The Good Samaritan in the Chinese Society: Morality vis-à-vis Law

Apathy has become a problem which endangers Chinese society, in part because those assisting the injured could be exposed to liability. With reference to both law and morality, the longstanding issue of “duty to rescue” is explored in the Chinese socio-legal context. It remains highly controversial whether it is legitimate or justifiable to impose a legal duty on “Good Samaritans” to assist people who are in perilous situations. Reference is also made to the legislative response of other major jurisdictions, which are examined and compared taking into account their social and legal specificities. A tentative conclusion is provided that China should take a pragmatic position: in between harsh civil law jurisdictions, and common law jurisdictions (which have traditionally been averse to making moral duties actionable legal claims). Arguably, Good Samaritan laws can provide a moral compass that directs the public appropriately in assisting people in distress. Law should not only reflect society’s moral values; law also has a role to play in reshaping morality in China’s rapidly changing society.


Introduction
In the New Testament, the Good Samaritan parable refers to a man who rescued a victim lying on roadside. Religious officials had ignored the man when they had walked past him. 1 Nowadays, Good Samaritan often denotes a selfless person who rescues another who has been harmed. As the world's second largest economy,

Peng v Xu-The Plausible Common Sense
In 2007, Peng escorted Xu-out of altruism-to the hospital, who had broken her leg, and was subsequently sued. Although neither party provided sufficient evidence, the judge ordered Peng to pay 40% of Xu's medical costs in the first instance. The case highlights the gap between controversial judicial decisionmaking and public perception. Under public pressure, the court adjusted its verdict, which resulted in the defendant paying 10% of the costs. In terms of defendant's liability, the court held that there was insufficient evidence to eliminate the possibility that the defendant had knocked down the plaintiff. The common sense principle that the Nanjing judge seems to be advocating is that only guilty parties help the injured.

Only the Guilty Rescues the Injured
The Nanjing judge has improperly relied on personal speculation to determine the defendant's culpability. 5 The judge held that Peng would not have helped Xu had he not been responsible for her fall. He came to this conclusion because, in his opinion, no one would help another person unless they felt guilty. At most, 'normal' people would have left Xu after escorting her to the hospital, instead of remaining until the surgical check had been completed. The Nanjing judge gave the following reasoning: According to sociological reasoning, when the plaintiff's family arrived, he could have stated the facts clearly, had the plaintiff's family taken her to the hospital, and then departed the scene. But the defendant did not make this choice; his actions are conspicuously at odds with reason. 6 The judge considers financial exchanges between strangers to run contrary to social norms; in the judge's logic, a defendant would only pay medical costs when they had a guilty conscience. Peng should not have paid the plaintiff's medical fee [RMB¥ 200 (£20)] without requesting a return. Based on his own common sense and his own life experiences, the Nanjing judge inferred that Peng was responsible for the plaintiff's fall. Thus the burden was on Peng to prove his innocence. It is inadequate for the current legal systems to protect Good Samaritans when the beneficiary's accusation is a fabrication. 7 In the reported cases to date, there has not been a single judgement in favour of the rescuer. 8 The overreliance on common sense by the Nanjing judge, demonstrates an indifference towards the rule of law, as well as being against progressive values. After all, a genuine commitment to fostering altruism requires a favourable legal response. 9 Essentially, the judgment encourages unsubstantiated claims for monetary damages by using common sense presumptions instead of evidence. This is a dangerous position to be in, and it may well lead to true offenders going unpunished. 10 The Defective Reasoning by Reversing the Burden of Proof This writer suggests that the judge's reasoning is flawed and illogical because he places the burden of proof on the defendant. However, it is well-established that the plaintiff should provide sufficient evidence to substantiate their claim, or rebut the defendant's counterclaim. 11 The Nanjing judge has reversed the burden of proof requiring the defendant to prove that he is not culpable. In tort, presumption of fault is only applied in certain circumstances stipulated by law, that is, liability shall be assumed unless the defendant rebuts the accusation. 12 Tort law does not indicate how Peng's case should be decided. In this case, the plaintiff should have had the burden of proving a prima facie case that the defendant was liable. 13 As it stands, the judicial system emboldens people to chance litigation to cover their medical costs. There are numerous precedents where rescuers have been framed by the beneficiary. Immediately after Xu v Peng, in a similar case, the defendant, Sundong Wu, was ordered by a local court to pay RMB¥70,000 (£7000) in compensation to an elderly couple based on Nanjing judge's reasoning. 14 Despite the lack of evidence, the court held that Wu would not have taken the couple to the hospital had he not been at fault. These cases show that injured parties can falsely accuse Good Samaritans as a means of recovering monetary damages. The above cases have diminished the public's trust in the judicial system which harms the sanctity of law. It has also had a profound effect on Chinese moral standards; people are increasingly hesitant to render assistance when strangers need help. 15

