China's first 'Good Samaritan'' Law

[Wolfman]

The government of Shenzhen, a large city in South China, is currently soliciting public feedback on a proposed new law to provide legal protection to those who help someone in distress. This has long been a problem in China, as people who try to help someone end up being sued (often based on lies and fabrications). Recently, there was a huge international reaction to a video that showed a young girl being hit by two vehicles, then ignored by 18 passersby...many people felt that the reason for their reaction was fear of getting in trouble if they tried to help.

This law will affect only Shenzhen, not the rest of China, and is seen largely as a pilot project that other cities may copy if successful.

More here.

 

[Ryokan]

This sounds good, and a very quick and sensible reaction from Chinese authorities.

 

[bluesjnr]

Pity it wasn't nationwide but small steps eh!

 

[McHrozni]

Here's the law, from the article:

According to the new draft in circulation, good Samaritans won't be held accountable for the consequences of their compassion unless major mistakes are made. If those in distress ever try to hold their helpers responsible for injuries or damages by deliberately distorting the facts or lodging false complaints, they will face punishment ranging from stern admonishment to fines and detainment.

A local public security fund will reward witnesses who provide verified testimony in favor of the good Samaritans once there is any lawsuit, says the draft.

What's a "verified testimony"?

McHrozni

 

[rjh01]

What happens in the rest of the world? If you and I help someone who then turns round and sues us because our care was less than 100% professional standard then do we have any protection?

 

[McHrozni]

What happens in the rest of the world? If you and I help someone who then turns round and sues us because our care was less than 100% professional standard then do we have any protection?

It depends on where you're from. USA, Canada and most of Europe have had good Samaritan laws for decades, they started in 1960s or so. In Europe you often even face a fine and sometimes imprisonment if you don't offer assistance.

McHrozni

 

[Chaos]

What happens in the rest of the world? If you and I help someone who then turns round and sues us because our care was less than 100% professional standard then do we have any protection?

Over here, I´m pretty sure you´d be safe, unless there is convincing evidence that you did damage on purpose.

I´m not entirely sure, but I seem to recall that professionals - paramedics, doctors, nurses etc - are held to somewhat tighter standards even when off-duty, because they know all they need to know to do things right. If true, it kind of makes sense IMHO, since after all, these are professionals, so you can expect professional standard from them - although of course they can´t and won´t be blamed for not having first-aid equipment on them at all times.
As a layman, however, you cannot be sued for any damage you cause through negligence or not knowing any better, and you cannot be held responsible for not rendering assistance if doing so would have placed yourself in any danger.

 

[Ryokan]

It depends on where you're from. USA, Canada and most of Europe have had good Samaritan laws for decades, they started in 1960s or so. In Europe you often even face a fine and sometimes imprisonment if you don't offer assistance.

McHrozni

That's how it is in Norway, at least, although I haven't ever heard of someone being prosecuted for not helping someone in need.

I understand that in countries like the USA where there isn't any universal health care, it's not uncommon to sue everybody involved to be able to get money to pay any medical bills that might result from the situation.

 

[Hellbound]

Over here, I´m pretty sure you´d be safe, unless there is convincing evidence that you did damage on purpose.

I´m not entirely sure, but I seem to recall that professionals - paramedics, doctors, nurses etc - are held to somewhat tighter standards even when off-duty, because they know all they need to know to do things right. If true, it kind of makes sense IMHO, since after all, these are professionals, so you can expect professional standard from them - although of course they can´t and won´t be blamed for not having first-aid equipment on them at all times.
As a layman, however, you cannot be sued for any damage you cause through negligence or not knowing any better, and you cannot be held responsible for not rendering assistance if doing so would have placed yourself in any danger.

Actually, Good Samaritan laws were enacted primarily for those professionals when acting off-duty. They specifically don't apply if the person is being paid (i.e.-he works as a paramedic and is on duty at teh time), but they do apply whern the person is acting on their own. In fact, in some areas, good samaritan laws only apply to people with some degree of first aid or first responder training, and not to laymen at all.

