Residents of Shanghai can now see if their brave acts make the cut as “heroic deeds”.
In a draft good Samaritan law, unveiled at a legal workers seminar, a heroic deed is defined as an act taken to safeguard national or public welfare, or other people’s personal safety or financial security.
Those who brave a risk to combat illegal behaviors, assist related departments to fight crimes, or take actions in emergencies, can even apply for compensation and an award.
Acts obligated by law or by agreement, however, should not be viewed as heroic deeds, the draft said.
Heroic deeds. Nice touch. Apparently the recent Lei Feng revival campaign made a difference after all.
This debate has taken place all over China within the last couple of years, spurred on by a few notorious cases involving Good Samaritans that were later accused of misdeeds or negligence. Many commentators have bemoaned the fact that such solid citizens, who were apparently acting out of the goodness of their hearts, have been subject to legal liability. As they say, no good deed goes unpunished.
But the fix is easier said than done. It’s one thing to say that a person acting in good faith should be immune from liability, but it’s another thing entirely trying to prove it to a judge or a cop. That’s the problem I have with this whole “solution”.
Consider the proposed language cited above from China Daily (I don’t have the original Chinese version). “An act taken to safeguard national or public welfare, or other people’s personal safety or financial security.” The latter two terms are probably easier to define; they seem to refer to protection of an individual or their property. On the other hand, national or public welfare could mean just about anything, and I am reminded of China’s problems with the slippery definition of “national security.”
But even if we’re all the same page with this terminology, that doesn’t mean that the underlying problem has been satisfactorily dealt with. Consider for example the notorious (and somewhat murky) Peng Yu case, where a young man helped out an old woman who fell off a bus (she later sued him). Ultimately, this dispute came down to eyewitness testimony and the age-old “he said she said.” These kinds of tort cases are always fact specific and very often involve two or more people with very different accounts of the same events.
In addition to all that, the judge is now going to be charged with figuring out whether one of the parties was acting in good faith or not. Peng Yu says he was helping an old woman, she says the young ruffian pushed her off the bus. The only way to determine good faith is to first decide who is telling the truth.
Perhaps I’m being a little harsh though. In many cases, I’m sure that eyewitness testimony can clearly show that the accused was only trying to help. This draft law would at least limit liability under those circumstances. Moreover, apparently the draft law being considered in Shanghai would penalize folks for turning against their would be saviors. If nothing else, that would have a chilling effect on these lawsuits — although I’m not sure that’s always a good thing.
By the way, I’m not sure if you noticed in that excerpt above, but there’s also mention of assisting authorities with emergencies and crime-fighting. I’m generally okay with protecting bona fide Good Samaritans, but I’m not so keen on encouraging vigilantes. “Yes officer, I did stick that knife in that guy’s head, but I only did it because he was a threat to national security. I have it on good authority that he was going to put up that snarky 大字报 in a very prominent public space. Can I have my hero badge now?”
Well, this is just a draft law, so there’ll be plenty of time to whittle down the vague language. But I’m definitely not sold on this so far.