Chilling Effects on Good Samaritan
The ruling in Xu v Peng not only causes the judicial system to lose credibility but also constitutes a heavy blow to social trust and the principle of moral reciprocity. 16 Much worse, the case has had a particularly negative impact on attitudes towards civic duties. The defective reasoning underpinning the verdict in Xu v Peng has led to a chilling effect on the willingness of people to act as a Good Samaritan. A dilemma frequently arises when passers-by attempt to assist people in need. 17 Rescuing strangers can be risky. Most passers-by are increasingly concerned that victims can extort money from them if they try to help. As a result, passers-by use these legal rulings to justify ignoring victims who are in need of assistance. This has led to a decline in Chinese moral standards. The chilling effect is reflected from some online surveys by various institutions below.

Surveyors
Willing to help (%) The majority of participants would ignore the victim and leave straight away, while only a small proportion of participants would be willing to help without hesitation. The primary excuse for not helping is a fear of legal action. The survey may not identify apathy as the sole reason for such behaviour, but may also show that the participants do not trust the Chinese judicial system to give fair judgments. 18 Nonetheless selfishness and apathy has resulted in the tragic death of double hit-and-run victim. On 13 October 2011, Yue Wang, a 2-year old child was run over by two trucks during the course of 17 min in Guangdong; 18 people passed by the fatally-injured child. 19 The tragedy symbolises the country's moral decline 20 : apathy is antithetical to a harmonious society. Wang's death has highlighted that China is a conflicted nation. China predominately prides itself on huge economic success, but the Wang accident shows that the nation's civic consciousness and moral awareness to be lacking. It is imperative that people look into the reasons behind this societal apathy.

The In-depth Rationale Behind the Irregular Social Phenomenon
Passers-by tend to take a calculated approach when faced with the moral decision of helping a stranger. 21 It should be a simplest case of doing the right thing; however decisions to rescue is now reduced to cost-benefit analysis, and rational self-interest. It is not accurate to say that Chinese citizens are intrinsically selfish. There are a myriad of factors that contribute to the current state of affairs.

The Moral Vacuum
Contemporary Chinese society lacks a coherent moral narrative, and the country is becoming increasingly indifferent with rampant economic growth. As the second largest economy, China is undergoing rapid transformation but without clear sense of direction. In such a transforming society, there has been a shift from the sombreness of communism to consumerist hedonism. 22 It is argued that the country has got lost in a deadly moral vacuum. 23 The Cultural Revolution has destroyed Chinese traditional moral standards. Nearly all of the traditional values were discarded to make way for Mao, the former president of China. 24 The lack of a wellestablished value system is deepening China's moral crisis. 25 The materialistic pursuit of fortune has replaced traditional altruism and civility, and, as yet, there is no clear alternative. The Chinese Communist Party (CCP) did advocate communal altruism, exemplified by the slogan of ''Serve the People''. 26 It remains dubious as to whether they really did ''serve the people''. In the early 1980s, the slogan was replaced by a new mantra of ''Pursue Wealth'', at any expense. The primacy of materialism and pursuit of self-interest can result in extreme antisocial behaviour. This new campaign has brought about accelerated economic development during the last four decades, which has nevertheless created a moral vacuum. Civic responsibility decreases with each successive generation. The campaign celebrates material wealth without limitation, for example ''To get rich is glorious''. 27 There is a moral void emerging from China's materialist approach.
Is the rapid March to materialism to blame for the nation's moral bankruptcy? Notably, it is Marxism with materialism at its theoretical core. 28 People in China do not expect leniency, justice or even rationality from those with power. This perception is related to the prevailing unwillingness to assist others in perilous situations. It can be argued that China has imported free market economics from the West without importing the corresponding ethics. With Chinese traditional moral principles diminishing, a moral vacuum has come into being. Such a vacuum cannot be filled by the free market economics alone. Wealth maximisation and the free market economic model needs a strong moral system to ensure that injustices do not materialise.