Also, as a layman, you most certainly can be sued for damage caused, depending on the concept of imminent peril. For example, if someone passes out and you try to give them CPR, while untrained, when the person was NOT having a heart attack (and didn't need CPR at all), you could be sued for breaking the persons ribs (or, in extreme cases, actually causing their death yourself). There was no imminent peril (in other words, nothing needed to be done), and something as simple as checking for pulse and breathing would have shown the person was not in danger.

While the precise details vary from jurisdiction to jurisdiction, the main thing good samaritan laws do is place the burden on the injured party (or their representatives). If they wish to sue you for freely rendering aid, then they have to make the case that your attempt at aid was reckless and/or unecessary.

 

[pilot padron]

Could that be why...

What happens in the rest of the world? If you and I help someone who then turns round and sues us because our care was less than 100% professional standard then do we have any protection?

Black Friday shoppers reportedly just stepped over and around a man who just passed out and died while in the store ??

 

[McHrozni]

Also, as a layman, you most certainly can be sued for damage caused, depending on the concept of imminent peril. For example, if someone passes out and you try to give them CPR, while untrained, when the person was NOT having a heart attack (and didn't need CPR at all), you could be sued for breaking the persons ribs (or, in extreme cases, actually causing their death yourself). There was no imminent peril (in other words, nothing needed to be done), and something as simple as checking for pulse and breathing would have shown the person was not in danger.

Correct. I'd also like to expand this a little bit, if you're a layman and give CPR to someone who you can reasonably assume needs it (irresponsive, not breathing), you can't be sued for damage caused, even if your treatment wasn't appropriate for the situation at all.

McHrozni

 

[Wolfman]

Here's the law, from the article:

A local public security fund will reward witnesses who provide verified testimony in favor of the good Samaritans once there is any lawsuit, says the draft.

What's a "verified testimony"?

McHrozni

Keep in mind, this is an English translation of the Chinese original (and for obvious reasons, the law will be passed in Chinese, not in English). Essentially, this would be pretty much be the same as "provide reliable eye-witness testimony".

The reason for this is simple -- there's still the whole "it's not my business, I don't want to get involved" thing, which would keep potential eye-witnesses from stepping forward. So the authorities would offer a small financial reward for such testimony, in cases where someone is sueing falsely against someone who tried to help them.

In order to prevent people giving false testimony simply to claim the reward, they generally require collaborating testimony from two or more people...thus "verified testimony".

 

[McHrozni]

Keep in mind, this is an English translation of the Chinese original (and for obvious reasons, the law will be passed in Chinese, not in English). Essentially, this would be pretty much be the same as "provide reliable eye-witness testimony".

'kay, it's better than it sounds at any rate.

The reason for this is simple -- there's still the whole "it's not my business, I don't want to get involved" thing, which would keep potential eye-witnesses from stepping forward. So the authorities would offer a small financial reward for such testimony, in cases where someone is sueing falsely against someone who tried to help them.

In order to prevent people giving false testimony simply to claim the reward, they generally require collaborating testimony from two or more people...thus "verified testimony".

Hm. The injured party would be required to prove there was wrongdoing on behalf of the helper I would think? Assuming that's the case, wouldn't this actually help the injured party in winning the case - they could claim all witnesses on behalf of defense have a conflict of interest and want to claim the said financial reward, and they had plenty of time to ensure their testimonies match. I'm quite sure this would be an argument in their favor outside of China.

How is it in China? I persume there are perjury laws?

McHrozni

 

[Wolfman]

Hm. The injured party would be required to prove there was wrongdoing on behalf of the helper I would think? Assuming that's the case, wouldn't this actually help the injured party in winning the case - they could claim all witnesses on behalf of defense have a conflict of interest and want to claim the said financial reward, and they had plenty of time to ensure their testimonies match. I'm quite sure this would be an argument in their favor outside of China. How is it in China? I persume there are perjury laws?

