

    and

    8. To support local governments to promote domestic violence control and prevention

    operation by providing financial and technical assistance.

    Provisions governing the creation, control and application of the database as referred to in the preceding subparagraph 7 shall be separately set forth by the central administration.

Article 6

    The Minister of the Interior shall be the chairman of the Committee and not less than half of the members shall be comprised of experts, scholars and those who represent civil groups.

    Charters and practices of the Committee shall be specified by the central administration; and full time staff shall be assigned to each division in the Committee to handle the routine operation of the Committee.

Article 7

    Any local government may create a Domestic Violence Prevention Committee with its functional authorities specified as follows:

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    1. To develop policies and regulations for the purposes of domestic violence control and

    prevention;

    2. To coordinate, monitor and evaluate the performance of domestic violence control and

    prevention bylaws by agencies concerned;

    3. To promote service efficiency and competence to be provided by agencies involved in

    the control and prevention of domestic violence;

    4. To educate the general public on control and prevention of domestic violence; 5. To coordinate provisioning protection and treatment programs for the victims of

    domestic violence;

    6. To support both public and private institutions in creating domestic violence

    management procedures and promoting domestic violence control and prevention

    education programs;

    7. To sponsor the creation of an integrated data base of domestic violence offenders for

    mutual reference among judges, prosecutors, policemen, medical personnel and other

    governmental agencies and to keep strict confidentiality of the identity of the victim;

    and

    8. To support local government to promote domestic violence control and prevention

    operation by providing financial and technical assistance.

    The local government shall set forth charters and practices for the local Domestic Violence Prevention Committee.

Article 8

    Each level of local government shall create and maintain a Domestic Violence Prevention center by incorporating efforts from police administration, education, health, social administration, household administration and judicial units concerned to engage in the following operations to protect the interest of domestic violence victims and prevent domestic violence from happening:

1. A 24-hour hot line;

    2. Psychological support, employment, and housing guidance; emergency relocation and

    legal supports.

    3. Emergency rescue, seeking medical care, and acquisition of a certificate of diagnosis

    for the victim of domestic violence;

    4. Referral to follow-up guidance for the victim of domestic violence; 5. Referral to physical and mental treatment for both of the victim and the offender; 6. Promotion of training, education and propaganda; and

    7. Any other action related to prevent domestic violence.

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    The Domestic Violence Prevention center may operate on its own or be incorporated into the Sexual Assault Prevention Center, and shall provide social workers, policemen, medical personnel and other related professionals with its charters and practices to be set forth by local regulating authorities.

CHAPTER II: CIVIL PROTECTIVE ORDER

Article 9

    The protective order is available in two forms, respectively, ordinary and provisional protective orders.

    An application for a protective order may be filed with the court by a victim, prosecutor, police department, or regulating authorities from municipal, or country (city) government.

    In the event that the victim is a minor, disabled, mentally and/or physically, or is prevented from appointing an attorney for any cause whatsoever, his/her legal representative, any blood relative or relative-by-marriage falling within Relation Rank 3 may file the petition for a protective order from the court for, and on behalf of, the victim.

Article 10

    The petition for a protective order shall be subject to the jurisdiction of the district court where the residence of the victim, the respondent or the place of the domestic violence is located.

    Article 11

    Any petition for a protective order shall be made in writing: Provided, however, that if the victim is exposed to immediate domestic violence, the prosecutor, police, or regulating authorities at the level of municipality, county (city) may file the petition by speech, facsimile, or any other electronic means at any time during the day, night or holiday.

    Said petition shall not enter the residential address of the petitioner or the victim, and there shall be only the place of service to be entered.

    The court for the purpose of determination of jurisdiction, may investigate into the residential address of the victim. When the petitioner or the victim requests the court to keep confidential the residential address of the victim, the interrogation shall be conducted in secrecy by the court. Resultant transcripts and related information shall be sealed to prevent their circulation.

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Article 12

    There shall be no open investigation and trial of any matter of petition for a protective order.