Guanxi (Network of Personal Relationships)
A proverb in China says that ''Each person should sweep the snow on his own doorsteps and should not fret about that on his neighbours''. Chinese people are so concerned with being part of a network of personal relationships that this is all that matters, and strangers are supposed to ''mind their own business''. 29 This way of thinking is based on the duty to protect one's family and those within guanxi, which may help to explain the uniquely egocentric social structures in Chinese society. 30 It is noted that: Society is made up of many circles each comprising a ''self,'' whose connections in turn form a web of personal relations. One accorded a certain degree of treatment to another commensurate with their relationship, the socalled ''difference between those who are close and those who are distant is created. 31 The last sentence of the above resonates with that of guanxi, 32 which the Chinese rely to ''get things done''. 33 Seen as ''super law'' but with little regard to law, guanxi is merely ''a strategically constructed network of personal connections'' based on ''instrumental exchanges of favours. 34 This inherently divides people into those within guanxi and those beyond the network of interpersonal relations. In this vein, guanxi constrains Chinese society by fixing the social order, within which people pursue their instrumental ends reciprocally. 35 These inherent norms play an indispensable role in maintaining moral obligations. By the same token, outsiders do not share any of the privileges which arise out of guanxi. This may be one of the reasons why Chinese people treat strangers with seeming indifference. It is the The Good Samaritan in the Chinese Society: Morality… 141 absence of guanxi that is used to justify inaction when injured strangers need help. As Smith observed in 1894, ''Unwillingness to help others is a trait that runs through Chinese social relations in multi-fold manifestations''. 36 This observation, to some extent, reinforces the suggestion that China needs to cultivate trust beyond guanxi. Urbanisation and largescale migration has altered the way in which Chinese people interact with others. Urban citizens rarely have strong connections anymore, whereas, in the past, rural residents had a strong sense of community. 37 In small rural communities people needed to rely on each other to survive, while society in the twenty-first century relies on self-perseverance. 38 Guanxi could be used as a positive influence to unify society, but does not change the fundamental ecology of the modern society. 39 Due to the rapid transformation resulting from the increasing urbanisation, the conventional guanxi has steadily declined. Hundreds of millions of peasants are migrating to cities; these cities are turning into communities of strangers. The moral ideal of having harmonious communities does not fit the new social, legal, and cultural landscape. 40 The previous relationship could be characterised by intimacy, trust and interdependence; while urban society is characterised by estrangement, distrust and independence. 41 Urbanisation, and the mixing of communities (catalysed by migration), not only reinforces the concept of guanxi, but also the reluctance of communities to engage with strangers outside of their immediate social order.

The Unfair Society
The fairer a society, the greater the social cohesion amongst the populace. The large migration with China's unprecedented urbanisation results in hierarchies in social and legal status, which holds particularly true between urban residents and rural peasants. China's income inequality has grown rapidly in the last four decades, which can be partly attributed to Chinese policies favouring urban residents over rural peasants. 42 The Chinese have transformed institutions, but they do not provide equal access to opportunities for the public. Rent-seeking for personal gains remains prevalent at various levels of society, which challenges the Chinese Community Party's (CCP) legitimacy. 43 Conversely, capitalism is based on the idea that competition between individuals, with selfish goals, will maximise the common good. 44 On the one hand, the status quo stimulates strong incentives to pursue one's own fortune, while simultaneously helping to generate huge societal wealth. On the other hand, fierce competition for access to wealth increases people's sense of indifference. This is due largely to the doctrine of ''exchange of favours'', which is not applicable among strangers. The poor in society long for fairness while most rich people have sought wealth by improper or even unlawful means.
The accumulation of wealth is correlated with a vastly expanding wealth gap. The Gini coefficient, commonly used to measure inequality, has already widened massively. 45 In fact, China has the most extreme and widening income inequality out of any industrialised nation. More problematically, migrant workers are not eligible to receive local benefits because of the infamous dualism of the residential system. Simply, they cannot share equally in the enormous economic success due to the lack of hukou. 46 Citizenship is typically conceived of as membership in a political community, carrying with it certain rights and obligations. 47 In substance, the migrant workers become second-class citizens in that they have to spend most of their savings on their children's education, medical services and even for fairer employment opportunities. 48 The ideology of communism has more or less collapsed in China, even though, paradoxically, it is perceived to be a dominate force among the people. 49 The public's apathy is plausibly reinforced by the perception that they would be much better off if they had equal access to opportunities. The case of Xu v Peng encapsulates the epitome of the issue: the case creates legal disparity between the affluent and the less privileged. In essence, the judgment was a rule by law, instead of upholding the rule of law. This is inherently unfair. 50 It is difficult to provide an exhaustive list of the factors that contribute to people's apathy and indifference in contemporary Chinese society. For instance, overwhelming levels of corruption does not encourage the public to maintain high moral standards. Corruption weakens the government's moral authority. By the same token, these moral narratives are not openly acknowledged because the rule-makers' legitimacy is not well-justified. 51 Injustice resulting from officialdom can encourage citizens to use immoral means for self-gain. 52 Political and legal corruption deters the public from offering their kindness to other people, especially to strangers. As a consequence, peoples are driven by materialism-resentment permeates and endangers the moral legitimacy of the whole society. 53 The Good Samaritan Law: A Comparative Perspective Law can be conceptualised as coerced compliance, representing the bottom line; a person can be punished legitimately for failing to meet this minimum standard. 54 One school of thought held by Max Weber is that law should be purely ''formalrational'' unified by legal logic into a consistent whole, and free from the influence of external moral values. 55 This seems to imply a clear dichotomy between legal and moral duties. It seems that juxtaposing law and morality in this way produces too narrow a view of rationality. 56 The issues of law and morality which relate to the Good Samaritan have long been the subject of legislation in the West, where legal systems address them in diverging ways. 57 Civil law countries have placed a legal obligation on passers-by. Controversial as it is, the law in these countries has created a legal duty to rescue; the law also provides legal protection to Good Samaritans to avoid unjust results. 58 In contrast, common law jurisdictions have been traditionally averse to imposing a legal duty to rescue. 59 This can be attributed to the fact that individualism is valued to a greater extent in common law jurisdictions. 60 China's legal system seems unable to respond these issues. And, given China's rapidly changing society, it may be necessary to introduce a legal duty to rescue by way of a Good Samaritan law.

