China

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。

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。

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。

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。

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。

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。

The defendant Wang “bought” a woman with intellectual disabilities for RMB 10,000 to have a male heir. Wang chained her feet and hands and raped her several times. The imprisonment and rape lasted for two months until police rescued her. Quning District Court, Jiangsu Province found that defendant Wang trafficked the woman, imprisoned, and raped her. Therefore, according to Article 236 section 1 and Article 238 section 1 and Article 240 of Criminal Law of the People’s Republic of China, Wang was sentenced to 10 years’ imprisonment.

In 2013, a teenage girl name Lin gathered two other girls to get revenge on another girl, C., at Guangze senior high school, Fujian Province, for insulting her. C. hid and so their plan for revenge was unsuccessful. Later that day, Lin asked someone else to take C. to a quiet neighborhood. Lin and her friend slapped C.'s face, broke her nose, pulled her hair, and made C. take off all her clothes. C. was too frightened to say no and took off all her clothes. Lin and her friend took pictures of the naked C. and shared the photos. Guangzhe District Court found that Lin and her friends assaulted the victim C. According to Article 237, Criminal Law of the People’s Republic of China, Lin and her friend were convicted of humiliating a woman with force and coercion. Lin was sentenced to two-years’ imprisonment, with a full suspension of the sentence. Lin’s friend, Lou, was sentenced to one-year jail time with a full suspension of the sentence. The court said that because both the defendants and the victim were under age of 18, and because the defendants were willing to cooperate with the police, tell the truth, and plead guilty, the court under Article 63, Article 67, Article 72, and Article 73 of Criminal Law of People’s Republic of China to give the two defendants a mitigated punishment of community service. The court demanded that the defendants delete all the naked photos of the victim. After the crime, the defendants’ families compensated the victim and the victim forgave the defendants.

性别歧视、性暴力、性骚扰

2013年，被告人林某某认为其被陈某某辱骂，纠集楼某某、 黄某某（均为未成年女性），到福建省光泽县某中学找该校学生陈某某（女， 未成年）欲行报复。因陈某某警觉躲藏，林某某等人寻找未果。当日晚， 林某某通过他人将陈某某约出并带到光泽县某超市后面的巷子里。

林某某与楼某某先后对被害人实施打耳光、拉扯头发等殴打行为，致使被害人鼻子流血， 并叫被害人“把衣服脱光”。陈某某因害怕哭泣而不敢反抗，遂将衣裤脱光。林某某与楼某某及在场的另二名女学生对被害人围观取笑。其间楼某 某使用手机对陈某某的裸体拍摄了十余张照片并将照片传送给他人。法院经审理认为，被告人楼某某、林某某伙同他人聚众以暴力方法强制侮辱妇女，根据中华人民共和国刑法第二百三十七条，其行为已构成强制侮辱妇女罪。法院院综合考虑被告人作案时均不满十八周岁，主动归案并如实供述犯罪事实，根据刑法第六十三、六十七、七十二和七十三条，决定依法对被告人减轻处罚并适用缓刑。以强制污辱妇女罪判处林某某有期徒刑二年，缓刑二年；判处楼某某有期徒刑一年，缓刑一年。 法院要求被告人删除被害人裸照。被告人家庭案发后积极赔偿并取得对方谅解。

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。

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。