Author
Dr Thitinant Tengaumnuay
Organisation/Institution
Chulalongkorn University, Faculty of Law
Country
THAILAND
Panel
Criminal Law
Title
Criminal Liability for Bad Samaritans: state responsibility or placing burden on innocent persons?
Abstract
A good samaritan is valued and encouraged in the present society where mercy is scarce. The concept of Bad Samaritan Laws, which requires a bystander to rescue a person in peril and imposes criminal liability for the omission of such duty, is reflected in section 374 of the Penal Code of the Kingdom of Thailand. Nevertheless, the enactment of a Bad Samaritan law seems inconsistent with liberalism and casts doubts on the role of the state in forcing altruism. The state has responsibilities to secure peace and order in the society, and Bad Samaritan law could be considered an instrument to assign a civilian to help the state with such responsibilities, in terms that a bystander might be in the best position to help a person in danger and prevent or reduce the harms caused to that person. The duty to help another person, however, should be merely a moral duty, which is distinct from a legal duty. The imposition of criminal liability for failure to rescue constitutes positive duties – compelling a person to act – while the usual criminal laws impose negative duties by prohibiting a particular act; the Bad Samaritan law provision indicates considerable impacts in the autonomy of an individual. This article explores both supporting rationales for and oppositions against Bad Samaritan laws, and balance the benefits of imposing duty to rescue and their negative impacts. Then, the article discusses the requirements under section 374 and suggests the appropriate amendment in the way that could serve the purpose of section 374 to encourage peace and order in the society and, at the same time, would not disproportionately infringe a person’s freedom or impose inappropriate burden on a civilian.
Biography
Thitinant Tina Tengaumnuay is currently a law lecturer at Chulalongkorn University. She received her LLB (1st class honour) from Chulalongkorn University, MJur from University of Oxford, LLM in environmental laws from New York University, and PhD in Law from University of Bristol. Her area of interest is criminal law, environmental law, and medical law.