Good Samaritan in Civil Law Jurisdictions
In the civil law jurisdictions, the duty to rescue is normally considered to be legitimate. 61 Civil law countries have tended to either create a duty to rescue, which punishes those who fail to render assistance, or introduce legislation to shield rescuers from liability. 62 In France, the statute governing the duty to rescue imposes criminal and civil liability when a passer-by fails to render necessary help, and there is no risk to himself or a third party. 63 It provides that: A person must assist anyone in jeopardy, unless there is reasonable evidence that it would cause danger to himself or a third party. Abstaining from rendering assistance constitutes an offence, which may result in up to 5 years imprisonment and a fine of up to €75,000. 64 The duty-to-rescue provision treats the offence as pure omission. 65 People that witness a person in peril and do not render assistance can be arrested for inaction. The French legal philosophy is that a witness is considered to be an integral participant to the crime, even in the case of nonfeasance. 66 French courts determine damages by assessing what harm could have been avoided, had a reasonable rescuer rendered assistance. 67 Similarly in Germany, under the clause of ''Failure to Render Assistance'': whoever does not render assistance shall be punished with up to 1 year's imprisonment or a fine, when he could have helped without imposing risk to himself or third parties. 68 In contrast, common law jurisdictions do not transform moral duties into legal duties, where moral acts are not legally enforced in principle. 69

Good Samaritan in Common Law Jurisdictions
The common law position holds that the Good Samaritan predicament is purely one of individual empathy, not one of legislative importance. 70 For instance, the UK does not have a duty-to-rescue statute. 71 In Dorset Yacht Company v Home Office, Lord Reid expounded the common duty: When a person has done nothing to put himself in any relationship with another person in distress or with his property mere accidental propinquity does not require him to go to that person's assistance. There may be a moral duty to do so, but it is not practicable to make it a legal duty. 72 Confirming this stance, Lord Nicholls held in Stovin v Wise that: ''The recognised legal position is that the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him.'' 73 Inaction does not incur liability per se, unless the parties are either within contractual or tortious relationships, or other recognised circumstances which give rise to a duty to act. 74 There is a general absence of a Good Samaritan law in the US. To supersede the general common law absence of a duty to rescue, a minority of states have created a legal duty to rescue another in an emergency. 75 For instance, the Duty to Aid the Endangered Act enacted by Vermont in 1967 provides that: A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others. 76 Compared with the French legislation, the common law approaches to Good Samaritans appears to be lenient. Regardless of the statutes in place, they are hardly enforced, and the practical effect remains minimal. 77 As Steward observed, the statutes imposing a duty to rescue in the US ''are examples of law easily made but not enforced with any degree of regularity or consistency.'' 78 Such an approach seems to suggest that Good Samaritan laws are largely of symbolic importance in the US. 79  designed to encourage people to do good within the society. 80 A Good Samaritan is generally shielded from liability, unless his attempt to rescue another is considered to be grossly negligent. 81 With reasonable care and skill, rescuers do not need to worry about legal action being taken against them.

