On the Chinese Law Prof Blog, Professor Donald C. Clarke analyzed three Chinese criminal convictions for intentional homicide and hypothesized that there is “a genuine social belief [in China] that deaths don’t just happen; someone needs to be held responsible.” This blog argues that his hypothesis is both analytically consistent with Chinese communitarian values and jurisprudentially consistent with Chinese law.
Intentional homicide in American law
Under the American legal system, to be guilty of intentional homicide, one must 1) purposely or knowingly 2) commit an act that 3) causes the 4) death of another human being. An omission may be an act if there is a duty to perform the omitted act. People are not generally under a duty to rescue other people who are in peril, but if there is a special relationship between the two people, then the law may impose a duty to rescue.
Three Chinese cases of intentional homicide
Professor Clarke based his hypothesis on three Chinese cases. In all three cases, the court convicted the defendants of intentional homicide. Under the American system, these three cases would have been handled differently than under the Chinese system. Two of them would almost certainly not have resulted in convictions for intentional homicide, and the third might have resulted in intentional homicide convictions but under a different legal theory than that used by the Chinese court.
Husband convicted of intentional homicide for his wife’s suicide
As reported in the Chinese news, a court convicted a man of intentional homicide because his wife committed suicide. (Read Google’s automatic translation. Alternatively, cut and paste the Chinese article into Dictionary.com’s translator to view a more thorough translation and to view the Chinese and English side-by-side.) During an intense argument between the wife and husband, the wife attempted to commit suicide by jumping into a sewage canal. The husband jumped in after her and tried to persuade her to get out. Failing to persuade her, he went to a relative’s house, explained the situation, and called the police. From the time he left the canal to the time the police arrived was over an hour, and the wife was dead. The court held that the husband had a special duty to the wife because they were married and that he breached that duty through his “desertion” (mo)—by leaving her in the canal and not preventing her death. (Interestingly, “mo” translates to either the verb “to desert” or to the adjectives “indifferent” or “aloof.” This linguistically connects the act of desertion with the reason for the desertion: the husband deserted his wife because he was indifferent to her plight.)
In the American system, the husband would not be guilty of intentional homicide. The husband was not the but-for cause of her death because she was intentionally trying to kill herself; the wife’s act of throwing herself in the canal and her act of staying in the water were the but-for cause. The worst crime the husband could be guilty of is criminally negligent homicide for his failure to provide enough assistance to his wife. Of course, this is only possible if he had a duty to prevent his wife from killing herself. Under American law, a special relationship can create a duty to rescue another person from peril, but it does not create a duty to prevent suicide. Therefore, it is unlikely that the husband would be convicted of any crime under American law.
Three men convicted of intentional homicide because they “saw death, but did nothing to assist”
The second case revolves around the drowning death of a thief trying to escape three men who caught the thief trying to steal a bicycle. (Cutting and pasting the following articles into Dictionary.com’s translator yields a better translation than Google’s translation. First article: in Chinese and Google’s translation. Second article: in Chinese and Google’s translation.) Three men discovered a 17-year-old thief trying to steal a bicycle belonging to one of the men, and they beat the thief with a wrench and rocks until he escaped. The men chased the boy, so he tried to evade them by swimming across a river. He was too tired, too hurt, or both to make it across, and he started to drown. Not only did the men not help him, but they stood and watched him to make sure that he actually drowned. The three men were convicted of intentional homicide. The prosecutor argued that in “normal” circumstances, people do not have a duty to help others that are in distress. These circumstances, however, required the three men to help. Specifically, the three men “cannot see death and do nothing,” buneng jian si bu jiu. In the second article about the case, the author states that all people’s lives have equal value, even a thief’s life, and when someone is in mortal danger, others have a duty (zeren) to help. (See also email in the ChinaLaw archives analyzing these cases, registration required, click “responsibility for death in Chinese criminal law” and then Mr. Malmgren’s email.)
In American law, it is possible that these three men would be convicted of intentional homicide, but the reasoning would be slightly different. An American court would likely hold that the three men had a duty to rescue the drowning thief because the three men created the dangerous situation. They intentionally omitted to help him and their omission was the but-for cause of his death. The difference between the Chinese legal rule and the American rule lies in the description of the duty. In the American system, the men have the duty to rescue because they created the dangerous situation. In the Chinese system, anyone who “sees death” has a duty to help. This blog elaborates below on the duty to help those in mortal danger.
