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Strafrechtlicher Schutz bei häuslicher Gewalt : eine vergleichende Untersuchung zum deutschen und chinesischen Recht


Kui,  Jia
Criminology, Max Planck Institute for Foreign and International Criminal Law, Max Planck Society;

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Kui, J. (2020). Strafrechtlicher Schutz bei häuslicher Gewalt: eine vergleichende Untersuchung zum deutschen und chinesischen Recht. Berlin: Duncker & Humblot.

Cite as: https://hdl.handle.net/21.11116/0000-0006-B850-0
Domestic violence is a global issue that poses a serious threat to human rights and societal stability. Nevertheless, protection against domestic violence in Germany and China is currently underdeveloped. This study aims at comparing the problems of domestic violence in Germany and China with a focus on criminal protection based on both legal systems, possibly providing new approaches to the exploration of more effective ways to combat domestic violence and to protect its victims.
In terms of the comparison of law functions, this study not only focuses on the legal and judicial provisions of the legal systems in Germany and China but also extends to their factual problems, legal principles and socio-ethical foundations. As a matter of fact, this study combines an empirical and a normative investigation, which necessitates the collection and analysis of statistics necessary to explain the value of crim¬inal law.
Specifically, this study is presented in five correlative parts. The first part primarily analyses the two criminal justice systems, while the second part deals with the basics of criminal law history and the developmental process of criminal law regarding protection against domestic violence. The third part, namely the principal section of this dissertation, comprehensively examines the typical criminal offences, the peculiarities of the reasons for justifying domestic violence, the differences in the guilt of the offender, and the corresponding legal consequences within the framework of German and Chinese criminal law. The fourth part discusses formal protection under criminal law, particularly comparing the different regulations in the criminal procedure of domestic violence. The dissertation concludes with a summary and legal policy considerations.
According to the aforementioned analyses, it should be noted that there are many differences between Germany and China in their material and formal criminal law protection against domestic violence, because this is based on different legal histories and cultures as well as the different legal systems of both countries.
Legally speaking, Germany started earlier than China with paying attention to domestic violence. German women and children are better protected due to many criminal debates about the rights of parents to punish their children, marital rape and other controversial issues. However, it is still urgently required to further improve criminal protection against domestic violence. For example, to some extent, the reform of criminal law relating to sexual offences in Germany plays a symbolic role and is only an expression of the country’s criminal policy.
In recent years, China has also tried to pay more attention to domestic violence by seeking more effective measures for violence prevention and victim protection. How¬ever, due to the unique social culture and history of China, protection from domestic violence still faces many difficulties. In order to improve criminal protection against domestic violence, the individual freedom of sexual self-determination must be respected and protected by expanding the scope and definition of the term ‘rape’. In addition, the protection of children’s sexual development in China requires more attention as well.
The purpose of legal comparisons between Germany and China is not to find a better or worse legal solution but to allow for the existence of differences and to work together towards an optimal solution through mutual efforts. As such, it should be noted that there are different legal cultures and systems in Germany and China, which means that not all successful experiences are directly transferable in both countries. We must consider all special circumstances and choose the most appropriate measures.