The Feasibility of Creating a Good Samaritan Law in China: The Shenzhen Provision
China's legal system can be characterised as a combination of moralism and law. As one of the most advanced Special Economic Zones in China, Shenzhen has introduced its regional Good Samaritan law, i.e. the Shenzhen Provision on Good Samaritan, which became effective on 1 August 2013. 82 The Shenzhen Provision provides substantial support to rescuers who render emergency assistance in good faith. 83 The plaintiff shall bear the burden of proving that his injury has been caused by the Good Samaritan. 84 Specifically, the plaintiff needs to present a prima facie case; if the plaintiff cannot do so he will be subject to administrative or even criminal penalties where a case has been fabricated mala fide. 85 Good Samaritans have the right to require apologies and/or compensation, restoration of reputation and other damages if the plaintiff violates Article 6 of the Provision. 86 Furthermore, witnesses will be rewarded by relevant authorities if they give a testimony on behalf of the Good Samaritan. 87 Last but not least, Good Samaritans will receive legal advice to ensure that they are adequately represented. 88 The Shenzhen Provision provides various levels of immunity to prevent rescuers from incurring liability. It is designed to incentivise people to help others by shielding them from lawsuits. This has the potential to reshape attitudes towards morality in China. 89 The legislative intent behind the Shenzhen Provision perfectly accords with Honoré's thoughts, that the law should not only reflect public opinion but also actively encourage better behaviour. 90 He further argues that if the law does not encourage people to rescue others, it is sure to discourage it. If it does not compensate, it will indirectly penalise. If the rescuer who suffers injury or incurs expense goes without compensation, the law, so far as it influences conduct at all, is discouraging rescue. 91 The Shenzhen Provision does not intend to penalise passersby for failure to render assistance. Rather, it attempts to impose legal liability on the rescued to deter disingenuous, fabricated cases. The media, under the current social setting, sends the message that Good Samaritans are likely to be extorted by the injured. Given the politics of the situation, regional law addresses these serious concerns innovatively through incentivising the public to rescue those in distress, rather than compelling them to do so. Significantly, the Shenzhen Provision requires plaintiffs to provide adequate evidence to prove that the defendant is at fault. It also provides a financial incentive to render assistance by allowing Good Samaritans to claim compensation for their losses borne out of the rescue. This measure would allay the fears of those who hesitate to help because of potential financial losses. Finally, fear of retaliation accounts for some failures to intervene. 92 The Shenzhen Provision responds by offering financial rewards to those who speak out. This will improve evidential procedures, and help to ensure substantive justice at trials.
Although law may not fully enforce morals, it does serve as a moral compass. 93 The Shenzhen Provision implies that Good Samaritans will be appreciated, which encourages people to render timely assistance. It sends a clear message that Good Samaritans will not be subject to unexpected risks. To an extent, it strikes a fair balance. The Shenzhen Provision is also less punitive and coercive than several major civil law jurisdictions, such as Germany and France. Chinese traditional philosophy and Confucianism holds that one should be a Good Samaritan purely because of one's own justice and righteousness. 94 In terms of jurisprudence, the essence of the Shenzhen Provision is consistent with China's Criminal Law: an individual is not punished for inaction to render assistance. The support-oriented approach, instead of punishment, is conducive to preserving personal liberty and fostering the culture of altruism. 95 Regional law will hopefully strengthen the moral imperative to rescue. However, the Shenzhen Provision suffers from a lack of clarity, and detail, which may ultimately hinder its efficiency and enforceability. On the other hand, this flexibility may prove to be useful when dealing with complex issues. The People's Court will benefit from the flexibility to exercise their discretion, and can make their decisions on an ad hoc basis, depending on the facts before them.

