Over the years, China has become notorious for its lack of good Samaritan spirit, but a new law introduced at the start of this month hopes to finally change all that, though some believe it is actually trying too hard.
Passed in March by the National People’s Congress, China’s new Good Samaritan law provides protection to those who voluntarily offer emergency assistance to victims who are, or who they believe to be, injured, ill, in danger, or otherwise incapacitated, ensuring that they will not be held civilly liable in the event that they harm the person they are trying to save, according to China’s official Xinhua news agency.
Due to unscrupulous scammers, public trust in China is at rock-bottom, making bystanders reluctant to help those in need for fear of getting blackmailed or sued. In an infamous incident earlier this year, played out on surveillance tape, a woman was hit by a car while crossing a busy intersection in Henan, leaving her lying motionless on the road alongside a crosswalk. Afterward, dozens of pedestrians and drivers passed by without taking action to help the woman before she was run over a second time, ending her life.
The tragic incident was reminiscent of one that sparked outrage across the country back in 2011 when a two-year-old girl was run over and left clinging to life in a Foshan back alley. Ignored by at least 18 passersby, a female trash collector finally saw her and called for help. The girl, Little Yue Yue, was sent to the hospital where she died eight days later.
In the years following Little Yue Yue’s death, a few Chinese cities have passed their own Good Samaritan laws, hoping to prevent similar incidents from taking place. Last November, Shanghai’s own law protecting first-responders went into effect. However, critics felt it did not do enough to solve the problem, only providing legal protection to citizens if they call emergency services first and follow instructions. Many worried that passersby simply wouldn’t bother to take the risk.
However, this new nationwide Good Samaritan law has drawn criticism for going too far the other way, providing legal protection to anyone who tries to help, even if they have no idea what they are doing. Back in March, Donald C. Clarke, a law professor specializing in Chinese law at The George Washington University Law School, wrote that this extremely broad protection was very much the NPC’s intention:
Article 184 provides, somewhat startlingly, that those who attempt to aid others in emergency situations shall never be liable under any circumstances. If I see you coughing, assume you are choking, and attempt a tracheotomy with a butter knife despite a complete lack of medical training, your next of kin cannot sue me. The legislative history makes it clear that this is in fact the desired result. The original version of this article presented to the NPC provided that the Good Samaritan could be liable for gross negligence, but some delegates objected that this would be too discouraging. (Bear in mind that this provision comes in the wake of a number of incidents widely reported in China over the last several years of egregious bystander indifference to suffering or of those who were aided suing those who aided them.) As a result, the provision was amended to state that where the aided party could prove that they had suffered serious damages as a result of the aider’s gross negligence, the aider should bear “appropriate” liability. (Note that the burden of proof would have been on the aided party even without this amendment.)
But even this not enough for some delegates, and so the language specifying liability for aiders was removed altogether. In other words, it is very clear that the NPC does not want aiders to be liable even for palpably gross negligence.
In a blog post this week, Clarke further criticized the law for failing to address the real concerns that Chinese people have when faced with helping those in need.
It’s a weird kind of Good Samaritan law, though, because it doesn’t solve the problem people in China were worried about and instead solves a problem nobody seems to have. The problem people in China have been worried about (at least if popular culture is any guide) is that of people who help an injured person and are falsely accused by the victim of causing the injury. This, we are told, is why we see so many scandalous stories of injured people lying on the road for hours while everyone just walks around them and nobody stops to help. How would this problem be solved? By having police and judges be less credulous and demanding more by way of evidence. The problem seems to lie in a general tendency of Chinese tort law to look to anyone connected to a loss to share that loss, regardless of that person’s level of fault. (There are lots of examples of this, but that’s another blog post.) To a decision-maker, the very fact that someone is involved often seems a good enough reason to impose at least some liability.
Article 184 does nothing to solve this problem. Instead, it solves a problem that I have never seen complaints about: well-intentioned people being made liable for injuries they cause in the course of attempting to help an injured person. This is a totally different matter from the first situation described above. Here, there’s no factual issue: the helper did cause the injuries, and caused them after stopping to help. The policy question is, should the law grant them some kind of exemption from liability in order to encourage people to help, even though they might make a mistake and make things worse?
Meanwhile, there are others that say that no Good Samaritan law, no matter how broad, will do much to help. Worrying that the culture of distrusting strangers runs too deep in China and the population of pengci practitioners is just too numerous.
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