2.1.1 The “Peng Yu” Case

An infamous 2006 case epitomized the “disproportionate” impact of an otherwise minor personal dispute on society’s collective moral behaviours. According to the first-instance court judgment, on 20 November 2006, an elderly lady surnamed Xu was about to board a bus when she fell after clashing with a young man, Peng Yu.Footnote ²⁰ Peng then accompanied Xu to hospital with her family and voluntarily settled her approximately 200-yuan medical bill. Xu later accused Peng of causing her fall while Peng insisted he was just helping her. In court, the sole witness testified that, while he saw Peng helping Xu, he could not tell who was at fault. Despite Xu’s failure to prove her case, the judge, instead of dismissing her claim,Footnote ²¹ resorted to “common sense” and “daily life experience” in holding Peng accountable. His reasoning: Peng’s behaviour was against “common sense” because, if he was innocent, he could have left the scene after Xu’s family arrived and should not have offered to pay Xu’s medical bill or at least should have sought reimbursement. Based on a “common sense assessment” that a mere bystander would not have gone as far in helping a stranger but for his personal responsibility, the judge imposed a degree of culpability on Peng and ordered him to shoulder 40% of Xu’s losses (45,876 yuan).Footnote ²²

A media frenzy followed. In particular, a barrage of online reports, exaggerated publicity and sensational commentaries on Weibo gripped the public. Terms such as “” (“Peng Yu”) and “” (“Nanjing’s old lady”) have become instant Internet hits. For example, an entry of the phrase “” (“Peng Yu case”) on China’s popular search engine Baidu on 1 June 2008—nearly two years after the incident—registered 239,000 relevant websites. The term “Nanjing’s old lady” gained notoriety as the synonym of “returning kindness with ingratitude.”Footnote ²³ Senior officials also joined the fray amid widespread public anger. For example, on 15 October 2007 during the 17th National People’s Congress, then CPC Jiangsu Provincial Party Secretary Li Yuanchao (now Vice President of the People’s Republic of China) reportedly raised the Peng Yu case in a discussion session.Footnote ²⁴ In March 2008, just before Peng’s appeal trial, the President of Jiangsu Province’s Higher People’s Court told reporters that, after intense mediation assisted by judicial personnel, the parties had reached a confidential settlement. According to Chengdu Commercial News, Peng accepted 10% responsibility and paid Xu about 10,000 yuan in compensation.Footnote ²⁵

2.1.2 A “Flawed” Judgment and the Ensuing “Social Disasters”

Whatever the true extent of Peng’s liability, the judgment has already done its damage to society. Many legal experts criticized its reasoning as being flawed and illogical.Footnote ²⁶ First, it violated at least two provisions on civil procedures. According to Section 64 of the Code of Civil Procedure ()Footnote ²⁷ and Sections 1 and 2 of Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures (),Footnote ²⁸ the burden of proof lies with the claimant, who bears the “adverse consequence” for failing to prove a claim or rebut a counterclaim. Second, the “common sense” assessment that “a mere bystander would not have gone as far in helping a stranger but for his personal responsibility” was problematic. Not only did it arbitrarily downplay Peng’s possible altruism, its underlying message was so negative it was contrary to popular moral demand.Footnote ²⁹

While there is no evidence that Chinese judges habitually rule on “common sense,”Footnote ³⁰ the Peng Yu case more or less reflected the questionable standards of China’s legal system. For example, a legal academic criticized the systemic defects in the legal education curriculum, especially the neglect of logical training.Footnote ³¹ He argued, under a lop-sided pedagogy, law teachers tend to focus on teaching legal texts rather than logical skills. Besides, the dominance of utilitarian thinking in society as well as on university campuses undervalues the humanities and social and natural sciences. Graduates produced by such a system may then lack competence in solving legal problems in a logical and reasonable manner. In any event, the fact that a single case could have yielded such widespread public outrage revealed deep distrust in the judicial system and its personnel.

The media frenzy also fed into a common perception of a “system of lies” and deterred many from following the Good Samaritan example.Footnote ³² After Peng Yu, there have been numerous reported cases of an injured lying helpless in the street (see Table 1), or a Good Samaritan being accused of wrongdoings (see Table 2). All of these helped reinforce the Good Samaritan’s dilemma. The fear it generated was revealing. For example, in early 2009, a 75-year-old Nanjing man fell after alighting from a bus. No one came to his aid until after he yelled, “I fell on my own, you all do not need to worry, it had nothing to do with you all.”Footnote ³³ And, in September 2011, an 88-year-old Wuhan man was left to die in a busy neighbourhood in broad daylight.Footnote ³⁴ After the story was circulated on the Chinese Internet, scores of users voiced out for the bystanders. An online poll by the Party-run People’s Daily found that 80% of respondents say they would not help an elderly person lying in the street for fear of being framed.Footnote ³⁵ Another poll on Sina Weibo, China’s leading microblogging site, yielded a similar result, with 43% saying “no,” 38% undecided, and only 20% saying they would “definitely” help.Footnote ³⁶

Table 1

Examples of Chinese media reports in which a victim received no help on the street

Table 2

Examples of Chinese media reports in which the Good Samaritan was allegedly extorted

According to a critic, by telling the public “kindness is rare”—upon which Peng was held to be partially liable—the judgment helped discourage people from doing good deeds. With “why did you help if you were not liable” being seen as an easy argument for accident victims and their families to hold a Good Samaritan to account, helping a stranger has virtually become a risky business. The ensuing social impact was deemed “disastrous.”Footnote ³⁷ For example, an entry of the Chinese phrase “” (“No one dared help a fallen elderly”) on Baidu on 22 April 2014, nearly 8 years after the Peng Yue case, registered 3,730,000 relevant websites. Many of them feature articles with sombre titles such as “The Sin of the Nanjing Judge: In China, No One Dared Help a Fallen Elderly,”Footnote ³⁸ “No One Dared Help a Fallen 80-Year-Old Lady,”Footnote ³⁹ “Collapsed Elderly Regrettably Died,”Footnote ⁴⁰ and “With Our Kindness Abused, Can We Only Be Onlookers?”Footnote ⁴¹