A police officer convicted of intentional homicide for “causing” a deadly auto accident
In the third case, a police officer, Wang, was convicted of intentional homicide for “causing” a deadly motorcycle crash. This case is summarized in English in Frank K. Upham, Who Will Find the Defendant if He Stays with His Sheep? Justice in Rural China, 114 Yale L.J. 1675, 1683-84 (2005) (reviewing Zhu Suli, Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu [Sending Law to the Countryside: Research on China’s Basic-Level Judicial System] (2000)):
The decedent and two other young men had been drinking and were joyriding around midnight. They had run two consecutive police checkpoints, and when they approached the third, Wang fired two warning shots. After the motorcycle failed to stop, Wang fired again and hit one of the passengers (not the decedent) in the leg. The motorcycle continued for more than a kilometer until it collided with another vehicle and the decedent was killed. . . . The decedent had been the younger of two sons. The elder had drowned not a year earlier. The younger son’s death left their mother distraught, and she demanded Wang’s arrest. When the Public Security Bureau [the local police] refused to arrest him, she committed suicide in protest. That inflamed the local population, who were already distrustful of the police because of earlier instances of police misconduct and who, according to Zhu, demanded that someone in authority answer for such a death. The remaining family members then organized a sit-in by more than 200 people, which paralyzed local government operations.
The book review asserts that Wang was prosecuted because “social and moral norms were also involved” and that a “wrong had been done by the government” but does not specifically state what norms those were or precisely what action the public perceived as “wrong.”
In the American legal system, the police officer would not be guilty of intentional homicide for a number of reasons. First, the police officer was not the but-for cause. The driver should not have driven drunk and even if drunk, the driver should have stopped at the police check points. Having driven drunk and failed to stop at the police check points, the officer fired at the motorcycle. Even if the court found that the officer used excessive force, the shooting did not cause the motorcycle to crash. After the officer fired, and before the crash, the driver had plenty of time to stop driving the motorcycle while drunk. Second, if the court found that the police officer was the but-for cause, it is likely that the officer had the privilege to shoot at the motorcycle to protect public safety. Third, it is possible that the police officer had immunity from prosecution because he was performing his duties when the death occurred.
To explain these cases, there must be a duty of mutual assistance, and rules for causation must allow for more attenuated but-for causes.
The Chinese idiom “jian si bu jiu”
Professor Clarke’s hypothesis is that Chinese society believes that someone is always responsible for premature deaths. The existence of the Chinese idiom, “seeing death but not assisting,” (jian si bu jiu), is evidence that many people in China agree with him.
Jian si bu jiu is an idiom that means “seeing someone in mortal danger, but not assisting them.” It is idiomatic in that it is not simply a descriptive phrase, it also implies a normative ideal—a moral obligation to help the person in mortal danger. Using this idiom implies that the person who fails to assist is morally wrong. (See Mr. Olmgren’s analysis on ChinaLaw—link and instructions supra.) It is idiomatic in a second way in that it is often used to mean “seeing trouble, but not assisting.” This sense of the idiom is used in all sorts of situations to express the belief that everyone has a moral obligation to help each other.
Certainly, some segments of Chinese society consider jian si bu jiu to be a serious moral issue. This video purports to show a riot in Huzhou, Zhejiang Province because one or more police officers jian si bu jiu. It is not clear from the video if the police officer(s) saw someone in mortal danger or just someone in trouble, but the protestors were so angry with the police for not providing assistance that they tried to flip over a police van while the police were inside!
WARNING: the following video has some graphic violence and might be disturbing to some people. In this video, CCTV, the state owned television station lectures the public about the moral obligation to help others when they are in danger. It shows surveillance video from a bank where a thief viciously stabbed a woman. The bank employees did not help her and they were slow to call the police. During the seven to eight minutes she laid on the floor bleeding, no one helped her. In fact, she fell on a woman’s bag, and the other woman retrieved the bag and left the bank without helping the woman at all. The government was appalled and used CCTV to lecture people about the moral obligation to help others.
Jian si bu jiu is ingrained in Chinese culture enough that there is awith an entire chapter about jian si bu jiu.
Jian si bu jiu, as a moral value, is a specific version of the “mutual assistance” communitarian value
While it is certain some people in China believe that jian si bu jiu is a moral wrong, it does not prove that it is consistent with modern Chinese values. This section argues that a moral rule against jian si bu jiu is analytically consistent with the Chinese communitarian value system because it is a specific application of the “mutual assistance” value.
The Chinese Constitution does not have much legal effect, but it is an articulate and clear expression of Chinese communitarian values. The philosophy of Chinese Communism and Marxism focuses on economic issues such as the means of production and the misdeeds of the exploiting class, but there is an important corollary: socialism requires “mutual assistance.” Article 6 of the Constitution states that a socialist system is based on the principle of “from each according to his ability, to each according to his work.” Under the socialist system, if a person gives 100% of her ability, then the state is obligated to provide her with enough materials to survive. This is only possible if the underlying philosophy of society is based on mutual assistance—each person individually, and society collectively, has a duty to every other person and to the community.