The Imposition of a Legal Duty to Rescue: The Balance Between Carrots and Sticks
A middle ground should be sought between unfettered liability and no liability. 96 Individualism represents an underlying social value which is embedded in the common law. 97 Another explanation is that the absence of a legal duty to rescue is due largely to the common law's inherent ability to adapt to the changing needs of society. 98 In contemporary Chinese society, it is time to create a legal duty to rescue that encourages Good Samaritans to intervene, in turn promoting better moral standards. As Lipkin observed: A person has a legal duty to rescue another when he encounters or witnesses that person in an emergency situation, in danger of grave physical harm or death, and the rescuer has the ability to extenuate the victim from the dangerous circumstances without endangering himself or third parties. 99 Given China's current moral orthodoxy, it would be more practical for the proposed legislation to strike a balance between harsh civil law and common law positions. By placing civic duties on a legislative footing, the proposed law shows the public's disapproval for bad Samaritanism. 100 There are predictable ways in which morality can be placed within the legislative framework, which can be identified without much knowledge of a country's cultural norms or sociological features. 101 It is sufficient to use fines or the threat of civil liability. Penalties need not always be imposed and occasional judgments against non-rescuers may, like a rule of partial liability, be severe enough to stimulate greater assistance in emergency situations. 102 beneficial for China to learn from other countries' experiences before having its own national Good Samaritan Law. It is sensible to look into historical classical debates on law and morality. 103 This enquiry may reveal the pros and cons of the matter, thereby helping us to ascertain whether a Good Samaritan Law would be a panacea for the moral challenges faced by contemporary Chinese society.

The Debate Against Codifying Morality into Law
It is argued that there is in fact a distinction between law and morality. McFarland has observed that it is wrong to use law to enforce morality in order to coerce people into being benevolent. 104 It is further stated that law represents the lowest denominator and it is morality that truly establishes higher behavioural standards. 105 Sir John Wolfenden held that: ''there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business.'' 106 Assisting people in distress is conventionally considered a moral duty, which should not be enforced in the judicial realm. 107 People should enjoy a private moral sphere that is free from forcible human interference. 108 Using law to settle purely moral matters may lessen morality's importance as a distinct field of inquiry. It could risk depriving individuals of their liberty and personal autonomy. 109 Imposing a duty to rescue can be viewed as implicitly rejecting the primacy of individual rights. 110 The law's coercive interference in people's lives might even have a counterproductive impact, thus undermining the potentially transformative function of such a law. 111 Alternatively, society may choose to explore the deep-rooted reasons as to why passers-by seem to lack compassion, and how best to incentivise people to render assistance in emergency situations. 112 In addition, coercive law may have unexpected side effects. 113 The case of Xu v Peng shows the low quality of the Nanjing judge's reasoning, which epitomises the Chinese juridical status quo. It seems unfair to compel passers-by to render assistance when, as things stand, their legal rights are not adequately protected. Imposing a legal duty to rescue in such circumstances will only hinder altruism. 114 The Debate for Legitimising Good Samaritans Hard law and moral norms often interact with each other in a symbiotic manner. 115 Hart has observed that: ''there may be grounds justifying the legal coercion of the individual other than the prevention of harm to others.'' 116 In an endorsement of Hart, Devlin argued that: 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. 117 Feinberg even suggested 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.'' 118 Law and morality can complement each other. Coercing an individual to abide by the law may make him more moral. 119 However this will only be the case when law and morality are not in conflict, but are instead consistent both in form and substance. In essence, Good Samaritan legalisation can be justified by harm prevention and the aim of achieving a minimum level of decency. 120 Regardless of the above mentioned concerns, side-effects are an inevitable cost when using law to coerce people to rescue the injured. 121 Despite restricting individual liberties, a legal duty to rescue would be desirable as it furthers the public good, which is superior to the rights of particular persons. 122 After all, personal liberty and altruism are not always antagonistic to one another, which is a prevalent misconception. 123 Changing social conditions leads to the recognition of new duties, 124 which is reinforced by China's unprecedented urban transformation. Precedents often go against the Good Samaritan, which makes people reluctant to help for fear of legal consequences. Since a Good Samaritan is always left in a vulnerable position, law that protects rescuers would serve a useful social purpose, indirectly filling the moral vacuum and increasing people's awareness. 125 With specific regard to the case of Yue Wang, where the passers-by's behaviour has failed to meet a minimum standard of decency, legal intervention in the moral realm appears particularly welljustified. 126 Another point worthy of note is that the value of law lies primarily in enhancing awareness rather than punishing people. 127 The core value of law is not that it reflects mainstream morals, but rather that it actively advocates better behaviour. The long-term goal of achieving incremental normative progression counts for more than any immediate effects. 128 In the above case of Yue Wang, the bystander refused to render even minimal help in a dire emergency, and went unpunished. 129 There are no legal grounds to compel their assistance. Admittedly, a Good Samaritan law may be insufficient to improve the public's moral standard, but may instead lead to imperceptible changes in people's behaviour. 130 More subtly, law may contribute to building trust beyond guanxi. 131 Furthermore, civil society will play an increasingly pivotal role in fostering a culture for Good Samaritans,132 in which the proposed Good Samaritan laws will increase the likelihood of people offering assistance when needed. 133