2.2.1 Social Repercussions of the Peng Yu Case

Dubiously, the public were told a different story five years after the Peng Yu saga. Details of the 2007 confidential settlement showed that Peng was indeed responsible for Xu’s injury. In an interview with the influential Party-run news magazine Liaowang (Outlook Weekly) in January 2012, Nanjing Politics and Law Committee Secretary Liu Zhiwei urged people not to “misread” or “exaggerate” the facts of the Peng Yu case, or see it as a “landmark event” of moral decline.Footnote ⁴² But, as the whole saga has already been etched on the minds of the general public and become a classic case of China’s moral failings, the belated revelation only deepened suspicion against the judiciary and the media. People remained largely reluctant to help a stranger on the street.Footnote ⁴³ As the title of an online commentary read, “It Is Too Late to Ask the Public Not to Misread the Peng Yu Case.”Footnote ⁴⁴ Critics also came from within the Party. For example, the Internet “censor-in-chief” at Xi’an’s Propaganda Department openly challenged the timing of the disclosure at a time when society was reeling from the Xiao Yue Yue tragedy.Footnote ⁴⁵ An editor at the Chongqing Business Daily aptly captured the popular sentiment. He wrote:

Regrettably, stories upon stories of victims dying in the street or Good Samaritans being driven to desperation continued to hit the headlines. For example, in October 2013, a woman had her neck stuck between the roadside railings in a busy Beijing street. As the security camera footage showed, for half an hour, over a dozen gawking bystanders did nothing other than taking photographs until someone called the police. The woman was later declared brain dead.Footnote ⁴⁷ On 2 January 2014, a 46-year-old Good Samaritan in Guangdong, surname Wu, committed suicide having allegedly been extorted of a huge sum after helping an elderly on the street.Footnote ⁴⁸ According to reports, while riding his motorbike on the New Year’s Eve, Wu came to the aid of an old man who had apparently been knocked over. He drove the man to a local clinic and helped him pay his 3,500 yuan medical fee, only to be accused of causing his injuries. Wu’s widow said the old man and his family had demanded a “compensation” of hundreds of thousands of yuan. Driven to desperation, Wu reportedly told his daughter he would rather die to prove his innocence. According to Xinhua, before ending his life, Wu had called a friend urging him not to do good deeds anymore.Footnote ⁴⁹ Yet, the old man’s daughter insisted: “If he hadn’t hit my father with the motorbike, why would he be so kind as to bring my dad to the hospital and pay for his medical expenses himself?”Footnote ⁵⁰

The trust deficit between people has grown to a point where many parents now discourage their children from helping the elderly unless witnesses are around.Footnote ⁵¹ On 15 June 2013, a 74-year-old woman accused three primary school boys for knocking her down in the street of Dazhou in Sichuan province.Footnote ⁵² The boys, however, insisted that they had actually come to her aid. According to Jiang, father of one of the boys, the woman asked them to pay her medical cost of around 20,000 yuan having initially demanded 200,000 yuan. Amid the impasse, on 16 November, the woman’s son carried her to Jiang’s home—where she stayed for two days—to press for payment. Having contacted Chengdu-based West China Metropolis Daily, Jiang reported to the police on 21 November. The next day, based on evidence from three witnesses, the police concluded that it was a case of extortion. It ordered a seven-day administrative detention against the woman but remitted it due to her old age, while detaining her son for 10 days with a 500 yuan fine. Yet, the dispute continued. On 23 November 2013, the lady swore to a journalist of Chengdu’s Economic Daily that she did not lie. Her family insisted on her innocence and considered applying for an administrative review of the case. On the other hand, one of the accused children told reporters that, from now on, he would first seek a witness before going to help a fallen elderly person.Footnote ⁵³

Society saw growing suspicion towards elderly people as potential extortionists. Numerous stories of elderly victims suing Good Samaritans continued to reinforce the stereotype. For example, an entry of the phrase “” (“Helping a Fallen Elderly Only to Be Wrongly Accused”) on Baidu registered 2,760,000 related websites on 26 April 2014. According to an online survey in the wake of the above Dazhou saga in June 2013, only 14% of the respondents said they would help a senior citizen on the street.Footnote ⁵⁴ In a similar survey by Sina Weibo, over 3,400 said they would not help, compared to 730 who would.Footnote ⁵⁵ The national soul-searching in 2011 has regrettably given way to the fear of being extorted by society’s presumably most vulnerable members.

2.2.2 The Cultural Factors: Confucianism and the Predominance of Family

This state of affairs contrasts with a Confucian tradition steeped in altruism. The idea of ren, meaning humanity or human-heartedness,Footnote ⁵⁶ permeates the Analects, dubbed the “Bible of Confucianism.”Footnote ⁵⁷ Confucius’s golden rule “Do not impose upon others what you yourself do not desire” captures the essence of classic Confucian teachings.Footnote ⁵⁸ Mencius, his disciple, famously said: “No man is devoid of a heart sensitive to the suffering of others.”Footnote ⁵⁹ Known for his moral instructions to the ruling class, Mencius once advised the king:

Under classic Confucianism, benevolence was a shared norm in a society that accorded special attention to the old and young. This, however, does not sit comfortably with a contemporary China where stories of distressed elderly being ignored in the streets frequently made headline news.

This apparent contradiction can be seen in light of the idea of “filial piety.” Filial piety featured in Xiao Jing (The Classic of Filial Piety), a Confucian classic, as “the root of (all) virtue” and “(the stem) out of which grows (all moral) teaching.”Footnote ⁶¹ Equally central to classic Confucianism was the belief in everyone’s potential to master li, “the rules of propriety,”Footnote ⁶² and become junzi,Footnote ⁶³ a virtuous man capable of fulfilling his roles within Five Cardinal Relationships, namely “parent and child, ruler and subject, husband and wife, old and young, and friend and friend.”Footnote ⁶⁴ While three of those carried blood ties, the other two were accorded quasi-familial status as the “paternal” ruler and “brotherly” friend.Footnote ⁶⁵ In Confucian times, social order revolved around these relationships from which human beings acquired dignity and brought honour to their family.Footnote ⁶⁶ Besides, as a farming society, economic imperative led one “to live where one’s father or grandfather lived, and where one’s children will continue to live.” The predominance of the family and family-based relations had Fung Yu-Lan concluding that “The family system was the ‘social system of China’.”Footnote ⁶⁷

Hence, while Confucius and Mencius espoused common humanity, they knew it was virtually impossible to practise “universal love.”Footnote ⁶⁸ As much as he aspired to it, Confucius did not believe in identical treatment. It was because people did feel and behave differently towards different people in different relationships, just as one would observe three years of mourning exclusively for a deceased parent.Footnote ⁶⁹ Mencius went one step further, criticizing the idea of “universal love” as a denial of “the special relationship between parents and children”—foremost among the Five Cardinal Relationships.Footnote ⁷⁰ Despite its altruistic underpinnings, the Confucian worldview remains essentially hierarchal. An ethics that distinguishes people based on status and relationship can have a bearing on one’s attitude towards a stranger to whom one owes no moral obligations.