Some background. First, as mentioned above, this is a municipal regulation that is currently being proposed by the Shenzhen government; it has not been passed yet. Over the past year, the Shenzhen gov't passed several laws that ended up garnering huge criticism and protest, often with the Beijing gov't stepping in to tell them to get rid of it. The Shenzhen gov't has therefore decided to take a new tack, and particularly in regards to legislation concerning social issues (such as helping those who are injured), first release a draft version to the public, and get their feedback and suggestions for revision. I agree that there are potential problems with the way this is worded (although I'm not sure whether the original Chinese version is this vague, or if its a result of translation); but that's part of the reason for doing it this way. The Shenzhen gov't can get feedback, and have such problems pointed out, before they actually make it a law.

 

[Toke]

It sounds like a good idea, although it may not be enough on it´s own.
Here the complain from assorted professionals is that people are still too hesitant in providing help/first aid. The cause is peoples insecurity in their own ability to help and their sugested solution is more first aid cources, perhaps some follow up on the one that goes with driving lessons.

 

[McHrozni]

Some background. First, as mentioned above, this is a municipal regulation that is currently being proposed by the Shenzhen government; it has not been passed yet. Over the past year, the Shenzhen gov't passed several laws that ended up garnering huge criticism and protest, often with the Beijing gov't stepping in to tell them to get rid of it. The Shenzhen gov't has therefore decided to take a new tack, and particularly in regards to legislation concerning social issues (such as helping those who are injured), first release a draft version to the public, and get their feedback and suggestions for revision. I agree that there are potential problems with the way this is worded (although I'm not sure whether the original Chinese version is this vague, or if its a result of translation); but that's part of the reason for doing it this way. The Shenzhen gov't can get feedback, and have such problems pointed out, before they actually make it a law.

I see. Constructive criticism is good

One more thing - how do courts in China operate in such cases? Does innocent until proven guilty apply? Specifically, in the case of "he said, she said", with little or no other evidence, would the court side with the defence or could it go either way?

McHrozni

 

[Wolfman]

I see. Constructive criticism is good

One more thing - how do courts in China operate in such cases? Does innocent until proven guilty apply? Specifically, in the case of "he said, she said", with little or no other evidence, would the court side with the defence or could it go either way?

McHrozni

Well, that's rather complicated.

Under Chinese law, the concept of "innocent until proven guilty" is applied to all non-capital cases (capital crimes have a lower standard of proof). That's on the 'official' side of things.

However, unofficially, corruption is still a big problem, particularly when political connections come into play. There have been a number of very high profile abuses of power that have been publicized in recent years, where terrible abuses of justice took place because someone had strong political connections.

On the positive side, China's media has become quite active in searching out and publicizing such abuses, in many cases forcing a new trial and verdict.

So...if both people involved in such a case are relative nobodies, or have similar social/political standing, it'd likely be a relatively fair trial. If one of them had significantly more political influence than the other, it could influence the verdict.

 

[McHrozni]

Well, that's rather complicated.

Under Chinese law, the concept of "innocent until proven guilty" is applied to all non-capital cases (capital crimes have a lower standard of proof). That's on the 'official' side of things.

Although not relevant to this discussion, this definitely is a WTF?! moment for me.

However, unofficially, corruption is still a big problem, particularly when political connections come into play. There have been a number of very high profile abuses of power that have been publicized in recent years, where terrible abuses of justice took place because someone had strong political connections.

On the positive side, China's media has become quite active in searching out and publicizing such abuses, in many cases forcing a new trial and verdict.

So...if both people involved in such a case are relative nobodies, or have similar social/political standing, it'd likely be a relatively fair trial. If one of them had significantly more political influence than the other, it could influence the verdict.

Just so we understand each other - assuming there is no corrupion involved, the court would deliver a not guilty verdict in a case I described above? That's my (okay, Western) standard of a fair trial in such case.