Addressing Current Challenges
Few people would risk being a Good Samaritan unless their own rights were adequately protected. Even if a Good Samaritan law were in place, it is still uncertain as to whether law can grant full immunity to an innocent rescuer. This is largely because the dispute often concerns whether an individual has rescued the injured party or caused the injury in the first place. The underlying problem thus turns on fraud; it all comes down to the availability of facts and the credibility of the witness. 134 An imperfect solution would be to find a witness before assisting a stranger. 135 In order to provide a strong incentive, however, it is argued that a system of rewards would encourage potential benefactors to render necessary assistance. Aside from the above proposals, it is worth exploring more far-reaching resolutions which address the core of the issues.

Create the ''Evidence of Being Innocent''
Justice is the primary value of the evidence system. 136 The case study of Xu v Peng highlights an irrational judgment, contrary to justice, where the Good Samaritan bears the burden of proving their innocence. They will be held liable unless they adduce evidence to discharge the burden. 137 Securing evidence would minimise the chances of a disingenuous claim succeeding at trial. Potential Good Samaritans could canvass for witnesses to establish a priori that they are not responsible for the injury of an injured person. 138 In August 2011, an 81-year-old woman accused a bus driver of knocking her down. The driver was ultimately exonerated by video footage from a camera installed on the bus itself. 139 The video surveillance footage showed that a Pedi-cab hit her and the bus driver was there to help. 140 Gathering as much evidence as possible, via increased surveillance, would help to resolve some of the fundamental issues. From the above survey Table, it appears that people would only consider rescuing an injured person provided that they could be protect from mala fide litigation. However, the government's improper intervention can result in counterproductive effect. In September 2011, the Chinese Ministry of Health issued the Technical Guidelines on Intervention for Good Samaritans. A commentator argued that the government should ''save morality, perfect the law, and promote social justice and fairness.'' 141 On the one hand, the Guidelines is considered as a warning to potential rescuers. On the other hand, it may, in fact, encourage the court to demand that the helper prove his innocence. In this regard, it is inappropriate for public authorities to instruct the public on whether to render assistance. People who act altruistically are not consciously calculating the benefit that they are gaining for themselves when they try to help others. 142 Ideally, it is an instinctive and natural response to help another human being who is suffering. It is now governed by legislation, which, in some ways, encourages the public to act on the basis of costbenefit analysis. After all, the self-preservation measure only scratches the surface of the problem, which is far from rooting out potential extortion.

The Reward-Oriented Model
Altruists may be motivated by a willingness to do the right thing, or by instrumentalist concerns. Helping others in need can provide people with the immediate gratification of emotional fulfilment, material pleasure and selfrealisation. 143 As Landes and Posner observed: ''a rescuer may be motivated by altruism or by the possibility of being regarded as a hero, and that legal inducements can impede this motivation.'' 144 Monroe also noted that: ''We do good because that is what makes us human, fully and richly human, and not just greedy and graspingly self-centred.'' 145 In this scenario, a rescuer always declines a reward and enjoy pure hero status. 146 This school of thought supports the notion that incentivising people with rewards distorts social and moral values. 147 Arguably, it is equally common for legislators to accomplish their goals through creating a fear of sanctions and rewarding good behaviour. 148 Rewards can serve as an instrument for encouraging potential Good Samaritans to render timely assistance. In order to have substantive effect, the legal system should encourage socially positive behaviour. Rewards are powerful external motivators for altruistic acts, given that China's social security network is yet to be established. With particular regard to China's current overwhelming apathy and indifference, the absence of carrots militates against strangers helping each other. 149 Rewarding Good Samaritans would reinforce such motivations by providing a bonus, for example, a financial incentive. Promoting intervention would be justified because it is in the public interest: ensuring that rescues indeed take place. 150