2.2.3 “Guanxi”: Cultural Practice or Instrumentalism?

At this juncture, the idea of guanxi (relationship) may help contextualize China’s bystander problem and its people’s presumed selfishness. Confucian ethics has continued to influence socialization in contemporary Chinese society. According to Fei Xiaotong, China’s preeminent sociologist and anthropologist, to understand the problem of “selfishness” one must look at the “pattern of the entire social structure.”Footnote ⁷¹ To him, unlike in the West where individuals formed themselves into organizations with agreed boundaries, the structure of Chinese society was akin to “the circles that appear on the surface of a lake when a rock is thrown into it.”Footnote ⁷² Each circle is interrelated as a person steps in and out of it at different points in time and place.Footnote ⁷³ Accordingly, “[s]ocial relationships in China possess a self-centered quality. Like the ripples formed from a stone thrown into a lake, each circle spreading out from the center becomes more distant and at the same time more insignificant.”Footnote ⁷⁴

This figurative account resonated with the Five Cardinal Relationships featured in the Book of Rites (Liji). Under this Confucian classic, everyone was expected to “stay in his place,” hence “fathers are differentiated from sons, those remote from those close, those who are intimate from those who are not.”Footnote ⁷⁵ Society was made up of numerous circles each comprising a “self,” whose connections in turn formed a web of personal relations. One accorded a certain degree of treatment to another commensurate with their relationship, the so-called “difference between those who are close and those who are distant” (). Under this “egocentric” pattern, everything rested on “an ideology in which the self is central.”Footnote ⁷⁶ According to Fei, the idea of “discrete centers fanning out into a weblike network” was the root of selfishness in Chinese society, where people would “sacrifice their families for their own self-interests, their party for their families’ interests, their country for their party’s interests, and the whole world for their country’s interests.”Footnote ⁷⁷

This cultural discourse helps put China’s bystander problem into context. The idea of “difference between those who are close and those who are distant” resonates with that of guanxi—which literally means “relationship.” In practice, guanxi involves personal networks built on “pre-existing relationships of classmates, people from the same native-place, relatives, superior and subordinate in the same workplace, and so forth.”Footnote ⁷⁸ Unlike blood relationships, such connections require careful initiation, preservation and renewal “through the giving and receiving of gifts, favors and dinners or banquets.”Footnote ⁷⁹ From greasing the wheels of a snail-paced bureaucracy to securing a government contract, guanxi is what many Chinese rely on to “get things done” today.Footnote ⁸⁰ But, whether guanxi is a means or an end in itself has been a subject of contention. In his paper on the guanxi culture in a North China village in the early 1990s, Yunxiang Yan noted the contemporary scholarly debate over guanxi.

The “instrumentalist” school saw guanxi as “a means of pursuing personal interests” against a unique historical backdrop.Footnote ⁸¹ Esteemed China observer Ezra F. Vogel, for example, argued that political realities under Mao Zedong’s socialist regime had necessitated the practice of guanxi.Footnote ⁸² In his seminal 1965 article, Vogel described how social values and behaviours changed after 1949.Footnote ⁸³ Living under a dictatorship that kept track of any signs of ideological deviance, Chinese people profoundly changed the way they interacted. They tended to avoid contacts with strangers and foreigners “since one can never be sure what their standing with the régime might be.”Footnote ⁸⁴ Gone were the days when friends could confide in each other in the comfort of their own homes, because “any information about dress or house furnishings or eating habits, no matter how innocuous it may seem to the reporter, might be taken to mean that a person is not truly a member of the peasant or proletariat class.”Footnote ⁸⁵ Over time, they have “learnt to live with the risks of friendship” and to always err on the side of caution when dealing with one another.Footnote ⁸⁶

Reflecting on Vogel’s account, Thomas B. Gold wrote in 1985 that “instrumentalism and commoditization” had replaced friendship and comradeship in defining social relations since the Cultural Revolution.Footnote ⁸⁷ At a time when jobs and resources were limited and bureaucratically controlled, guanxi, based on reciprocity and thriving on power, came to shape social interactions. From obtaining scarce commodity items from a store clerk to obtaining the coveted Party membership through a cadre, people relied on guanxi to “get things done,” often with little regard to the law, regulations, or any “universal standards of law and morality.”Footnote ⁸⁸ With guanxi being seen as “supreme law,” even young people learnt to cultivate good relations with whoever was in power so as to move up or avoid moving down the social ladder.Footnote ⁸⁹ From this perspective, guanxi is merely “a strategically constructed network of personal connections” based on “instrumental exchanges of gifts and favours.”Footnote ⁹⁰

Scholars such as Fei and Ambrose King, on the other hand, believed that guanxi was part of a “uniquely Chinese normative social order.”Footnote ⁹¹ Like Fei, King argued that Chinese society has always been organized around circles of relationships. “As a sociocultural concept kuan-hsi [guanxi] is deeply embedded in Confucian social theory and has its own logic that may be said to form and constitute the social structure of Chinese society.”Footnote ⁹² Confucian teachings have made no mention of the word guanxi. Its classical equivalent is lun, meaning “order or, more specifically ‘differentiated order’ among individuals.”Footnote ⁹³ In a society structured by lun, the nature of personal ties defines the role of relations between two persons on the basis of “differentiation rather than homogeneity.”Footnote ⁹⁴ Hence, compared to most Western societies, Chinese society is neither individual-based nor society-based, but “relation-based.”Footnote ⁹⁵ As a Western observer put it, Westerners “tend to see people as individuals”; while they do make distinctions between strangers and acquaintances, they basically have “one code of manners for all.” Chinese, on the other hand:

To their credit, both views respectively highlighted an essential part of guanxi. According to Alan Smart:

It is important to note that the difference between a guanxi-based material exchange and outright bribery hinges on the “relationship” of the parties in question. To keep guanxi alive and well, one needs to juggle his instrumental goals with the forms of exchange. The art of guanxi thus lies in skilfully applying moral and cultural rites such as “obligations and reciprocity in pursuit of both diffuse social ends and calculated instrumental ends.”Footnote ⁹⁸

Despite its instrumentality, guanxi is essentially about relationships. A purely instrumentalist analysis, therefore, risks overlooking fundamental human institutions upon which all guanxi relations are based, namely “the family, kinship, neighbourhood and community.”Footnote ⁹⁹ To thoroughly grasp the idea of guanxi, one should at least acknowledge both its instrumental and its relational aspects. According to Andrew Kipnis, “all practices of guanxi production either presumed or asserted an equivalence between material obligation (the obligation to assist with favors, labor, money, or other material goods at a future date) and human feeling (ganqing).”Footnote ¹⁰⁰ Unlike contracts or briberies, practices of guanxi production belong to a realm where the depth of feeling determines the degree of material obligation.Footnote ¹⁰¹ “The more ganqing there is, the closer the guanxi. The closer the guanxi, the more it can be relied upon to bring economic, political, and social benefits. Such benefits in turn produce stronger ganqing.”Footnote ¹⁰² In guanxi, relation and instrumentality are two sides of the same coin.

It is perhaps no coincidence that two veteran China watchers—a Chinese anthropologist and a Western journalist—respectively used the term “magnetic field” to describe the workings of guanxi in Chinese society. In his influential book on Chinese culture, Sun Lung-kee wrote that Chinese people were born to a “magnetic field of human feelings” () in which everyone seeks to be “looked after” by those regarded as being “one of us” ().Footnote ¹⁰³ Under this mentality, only when a guanxi connection was established would one begin a personal relationship with a new acquaintance. In the same vein, Fox Butterfield observed that “Guan-xi have created a social magnetic field in which all Chinese move, keenly aware of those people with whom they have connections and those they don’t.”Footnote ¹⁰⁴

In a positive light, this “social magnetic field” helps glue people together as a community of mutual help. Yet, the absence of guanxi may be regarded as a justifiable reason for inaction in circumstances where altruism towards a stranger is called for. While research on how Chinese people socialize with strangers is scarce, the available empirical evidence did suggest they tended to “behave rationally when interacting with strangers.”Footnote ¹⁰⁵ The assumption: in a relation-based society, everyone relies on and is satisfied with his established groups as the primary source of social support. Promoting relationships with those regarded as being “one of us” becomes a survival need. The case with a stranger is different. With neither ganqing nor guanxi, one tends to take a more calculative approach dealing with someone totally unknown.

A 1974 study helps shed some light on this point.Footnote ¹⁰⁶ In this cross-cultural field research, researchers were out on the streets asking pedestrians to help mail a letter. A total of 130 adult Chinese from Taipei, Taiwan, and 115 adult Americans from Albuquerque, New Mexico, unknowingly took part in the exercise. The result showed that, compared to their American counterparts, the Chinese appeared to be less helpful towards strangers. Explaining their findings, the researchers wrote that “Chinese may be bound by the traditional family obligation to help aged relatives and others who need help in the large extended family structure, but are not necessarily more helpful toward strangers from the outside world.”Footnote ¹⁰⁷ While this research is far from conclusive, this observation may help put China’s bystander problem into a cultural context.

As discussed, under Confucian ethics, one is expected to have a special sense of responsibility to his parents, families, superiors, and friends. The predominance of “clan-kin interests and ties” in a person’s life inevitably took its toll on his relationships with the wider world, especially with total strangers.Footnote ¹⁰⁸ Similarly, in the world of guanxi, people rely on personal relationships to get things done. Relation, whether based on feeling or practicality, largely determines how individuals treat one another. In either case, one’s attitude with an unknown “other” becomes a matter of personal discretion. The absence of pre-existing obligations may sometimes discourage a person from intervening in an emergency concerning someone unrelated. It is especially the case when helping a stranger may spell trouble, as constantly publicized in the media in the aftermath of Peng Yu. It is against this social background that the Good Samaritan’s dilemma should perhaps be viewed and assessed.

3.1.1 Europe

Portugal, in 1867, first imposed a legal duty to rescue.Footnote ¹²¹ That was followed by other European countries such as Italy, France, Germany, Poland, and Russia.Footnote ¹²² It remains in the penal codes of most civil law jurisdictions in Europe today.Footnote ¹²³ For example, Article 223–6[2] of France’s Criminal Code states that any person “who wilfully abstains from rendering assistance to a person in peril when he or she could have rendered that assistance without risk to himself, herself, or others, either by acting personally or by calling for aid” is punishable with up to five years of imprisonment and a fine.Footnote ¹²⁴ But, when it comes to defining when a person can be said to be “in peril,” interpretations vary. In Italy, Germany, and France, for example, a “danger to bodily integrity” is enough to create a duty to rescue. In the Netherlands, Norway, and Denmark, a bystander is required to help only when someone is facing a “danger to life.”Footnote ¹²⁵

Another question is when it is “safe” for one to help. In Germany and Belgium, “a considerable danger” to the bystander will excuse him from intervening whereas, in France and the Netherlands, “a certain risk” to oneself will suffice. In Russia, under Article 127 of the 1960 Russian Criminal Code, one is obliged to act if he knows that “such aid could be given without serious danger to himself or other persons.”Footnote ¹²⁶ The kind of assistance required of the rescuer in the circumstance also varies. In Belgium and the Netherlands, for example, a rescuer is required to personally intervene or seek help from others. In Italy, one needs only to notify the authorities without acting on his own.

Therefore, in Europe, a duty to rescue comes with different forms. The extent of one’s obligation is subject to the varying definitions about the circumstance that demands one’s interference as well as the standard of care required of the rescuer vis-à-vis the rescued.