    Any court may, by exercising its functional authorities, conduct investigation of the evidences and may give separate interrogation if required.

    Upon making a final decision, the court may hear comments delivered by the regulating authorities from municipal, or county (city) government or social welfare institute.

    There shall be no intermediation or settlement permitted in the matter of protective orders.

    The court shall cause any delay in the issuance of a protective order by any excuse of any other case pending investigation or legal action between the parties concerned.

Article 13

    The court, upon receiving the petition for a protective order shall immediately enter into the trial procedure unless such petition is forthwith rejected on the ground of noncompliance with applicable law.

    Upon concluding the trial and domestic violence is established, the Court shall, based on the facts and as required, issue one or more than one of the following ordinary protective orders either as petitioned or by its functional authorities:

    1. To restrict the respondent from exercising domestic violence against the victim or any

    particular member in the family;

    2. To restrict the respondent from causing any direct or indirect harassment,

    communication, correspondence or any other unnecessary contact;

    3. To order the respondent to vacate the victim’s residence; and, if required, to restrict

    the respondent from disposing of said property, i.e. the victim’s residence or any other

    temporary disposition.

    4. To order the respondent to clear away for a specified distance from the following

    places: the victim’s residence, school, work place or any other places regularly

    accessible by the victim or any of specific family member of the victim; 5. To specify the right to use automobile, motorcycle, and any other daily life,

    occupational or educational necessities; and, if required, to deliver any and all of said

    necessities;

    6. To specify either party separately or both parties of the concerned jointly what and

    how to temporarily exercise or bear the rights and duties of his/her or their minor(s)

    and such provisional exercise or rights may be delivered to said minor(s) if required. 7. To specify the exercise of visitation by the Respondent and may restrict such

    visitation;

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    8. To order the Respondent to pay the rental or supports for the victim to the victim and

    his/her minor;

    9. To order the Respondent to pay the costs incurred from the victim or any particular

    family member of the victim receiving medical care, consultation, sanctuary or any

    property damages;

    10. To order the Respondent to complete the relocation program for the victim including

    but not limited to drug/alcohol addiction rehabilitation, mental therapy, psychological

    consultation or any other treatment and/or consultation;

    11. To order the Respondent to bear corresponding attorney fees; and

    12. To prescribe any other order(s) that is/are required for the protection of the victim and

    of any particular family member of the victim.

Article 14

    Unless otherwise specified, the effective term of the protection order shall be for one year or shorter depending upon the type of order.

    Unless otherwise specified, the party concerned and the victim may file with the court for an extension, change or reversal of the protection order. There shall be one year or shorter for the extended protection order and there shall be only one extension to be considered unless otherwise specified.

    Any protection order shall become null a void before the expiry of said protection order when the court reaches its decision.

Article 15

    To protect the victim, the court may approve issuing a provisional protection order according to the petition without trial or before the end of the trial.

    In approving the issuance of a protection order, the court may prescribe any order as defined in Subparagraphs 1~6 and 12, Paragraph 2, Article 13 according to the petition of by the functional authorities of the court.

    In receiving a petition for protection order as set forth in Paragraph 1, Article 11, unless provided with justified cause, the court shall approve in writing a provisional protection order and may transmit such order either by fax or any other electronic means to the police within four (4) hours when the court has sufficient reasons to believe, based on the facts of domestic violence delivered in court or on the phone by the police, that the victim of domestic violence is exposed to immediate danger.

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    Any petition for a provisional protection order filed and approved for issuance by the court before the same petitioner files an ordinary protection order shall constitute a petition for an ordinary protection order.

    The provisional protection order shall become effective upon its issuance and expire on the approval of an issuance of an ordinary protection order at the end of the trial or the petition for such an ordinary protection order is rejected.

    By its functional authorities or as petitioned by the victim, the court before the termination of a provisional protection order may change or reverse the provisional protection order.

Article 16

    A protection order requiring the Respondent to vacate from the victim’s residence or restricting the Respondent to approach the victim remains intact even if the victim has given consent to the Respondent to live or stay with the victim.