Upgrade the Social Safety Net
Neither the reward nor the self-preservation measures can address the challenge fundamentally, if people do not feel secured in terms of their basic social welfare. The fraudulent litigation culture has, in part, been created by a lack of established social welfare net in China, where the injured party cannot afford medical treatment. China's social security development is unbalanced, and the coverage rate of some basic social security systems is still low. It is estimated by China's National Bureau of Statistics that the government can only fund 1.6% of 200 million people over the age of 60 in need of care. This coverage is far below the World Bank's Standard of 8%. 151 The inability to pay for expensive medical treatment means that many of the injured lack any access to medical services. 152 In the absence of adequate social safety net, people at the bottom of the society are struggling to get by or just barely making it. Desperation forces some injured people to use whatever means to protect themselves. They are likely to accuse whoever they can get their hands on. 153 It is no wonder that there have been so many cases involving extortion. Undoubtedly, most injured victims don't intend to extort money from their rescuers, but are compelled to falsify accusations against their conscience. The immorality reflects a defective social security system. Certain governmental initiatives could encourage people to come to others' help, such as establishing a Traffic Accident Relief Fund to help people who cannot afford to pay their medical bills. Affordable medical care would indeed substantially help to reduce such social ills: the so-called ''returning kindness with ingratitude''. 154 In the longer run, China needs a more functional social safety net that can relieve the injured person's concerns about the medical bill, which is also conducive to minimise the incentives to make false accusations. The government should speed up perfecting the social security system to protect every citizen's basic welfare, so as to pave the way for rebuilding the moral fabric of society. 155

A Suggested Guideline for Good Samaritan Law in China
Based on the above analysis, the remedies provided to rescuers is protection normally from civil suit by the person assisted. First, the Good Samaritan Law shall protect those rescuers who act in good faith. It is a reasonable behaviour that falls within the ambit of the proposed law. The concept is generally defined to be a behaviour that a hypothetical person with similar qualification would reasonably would consider appropriate to do in a similar circumstance. 156 In order to interpret reasonableness, the criterion is beyond the behaviour per se in a particular scenario, which also includes whether it is compatible with the overall societal expectation. Such a legislative intent is well embodied in both common law and civil law systems. 157 In case of gross negligence but with bona fide, leniency should be considered to mitigate potential penalty against the rescuer. Second, the rescuer shall be subject to primarily civil liability if necessary, whereas criminal liability can only be triggered in an extreme mala fide case. Put differently, the criminal liability should play a deterrent role to a greater extent, since it may discourage potential rescuers. Last but not least, the law should serve primarily as a leverage between action and inaction in the transitional period of China's transformation. As discussed under the sub-heading 4 of Part III, the middle-ground position should lie between the French and British models. The legislative intent is to be manifested with the support of other complementing mechanisms, such as the reward-oriented model and self-preservation measures. The recent Shanghai Good Samaritan Law reflects a prudent approach. The new law encourages people to become ''Good Samaritans'' by granting legal immunity even if their efforts result in harm. A precondition is that citizens should first call Emergency Hotline 120, and then carry out first aid but only under the guidance of emergency operators. 158 Equivalently, Beijing Good Samaritan Law provides that citizens shall provide first aid, but strongly encourage calling the Emergency Hotline 120 in the first instance. 159 Both laws provide effective flexibility with an aim to relieve citizens' fear of liability, and incentivise them to behave altruistically. After all, China's legal system can be characterised as a combination of moralism and law. 160 It is bound to be a longstanding systematic mission to cultivate spirit of ''Good Samaritan''. Any hasty premature legal reform may produce counterproductive effect.

Conclusion
The interpersonal trust crisis could deteriorate without legal support. China's dramatic changes in social conditions legitimates aligning legal obligations with moral expectations. It is the right time to introduce a national Good Samaritan law to counteract the moral apathy which is so prevalent in China. A duty to rescue is generally incompatible with individualistic values, which, as discussed, is at the heart of the common law. Collectivism, rather than individualism, is preferable in China. The social and legal context in China makes it possible to introduce a civil law version of a Good Samaritan law. It is thus imperative for a moral duty to be embodied in the national law, while protecting people from being falsely accused who assist others in emergency situations. New legislation should protect rescuers from legal liability for the harm suffered by a rescued victim. The primary legislative intent should be to shield the innocent from extortion. The new law can achieve this by penalising those who make false accusations, and by rewarding witnesses who provide reliable testimonies. In the long run, having a legally enforceable duty will help to deter such false accusations. Furthermore, it is vital to address the deep-rooted and systematic issues which underscore Good Samaritan laws. This includes addressing institutional perspectives. China should foster a civil society, as well as promoting a reliable judiciary and effective surveillance system, in order to respond to the rapidly transforming society. Until the public's trust is restored in the judicial system, there is a long way to go before the proposed Good Samaritan law can have a real transformative effect on the public's morality.
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