3.1.2 United Kingdom

British common law does not recognize a duty to rescue. Lord Nicholls wrote, “The recognized legal position is that the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him.”Footnote ¹²⁷ It follows that one’s inaction per se incurs no legal liabilities, unless the parties have come within certain recognized relationships for a duty to rescue to arise in tort or contract, such as that between parents and their children, carriers and passengers, and employers and employees.Footnote ¹²⁸ Total strangers owe no duty to rescue each other even in emergencies. In a seminal British case on the law of negligence, Lord Reid aptly summarized the common law situation:

3.1.3 North America

North America presents a hybrid model. Like China, Good Samaritan law was largely a reaction to a series of cases involving a hapless victim amid indifferent bystanders.Footnote ¹³⁰ Unlike the UK, some parts of the US and Canada require a bystander to rescue another, regardless of their relationship. Most notably, Good Samaritans are generally protected from lawsuits except in the case of gross negligence.

The American law differs from state to state. At least eight states impose a duty to rescue. In Vermont, Rhode Island, and Wisconsin, criminal law imposes an affirmative duty to assist someone in peril if doing so does not endanger the rescuer or compromise the duties he owes to others.Footnote ¹³¹ Minnesota imposes only civil liability for the same omission. In other states, such as Ohio, Florida, Massachusetts, and Washington, those failing to report the commission of criminal offences may face criminal penalties.Footnote ¹³²

Vermont was the first state to pass a Good Samaritan law in 1967. The Duty to Aid the Endangered Act states that:

At the same time, the law protects the rescuer from all civil liability unless “his acts constitute gross negligence or unless he will receive or expect to receive remuneration.”Footnote ¹³⁴ This so-called “easy-rescue” model, under which a duty to rescue arises only when it poses no danger to oneself or others or when it does not affect the duties one owes to others, was followed by many other states.Footnote ¹³⁵ For example, in Minnesota, the law requires a bystander, without danger to self or other people, to seek assistance from law enforcement agents or professionals rather than attempting the rescue himself.Footnote ¹³⁶

The circumstance that triggers a duty to assist varies state by state. In Wisconsin, one is required to assist a victim of a “crime.” But the duty does not arise if others are already providing assistance or seeking help for the victim or have reported the crime to law enforcement personnel.Footnote ¹³⁷ In Florida, the law is narrowly drawn to require reporting of “sexual battery” only.Footnote ¹³⁸ The laws in Washington and Massachusetts mandate the reporting of all “violent crimes,”Footnote ¹³⁹ while the California Penal Code (Section 152.3) requires a person “who reasonably believes that he or she has observed the commission” of certain stipulated offences against a child victim to notify the authorities.

For all their differences, the above state laws share some common features. First, they depart from the common law doctrine against imposing a duty to rescue.Footnote ¹⁴⁰ Second, most states require citizens to report a crime instead of providing physical help to a victim. Except in Minnesota, Vermont, and Rhode Island, the law demands one to assist the victim and/or report to authorities in circumstances involving certain crimes. Third, the laws are unclear on the extent of the rescuer’s accountability by confining the duty to situations that it be discharged “without danger or peril to himself or without interference with important duties owed to others.”Footnote ¹⁴¹ The highly “qualified” duty to rescue and the rare occasions in which the laws had been enforced raised doubts as to whether Good Samaritan law is merely “effective symbolism.”Footnote ¹⁴²

In summary, the American law aims at limiting the rescuers’ liabilities rather than imposing a duty. Hence, all 50 states provide immunity to those who have given emergency aid to another from tort liability except in the case of “gross negligence.”Footnote ¹⁴³ Originally intended to cover medical personnel only, such laws now apply more generally in almost all circumstances.Footnote ¹⁴⁴ In recent years, Good Samaritan legislation has also been used to address social problems. For example, in response to widespread drug overdose among young Americans, about a dozen states have enacted a so-called “911 Good Samaritan legislation” that provides immunity from drug possession charges to witnesses to an overdose who called the emergency 911 line for life-saving medical services.Footnote ¹⁴⁵

Quebec is the only place in Canada that imposes a “constitutional” duty to rescue. According to its quasi-constitutional Bill of Rights, one’s constitutional right to emergency assistance forms the basis of another’s duty to rescue. Article 2 of Charte des droits et libertés de la personne (Quebec Charter of Human Rights and Freedoms) reads:

Like their American counterparts, most Canadian provinces offer protection to those who have given emergency medical aid. With the exception of “gross negligence,” volunteers and medical personnel acting in emergency are largely exempted from civil lawsuits. Under Alberta’s Emergency Medical Aid Act, for example, “physicians,” “registered health discipline members,” “registered nurses,” and even ordinary citizens who have given gratuitous medical aid to anyone who was “ill, injured or unconscious as the result of an accident or other emergency” will not be liable for:

The province of Newfoundland and Labrador has a similar law.Footnote ¹⁴⁸ Ontario’s Good Samaritan Act goes even further, allowing the gratuitous rescuer to receive “reasonable reimbursement” for expenses he has reasonably incurred in providing emergency assistance.Footnote ¹⁴⁹

3.1.4 Australia

The sparsely populated Northern Territory is the only Australian jurisdiction that imposes a duty to assist, a departure from the common law’s “no duty to rescue” doctrine. It is codified in Section 155 of the Criminal Code that reads:

Elsewhere in Australia, the law focuses on protecting rescuers, especially medical professionals who provide emergency aid, from civil liabilities.Footnote ¹⁵¹ For example, Section 16 of Queensland’s Law Reform Act exempts a medical professional or any person from legal liabilities for any act or omission in the course of rendering emergency assistance to an injured person provided “the act is done or omitted in good faith and without gross negligence” and “the services are performed without fee or reward or expectation of fee or reward.”Footnote ¹⁵² In general, a Good Samaritan would not be liable for assisting in an emergency if he has exercised reasonable care and skill.

3.1.5 Asia

Compared to the West, Good Samaritan law is a recent phenomenon in Asia. Whether to legislate or not remains a subject of debate in countries such as IndiaFootnote ¹⁵³ and Singapore.Footnote ¹⁵⁴ At present, both Japan and South Korea impose a certain duty to rescue. Japan’s law is punitive in nature, where a person may be punished for failing to rescue another in peril. Article 293 of its penal code stipulates an imprisonment term for up to one year for those who abandoned a needy person “because of age, immaturity, deformity, injury or illness or for any other reason.” Under Article 296, tougher penalties apply to those whose violation of the above provision caused bodily harm to or endangered the life of another.

