MCLC: good Samaritan laws

[Denton, Kirk]

MCLC LIST
From: jacqueline winter <dujuan99 at gmail.com>
Subject: good Samaritan laws
***********************************************************

Source: South China Morning Post (8/27/12):
http://www.scmp.com/portal/site/SCMP/menuitem.2af62ecb329d3d7733492d9253a0a
0a0/?vgnextoid=3fb0e2fb29369310VgnVCM100000360a0a0aRCRD&ss=China&s=News

Selfish society turns its back on its heroes
Critics say good-Samaritan laws are needed in a nation where bystanders
leave accident victims to die, and those who do step up face lawsuits
By Alice Yan 

A young man jumps into a river to save a family of three who are drowning.
He helps them reach the river bank but becomes trapped in the water and
cannot climb out. As his strength fails, bystanders urge the family to
help the person who just rescued them. But they walk away, with the woman
in the group saying it is none of their business as the man drowns.

That series of events transpired in Loudi, a city of 3.8 million in
southern Hunan, last month as reported by legaldaily.com
<http://legaldaily.com/> - another example, some observers argued, of
society's descent into selfish indifference.

The mainland has no law governing good Samaritans. Whether it needs one
has been debated with renewed intensity after Xiao Yueyue, age two, was
hit by two vehicles and ignored by a dozen people as she lay bleeding in
Foshan, Guangdong, last year. She died in hospital.

Since then, national lawmakers have had the opportunity to draft a law
that specifically addresses good-Samaritan acts. They declined to do so,
and in its place, the State Council issued a circular last month that laid
out stronger protection of the rights of citizen rescuers.

Academics expect the circular will help standardise the patchwork of
regulations that exist at the local or provincial level. More than 60
provinces and cities have issued their own rules or guidelines in recent
years on rewards for people who are injured while trying to help others,
according to The Beijing News.

But local regulations were often poorly implemented, said Jiang Mingan, a
law professor at Peking University. Good Samaritans sometimes ended up
disabled and without a job after being hurt while helping someone, Jiang
said. "Our heroes are hurt not only physically, but also mentally," he
said.

According to a survey cited by the Workers' Daily last year, 70 per cent
of 3,000 people who had been recognised by authorities in Guizhou for
meritorious acts continued to struggle financially.

The State Council's circular lists subsidies that a recognised good
Samaritan should receive. They cover daily living expenses, any hospital
treatment needed, job security, assistance with property purchases and
preferential policies for their children's education. The circular also
addresses the matter of compensation if the person who extended help is
killed or injured.

According to the circular, the rescuer should not be responsible for
paying related medical bills. Instead, the person at fault for creating
the dangerous situation should pay. If no one is to blame, in acts of
nature for example, then the medical-insurance company should bear the
cost.

Zhu Yongping, director of the Guangzhou Datong Law Firm, said the circular
offered a template that local jurisdictions could use to draft or amend
their own laws. Improvements were needed, Zhu said, because even with
encouragement from propaganda, people were largely ignoring others in
distress.

He argues existing rules do not go far enough. "Helping others is a moral
issue. But in this era, only legal measures can lift the level of morality
of the public."

Zhu backs the approach favoured by several European nations, where
bystanders have an obligation to help, so long as the rescuer is not
putting his own life at undue risk. Ignoring that duty is criminal.

China could introduce penalties along these lines for people who fail to
extend help, such as issuing a verbal warning, notifying employers or
publishing names. Police would decide through investigation whether a
person should be held accountable, he said. The mainland's omnipresent
security cameras could determine who is to blame.

In North America, the opposite approach is used, making people who
intervene in an emergency immune from later prosecution or lawsuits. The
Canadian province of British Columbia, for example, states in its Good
Samaritan Act: "A person who renders emergency medical services or aid to
an ill, injured or unconscious person, at the immediate scene of an
accident or emergency, is not liable for damages for injury to that
person."

In China, fear of being sued - either by the person needing help or their
family - can deter people from getting involved. There have been several
high-profile cases in which the court has found a rescuer responsible for
worsening a person's injuries and ordered compensation.

Just the threat of financial liability can have a powerful effect. Earlier
this month, a fish vendor in Xiangtan, Hunan helped send an 83-year-old
woman to hospital after she fell down on a street. Her family hounded the
man for a 200,000 yuan (HK$242,000) payment. Panicked, the vendor
committed suicide by drinking pesticide.

Wang Zhongxing, a law professor at Sun Yat-sen University, disagreed that
penalties should be introduced to foster a good-Samaritan culture. Wang
said the first step should be to tighten loopholes in existing laws. The
definition of good-Samaritan behaviour under criminal law was too narrow
and should be reworded, he said.

Jiang said the legislature had not passed a good-Samaritan law because the
central government did not deem it a priority.

Zhu said the Xiao Yueyue incident had perhaps forced an official refocus.
"Only bloody accidents will make them realise the severe decline of
morals."