Article 17

    Other than that set forth in Paragraph 3 of Article 15, any protection order shall be served to the party concerned, the victim, the police authorities, and regulating authorities in municipal, county/city government within twenty-four (24) hours upon its approval by the court.

Regulating authorities in municipal, county/city government shall document any protection

    order issued by the court and shall make such documentation available to the court, police authorities and any other government agency for review at any time.

Article 18

    The court shall provide/arrange for a safe environment and take measures to protect the victim’s presence in the court.

Article 19

    Unless otherwise specified, any decision made in the protection order may be challenged.

    Unless otherwise provided in this Chapter, provisions set forth in Non-litigation Law may be applicable to the procedure of protection order. Law of Civil Procedure may be applicable to any things and matters not specifically provided in Non-litigation Law.

Article 20

    All protection orders shall be executed by the police authorities: Provided, however, that

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    any protection order involving payment of moneys may be petitioned for an injunctive order with the court for the purpose of performance.

    The police authorities shall escort the victim to his/her or the Respondent’s residence to ensure the safe occupation by the victim of any residence, motorcycle, automobile or any other personal living, occupation or educational necessity according to the protection order.

    Any objection to the contents of the protection order by the parties concerned or other interested party may be lodged with the court issuing the protection order before it becomes inoperative.

Injunction Procedural Law may be applied for filing the objection.

Article 21

    Any protection order issued on a domestic violence matter by a foreign court may be enforceable when a request for recognition is approved by a court of the Republic of China.

    Any petition for the recognition of a protection order issued on a domestic violence matter by a foreign court shall be rejected if any of those events listed in Articles 402.1, 402.2 and 403.3 of Civil Law constitutes.

    Should a petition for recognition by the court of the Republic of China of a protection order issued by a foreign court on domestic violence be originated from a country where does not recognize any protection order issued by the court of the Republic of China, such petition may be rejected.

CHAPTER III: CRIMINAL PROCEDURE

Article 22

    The police shall forthwith make an arrest of any crime at the scene of domestic violence or offense against protection order and proceed the matter pursuant to Article 92 of Law of Criminal Procedural.

    Even if the suspect of domestic violence is not caught on the scene of crime, but the police have sufficient reasons to think that the offender is a suspect of a domestic violence crime

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    and/or imposing continuous danger to the life, body or freedom of his/her family member(s) as defined for custody requirements in Law of Criminal Procedure, the police shall forthwith take the suspect into custody and report the case to the prosecutor for issuance a warrant of arrest. The suspect shall be immediately released if the prosecutor refuses to sign a warrant of arrest.

Article 23

    If any defendant of domestic violence offense or violation against protection order is forthwith ordered released on bail, an obligated care entrust, a restriction of residence, or a release after the interrogation by the prosecutor or the court shows that there is no necessity for taking the defendant into custody, one of more than one of the following conditions may be prescribed to demand the compliance from the defendant: 1. Not to commit any act of domestic violence;

    2. To vacate the victim’s residence;

    3. Not to directly or indirectly harass, contact, talk to or have any other communications

    with the victim; and/or

    4. Any other things and matters which may be required in order to protect the victim.

    The prosecutor or the court may reverse or change any conditions attached to the first paragraph of this Article either by functional authorities or according to the petition filed by the party concerned.

Article 24

    The prosecutor or the court may have reserved its decision and made decisions otherwise in the event that the defendant has violated any conditions for release set forth in Article 23; and may confiscate any bond deposited by the defendant.

    In the event described in the preceding paragraph, the prosecutor may request the court to take custody of the defendant in the course of investigation, and the court may order the same custody in the course of trial.

Article 25

    Articles 23 and the first half of Article 24 may become applicable for any defendant who is released from custody according to a court order.

    Any defendant released from custody may be taken into custody once again if he/she has violated any conditions for release set forth in the preceding paragraph of this Article.

Article 26

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