South Korea’s law is narrow in scope. It requires medical professionals to provide emergency aid on victims of sudden heart attacks when conditions allow.Footnote ¹⁵⁵ Where an automatic external defibrillator (AED) is available in public areas such as airports, medical personnel, paramedics, and those trained to use an AED, where possible, are required to apply it to resuscitate a patient of sudden cardiac arrest. Failing to do so may result in a charge of refusal to act in an official capacity, omission of first aid, or even manslaughter. There is no law that immunes an AED user from legal liabilities. Article 63 of the Emergency Medical Service Act helps address this situation. Where a patient is injured or dies due to “unavoidable” emergency medical treatments by emergency medical personnel who were not at grave fault, punishment under the Criminal Act will not apply.Footnote ¹⁵⁶

5.2.1 The Proponents: Law Can Improve Morals

Society disagrees on whether China should use law to regulate morality. Those who support having a nationwide Good Samaritan law believe that it can help fix a vacuum which currently leaves do-gooders in a vulnerable position, both legally and financially.Footnote ¹⁹⁰ Tan Fang, a Guangzhou academic, believes that a national law would make people more civilized.Footnote ¹⁹¹ Fang is the founder of Chinahaoren.cn (, “China’s Good People Net”), the first charitable organization in China that offers legal and financial aid to Good Samaritans.Footnote ¹⁹² His view was shared by Yin Fu-jiang, one of a dozen lawyers who founded a group called “” (“Stop Indifference Pro Bono Lawyers Alliance”) which provides Good Samaritans with free legal service.Footnote ¹⁹³ According to Yin, the law should reflect a high standard of morality and not stifle human goodness. Hence, his group urged the public to shed their indifference and lead society to “the right path.”Footnote ¹⁹⁴

In a similar vein, others emphasized law’s function in shaping human behaviour. Citing divorce laws in Germany and the Netherlands as an example, a legal scholar argued “raising the bar for divorce” had the effects of “lowering divorce rates and stabilising families.”Footnote ¹⁹⁵ In the same way, offering tax concessions to those who have financially dependent elderly parents sends a positive message about filial piety. According to this view, legal and moral norms are in a “symbiotic relation.”Footnote ¹⁹⁶ A person gets what is moral by observing what the authority enforces. Hence, offering emergency aid becomes a moral imperative under a duty-to-rescue law. Unlike criminal law, the social effects of such law may likely to be subtle, indirect, and long-term. Yet Mary Ann Glendon argued:

5.2.2 The Opponents: Law Cannot Solve Moral Problems

There are, however, many other reasons why law should not dictate one’s decision to rescue a stranger. For example, Zeng Dexiong, dean of the Institute of Philosophy and Culture at the Guangdong Academy of Social Sciences, believed that there is a line between law and morals.Footnote ¹⁹⁸ Zeng said, while the two hit-and-run drivers who had struck Xiao Yue Yue committed a crime, the 18 bystanders merely made a moral decision. Using law to force people to interfere in a situation in which they have otherwise played no part, therefore, risks infringing individual freedom and autonomy.Footnote ¹⁹⁹ As a commentator wrote, society should instead reflect upon why people lost their sense of compassion.Footnote ²⁰⁰ Public opinion seemed to support this view. Despite the outpouring of rage and sympathy following the Xiao Yue Yue tragedy, many Chinese—already subject to various kinds of state censorship—were wary of having another legal duty imposed.Footnote ²⁰¹ According to an online poll, nearly 80% of respondents opposed imposing “a duty to rescue”—primarily because it is wrong to use law to enforce morality.Footnote ²⁰²

That begs the question of whether Good Samaritan law is the solution to a moral problem.Footnote ²⁰³ To its critics, law merely represents the “lowest common denominator.” Only morality can help set a higher standard of human behaviours. As an academic at China’s University of Politics and Law argued, law is only a minor part of human life.Footnote ²⁰⁴ It is impossible to codify all moral standards. Selective Codification may only lead to “shrinking” morality. Worse, legal coercion has an undesirable side effect of encouraging people to “avoid” situations where they may be required to render assistance. As a pedestrian said in a television documentary, nowadays, some Chinese people would look the other way when sensing someone lying in the street—for fear of being blamed for not helping.Footnote ²⁰⁵

How the law can be properly enforced also remains unclear. First, the series of Peng Yu-style cases illuminate the questionable quality of the Chinese judiciary and the low public trust it commands. Second, in practice, the line is not always clear between situations where one can safely offer help and those when it is unsafe to do so.Footnote ²⁰⁶ Since there are many factors behind one’s decision in a given circumstance, it is arguably unfair and infeasible to impose legal liabilities on people who failed to offer emergency assistance. As a scholar in Guangzhou’s Sun Yat-sen University argued, law is a “double-edged sword.” Although it can help fight crime, “it may also accuse the innocent by mistake.”Footnote ²⁰⁷ One needs to look no further than those high-profile cases where Good Samaritans were held liable for the injuries of the rescued. After all, reasonable people do disagree upon whether law, by its coercive nature, should be used to deprive people of their liberty in deciding whether or not to intervene in circumstances with which they have nothing to do.

5.3.1 The Debate

At this juncture, it pays to revisit the perennial debate over law and morality. Whether law should help enforce morals has been a contested subject in the West for more than a century.Footnote ²⁰⁸ A prominent example is the debate between British jurists H.L.A. Hart and Patrick Devlin in the late 1950s following the release of the Report of the Committee on Homosexual Offenses and Prostitution (the “Wolfenden Report”) on 12 August 1957.Footnote ²⁰⁹ In recommending the decriminalization of homosexuality between consenting adults, the Report famously proclaimed “there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”Footnote ²¹⁰ Hart, in affirmation, cited John Stuart Mill in On Liberty where he wrote “[t]he only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others.”Footnote ²¹¹ Devlin, on the other hand, argued “it is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter.”Footnote ²¹² To him, if “exploitation” of prostitutes continued to justify the criminalization of brothel keeping, “there is virtually no field of morality which can be defined in such a way as to exclude the law.”Footnote ²¹³

Although the Wolfenden Report has been synonymous with decriminalization of homosexuality, it has never rejected outright the law’s role in regulating morality. In fact, it affirmed the function of criminal law in denouncing private moral conduct contrary to “public good,” examples of which included preserving “public order and decency” and protecting the young and the weak from “exploitation and corruption.”Footnote ²¹⁴ Similarly, Hart qualified his endorsement of Mill, saying “there may be grounds justifying the legal coercion of the individual other than the prevention of harm to others,”Footnote ²¹⁵ although he stopped at naming what he had in mind.