McHrozni

 

[Wolfman]

Although not relevant to this discussion, this definitely is a WTF?! moment for me.

Yeah, and not just for you.

About ten years ago, China changed its laws to introduce 'innocent until proven guilty' as part of the legal process; prior to that, no such standard was required (a side note -- a great many Chinese opposed this, because they felt it would lead to more guilty people going free due to lack of sufficient evidence; a key cultural difference in how we look at such things).

However, in capital cases (which cover a great many more crimes than in western countries, including corruption and anti-government activities), the gov't wanted to retain the power to sentence people even if there was not sufficient evidence to prove their guilt beyond a reasonable doubt. While there are obvious reasons in this to silence/punish their opponents, there's another aspect...most Chinese supported (and still support) this, because they consider capital crimes to be the most serious, and therefore consider that it is more important to ensure that guilty people go to jail, and don't get released for lack of sufficient evidence (even if it means some innocent people get caught as well).

Just so we understand each other - assuming there is no corrupion involved, the court would deliver a not guilty verdict in a case I described above? That's my (okay, Western) standard of a fair trial in such case.

McHrozni

In such a case, the burden of proof would be on the injured party, to prove beyond a reasonable doubt that the person they are suing intentionally caused harm, and was not acting simply to help them. My understanding (and again, this is based on English translations of limited portions of the original text, from several different sources) is like this:

1) If they can't prove the person being sued actually intended to harm them, or was not acting to help them (ie. they pushed them to the ground, causing injury), then their case will be dismissed.

2) If witnesses come forward who testify that the person being sued intended to harm them, or was not acting to help them, then that person will be held liable, and must pay whatever penalty the court decides.

3) If witnesses come forward who testify that the person being sued is innocent, and further that it seems the injured party knows this, and is suing maliciously, then the case will be dismissed, and the injured party may face further fines/punishment for bringing the case forward.

 

[McHrozni]

Yeah, and not just for you.

About ten years ago, China changed its laws to introduce 'innocent until proven guilty' as part of the legal process; prior to that, no such standard was required (a side note -- a great many Chinese opposed this, because they felt it would lead to more guilty people going free due to lack of sufficient evidence; a key cultural difference in how we look at such things).

However, in capital cases (which cover a great many more crimes than in western countries, including corruption and anti-government activities), the gov't wanted to retain the power to sentence people even if there was not sufficient evidence to prove their guilt beyond a reasonable doubt. While there are obvious reasons in this to silence/punish their opponents, there's another aspect...most Chinese supported (and still support) this, because they consider capital crimes to be the most serious, and therefore consider that it is more important to ensure that guilty people go to jail, and don't get released for lack of sufficient evidence (even if it means some innocent people get caught as well).

I'm not quite sure I'm ready to put this under "cultural differance", more like "residual primitivism", but okay. Another WTF moment is bolded

In such a case, the burden of proof would be on the injured party, to prove beyond a reasonable doubt that the person they are suing intentionally caused harm, and was not acting simply to help them. My understanding (and again, this is based on English translations of limited portions of the original text, from several different sources) is like this:

1) If they can't prove the person being sued actually intended to harm them, or was not acting to help them (ie. they pushed them to the ground, causing injury), then their case will be dismissed.

2) If witnesses come forward who testify that the person being sued intended to harm them, or was not acting to help them, then that person will be held liable, and must pay whatever penalty the court decides.

3) If witnesses come forward who testify that the person being sued is innocent, and further that it seems the injured party knows this, and is suing maliciously, then the case will be dismissed, and the injured party may face further fines/punishment for bringing the case forward.

Doesn't seem too bad in principle, other than what I suspect is overreliance on witness testimony. It's useful, but notoriously unreliable - especially once you start offering a priori rewards for a testimony that would prove a desired result.

Does China offer rewards for other testimonies as well?

McHrozni