I was reminded by a recent article on Xinhuanet that China’s new General Rules of Civil Law (which I discussed here last March) came into effect earlier this month. The Xinhuanet article is specifically about that part of the General Rules (Article 184) that can be called a “Good Samaritan” law.
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?
And it’s not clear that Article 184’s answer to this question is really a good one. As I wrote in my earlier blog post on this,
those who attempt to aid others in emergency situations [will] 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. . . . . As a result, the provision was [weakened] 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.