Apparently, whether and when the law should enter the moral realm are questions over which even liberals may rightly differ.Footnote ²¹⁶ For example, in arguing “no person is morally required to make large sacrifices to sustain the life of another who has no right to demand them,” Judith Thomson distinguished between the Good Samaritan and what she called “the Minimally Decent Samaritan.”Footnote ²¹⁷ Citing the infamous Kitty Genovese murder case, she said that, while the 38 bystanders were not morally demanded to risk their lives to rush to save her, the fact that none bothered to call the police, as Minimally Decent Samaritanism “would call for doing at least that,” was “monstrous” in failing to meet a minimum standard of decency. Indeed, the case for legal intervention is particularly strong in the context of Good Samaritan law. Joel Feinberg, famous for his “offence principle,” made a similar argument. Considering the common law’s traditional aversion to imposing a duty to undertake even “easy rescues,” Feinberg wrote that “requiring people to help prevent harms is sometimes as reasonable a legal policy as preventing people, by threat of punishment, from actively causing harms.”Footnote ²¹⁸

5.3.2 Do Good Samaritan Laws Work in Reality?

Even for liberals, therefore, Good Samaritan law is able to pass muster on the basis of harm prevention and minimal decency. Its case is particularly strong concerning “easy recues,” as in the US, where the law merely requires one to seek help or alert the authority rather than personally assisting in an emergency situation. Yet, critics challenged whether the “law in action” reflects the “law on the books.”Footnote ²¹⁹ For example, Eugene Volokh explained why requiring people to report a crime may however create “anticooperative effects.”Footnote ²²⁰ First, the law would not matter to the “Good Samaritan” or the “Hopelessly Bad Samaritan”—the former will always do while the latter will not, with or without a law.Footnote ²²¹ Although the “Legally Swayable Good Samaritan” would be swayed by the law’s “coercive or normative effect,” the “Delayed or Passive Samaritan,” who, for many reasons, baulked at helping but was then overcome by remorse, would be deterred from coming forward later for fear of prosecution.Footnote ²²² Hence, Volokh concluded:

To many critics, the above helps explain the lax enforcement of easy-rescue laws particularly in the US since their existence in the 1960s. Daniel Yeager’s observation in his 1993 article in defence of Good Samaritan law shed some light on the “laws in action.” In a written reply to a questionnaire that he sent to 387 prosecutors in the eight states that required citizens to offer easy rescue or report serious crimes, namely Vermont, Rhode Island, Wisconsin, Minnesota, Florida, Massachusetts, Ohio, and Washington, none of the 139 respondents “could recall filling a complaint under the relevant statute.”Footnote ²²⁴ The lack of enforcement thus appeared common. “In Minnesota, there have been no known arrests or prosecutions under the provision since its inception in 1983, causing some to question its usefulness,” wrote a reporter in 1997.Footnote ²²⁵ In fact, the law was little known before the fatal 1997 accident that killed Princess Diana in France, which imposed a duty to rescue.Footnote ²²⁶ At the time, a Wisconsin reporter wrote that “[f]ew Wisconsin citizens … appear to have been prosecuted for violating a law now getting international attention because of the death of Princess Diana.”Footnote ²²⁷ Before the tragedy, even many French nationals were reportedly unaware of the existence of a duty to rescue.

Even in the few states that have enforced the law, the occasions were rare. For example, the Supreme Court of Vermont has interpreted Vermont’s statute only once.Footnote ²²⁸ In Wisconsin, where citizens are only required to assist the victim of a “crime,” the duty is so limited that a potential rescuer can be excused if (1) assistance may risk his own safety, (2) his other duties override that to the victim, or (3) others have already given help. As a result, the law was sparingly used. After the Wisconsin Court of Appeals affirmed it for the first time in 1996, it has since lain idle—a phenomenon commonly found in other states.Footnote ²²⁹ Similarly, a law that protects medical personnel from lawsuits after rendering emergency aid (which exists in all 50 states) has reportedly been largely redundant. More than two decades since the law was put in place, “there [was] no known case in the United States of a malpractice suit being brought against a doctor who responded to a roadside or other emergency outside his office.”Footnote ²³⁰ Hence, one might conclude that the law “had no effect on how physicians behave when they confront accident victims in need of emergency care.”Footnote ²³¹

Yet, to its supporters, the fact that few have been or will be prosecuted for flouting the duty to rescue “does not alone provide a valid reason against adopting duty to act laws, as many laws currently in place go unenforced except for the most egregious cases.”Footnote ²³² The value of the legal requirement for wearing seat belts, for example, lies in raising awareness rather than punishing people. Similarly, even a Good Samaritan law may not profoundly change a bystander’s behaviour; it is its long-term “normative” effect that counts.Footnote ²³³ According to studies, the law “would affect the way people perceive the legitimacy of the behavior in question.”Footnote ²³⁴ Even a mere law does not change people’s hearts; a publicized duty to help strangers “might enhance the perceived desirability of that behavior.”Footnote ²³⁵

What ultimately matters lies in social attitudes—a particular concern for China. In a society famous for its ill-treatment to those in peril, a Good Samaritan law may help boost “social morale” and “remove a tension between law and social belief and well might contribute to a suffusion of greater feelings of responsibility and trust across community strata and beyond the closer personal relationships.”Footnote ²³⁶ According to Christopher White, a legal regime that compensates altruistic rescuers for their consequential losses will enhance “social morale.” It will help “send a powerful message to others that such conduct is appreciated and valued,” thus giving “subtle motivation” for others to do the same when facing the same situation.Footnote ²³⁷

In this sense, law is not merely a set of formal rules, but “an expression of society’s values and concerns.”Footnote ²³⁸ As many have argued, it is a reflection of society’s ethos.Footnote ²³⁹ While the law has a rather limited role compared to other institutions that shape values and beliefs, such as families, schools, religion, and the media, it is “emblematic.”Footnote ²⁴⁰ Its biggest function lies in proclaiming the kind of behaviours it expects of society and producing decisions that “build ‘social capital’ or connections among citizens.”Footnote ²⁴¹ For example, moral condemnation against racial segregation in the landmark decision of Brown v. Board of Education Footnote ²⁴² not only helped boost a civil rights movement in American history, but also pointed out the direction in which society should go.Footnote ²⁴³

5.3.3 A “Chinese” Model of Good Samaritan Law?

Some observations can be drawn in light of overseas experience and discourse on Good Samaritan law. First, the European model may not suit China. As public trust in the Chinese legal system remains low, a punitive law can backfire.Footnote ²⁴⁴Peng Yu and its aftermath are reminders of a society that easily gets “hyped up” at a few “illogical” judgments. As a lawyer commented, until the court commands some public respect, imposing a legal duty to rescue may only do a disservice to promoting altruism.Footnote ²⁴⁵

Second, the law should be as “clear, specific, and detailed as possible to ensure its use.”Footnote ²⁴⁶ As discussed, despite being hailed as progress, Shenzhen’s Good Samaritan law is too vague and open-ended for people to put much faith in it. Amendment is needed for it to become a national model. A major problem lies in its loose drafting. Hence, details such as “how” and from “whom” a Good Samaritan can apply for assistance should be included. To alleviate the burden of proof on genuine victims who, for some reasons such as old age, are unable to provide evidence to prove their claims, the court should consider individual circumstances and apply the evidential rule on a case-by-case basis. After all, a certain level of trust in the judiciary is vital for the law to work.

Most importantly, the law should take into account China’s social realities. In this respect, North America’s protection-based approach—upon which Shenzhen’s law is modelled—seems to fit the bill. As discussed, except in Quebec and a few US states that imposed an affirmative duty to assist, the laws there predominantly concern giving legal immunity to Good Samaritans unless they were guilty of gross negligence. By focusing on protection rather than punishment, the law does not infringe personal liberties—a major concern for liberals.Footnote ²⁴⁷ Compensation is equally important, especially for those who sustained injuries or damages during the emergency rescue—a distinguishing feature of the law in some parts of Canada.Footnote ²⁴⁸

In criticizing America’s over-reliance on the fault-based tort system, White proposed a “public compensation fund” as well as a “rescue insurance regime.”Footnote ²⁴⁹ The former has already existed in California, which allows citizens to claim over injuries sustained while “preventing the commission of crimes against the person or property of others, or in apprehending criminals, or rescuing a person in immediate danger of injury or death as a result of fire, drowning, or other catastrophe.” In recognition of the public purposes that they served, the fund compensates each rescuer with up to US$10,000.Footnote ²⁵⁰

A similar regime exists in China through the work of Chinahaoren.cn, the country’s first voluntary organization to serve Good Samaritans (as noted above). The fund, devoted to offering legal aid and compensation to those facing charges after helping an elderly person, has reportedly received more than 40,000 yuan in donations and pledges of support from at least 60 lawyers six months into its operation.Footnote ²⁵¹ Efforts like that can be antidotes to China’s reputation as a nation of bystanders. It also shows that, in the long run, civil society will play a pivotal role in promoting Samaritanism and fostering a culture of solidarity.

In the longer term, government may also consider a “mandatory insurance regime.” White suggested, in the American context, that a mandatory clause be added to all new or renewed household insurance policies that “will compensate policyholders for any loss suffered while attempting to save another person from physical harm,” regardless of whether the act was performed in the insured premises or not.Footnote ²⁵² To cover the insurers’ increased costs, the additional coverage will be funded by a market-based premium increment. For low-income earners who cannot afford a household policy, they will be covered by a modest public fund administered by authorities currently overseeing government funds for crime victims.

A state-funded insurance scheme is a possible direction for China. In fact, a special insurance policy has already existed, at least in the capital. For example, after a state media report in 2013 that attributed an increasing number of extortion cases involving the elderly to inadequate medical care for them, the Beijing City government began working with a state-owned insurer to provide senior citizens with “an insurance policy covering accidents in public areas.”Footnote ²⁵³

Overall, a sustainable policy should be one that meets the goals of compensating injured rescuers and spreading “the costs for socially beneficial behavior across a large element of society.”Footnote ²⁵⁴ While the decision to assist in a circumstance depends on one’s moral judgment, “a system of compensating injured rescuers can gradually help shape the moral motivations of the community as a whole.”Footnote ²⁵⁵ It sends a powerful message that community does not “turn its back” on those who made a courageous decision to act.Footnote ²⁵⁶ “Compensating their efforts would promote feelings of community responsibility.”Footnote ²⁵⁷ On the contrary, compelling people to perform potentially risky acts against their will may create resentment and avoidance of the law. In the Chinese context, a system based on protection and compensation will be a good step in promoting “feelings of community responsibility.”

To ease concerns about personal safety and extortionist scams, Chinese authorities may encourage “easy rescues” as opposed to physical interventions. As discussed, even in those few US states that imposed a duty to rescue, their laws only require the rescuers to give “reasonable assistance” to a victim such as “obtaining or attempting aid from law enforcement or medical personnel.”Footnote ²⁵⁸ The law in the state of Washington, for example, only demands one to call the police for a crime victim.Footnote ²⁵⁹ Publicity on “easy rescues” will help send a positive message about helping others amid the widespread fear of extortion. It all comes down to human instincts.Footnote ²⁶⁰ As a Chinese Internet user said, even if he dared not help a stranger for fear of being extorted, he would “run to a public phone booth to call 120 (the emergency number in China) and ask for an ambulance.”Footnote ²⁶¹ According to a television documentary, today, a Good Samaritan “with Chinese characteristics” would first take photographs and/or secure witnesses before helping a stranger—an approach a one-time elderly victim praised.Footnote ²⁶² In this context, the promotion of “easy” and “Chinese-style” rescues may help rejuvenate the culture of altruism in China.

Above all, the law must be made known.Footnote ²⁶³ It demands efforts from the media as well as the government. As Zhou Chengxin, director of the Shenzhen Municipal Office of Legislative Affairs said, the media should help publicize this “innovative” legislation.Footnote ²⁶⁴ The “negative” publicity surrounding Peng Yu and its consequence speak volumes about the power the mass media yields in shaping public opinion and attitudes.Footnote ²⁶⁵ China’s Good Samaritan’s Dilemma will not change overnight. But media reports on voluntary efforts by, for example, Chinahaoren.cn and the “Stop Indifference, Pro Bono Lawyers Alliance” may help change public opinion over time.Footnote ²⁶⁶