The Constitution expresses the mutual assistance value in many places. The Preamble states, “Socialist relations of equality, unity and mutual assistance have been established among the [ethnic groups] and will continue to be strengthened.” Article 51 says that individual rights and freedoms “may not infringe upon the interests of the state, of society or of the collective.” Finally, article 54 dictates that all citizens have a duty to safeguard the “interests of the motherland.” All of these statements are analytically necessary to support the principle of “from each according to his ability, to each according to his work” and the mutual assistance value.
Everyone in China has the moral right to receive mutual assistance and the moral duty of to provide mutual assistance. If one person of extraordinary ability grows more rice than she needs, then she has the moral duty to share it with those that worked to the best of their ability but were unable to grow enough rice to survive. Said differently, mutual assistance dictates that the failing of one member of society burdens all members of society.
The mutual assistance value in the context of these cases says that when a premature death has occurred, all members of society had the moral duty to prevent the death. This suggests that Professor Clarke’s hypothesis is correct: when a premature death occurs, someone must be held responsible.
In fact, the idea that when a premature death occurs, someone must be held responsible, might not be isolated to communitarian value systems. If it is present in a wide variety of value systems, then it would be more likely to be found in the Chinese value system. The Paris riots in 2005 started when two teenagers died while trying to escape the police; and the Paris riots of 2007 started when two teenagers died after colliding with a police car. In both cases, the teenagers probably contributed more to their own deaths than the police officers contributed, but the rioters placed a significant amount of blame on the government for the deaths. Similarly, riots erupted in Australia in 2004 after a teenager died in a bizarre bicycle accident while being chased by police. Again, the teenager likely contributed the most to his death, but the community blamed the police. In Britain, when two babies in the same family die of SIDS (also called crib death or cot death), the parents are often convicted of a crime. People are convinced that two premature deaths in one family are so unlikely that someone must have caused the death. Recent research, however, suggests that this is not true. Even in societies that claim to be founded on liberalism, it seems that some people believe “that deaths don’t just happen; someone needs to be held responsible.” The evidence that many cultures may believe that deaths do not just happen, someone must be responsible, suggests that this belief probably exists in Chinese culture also.
The first two cases can be explained by applying mutual assistance as a legal duty
While it may be true that mutual assistance is a Chinese moral value, it does not prove that it if it was converted to a legal rule that it would be consistent with Chinese law. This section argues that mutual assistance, as a legal duty, is consistent with Chinese jurisprudence. “Consistent” means that applying mutual assistance as a legal duty would not require courts to alter radically other legal rules in the Chinese legal system.
The tentative definition of a moral assistance duty is “when a premature death might occur, all members of society have a legal duty to prevent that death.” It is impossible to prosecute all of society for a premature death, so applying mutual assistance as a legal duty would require courts to figure out who should be criminally responsible for the death. The following sections suggest that the mechanisms for determining who is criminal responsible for the death already exist in general jurisprudence.
The suicidal wife case is explained by a mutual assistance duty and the least-cost-avoider rule
There are two ways to explain why the husband was punished in the first case. The first explanation was relied on by the court: as her spouse, the husband had a special duty to save her. This explanation is problematic because the duty the court identifies is extraordinary. Many legal systems assign a special duty to spouses to rescue the other spouse when the spouse is in peril and needs help to escape the peril. That is not what happened in this case: the wife was in peril because she put herself in peril and she was not trying to escape that peril. The special duty to rescue does not include the duty to prevent suicide. If the husband was guilty of intentional homicide because he breached a special duty, then that special duty must include a duty to thwart suicide. Marriage in Chinese law is not so different from other legal systems to support the idea that the marriage duty is significantly greater than that of other legal systems.
A second, and alternative, explanation is to apply mutual assistance as a legal duty: everyone has a legal duty to prevent the death, but the husband’s responsibility is greater than all other person’s responsibility, so he should be held criminally responsible. Everyone has a duty to prevent the death, but some of the more likely candidates for criminal responsibility are: the husband for leaving her in the sewage canal; her parents for not teaching her that suicide is wrong; the designer of the sewage canal for not making it sufficiently suicide-resistant; the government official in charge of the canal for not providing sufficient rescue equipment; the husband’s swimming instructor for not training him to be a strong enough swimmer to rescue his wife against her will; and the wife’s friends for not helping her deal with her marital strife. The tentative definition of the mutual assistance duty above does not make it clear who, if anyone, should be criminally responsible for the death.
A variation of the least-cost-avoider rule from the law and economics view of negligence explains why the husband should be prosecuted instead of someone else. The least-cost-avoider rule is used when multiple parties could potentially avoid a type of accident. According to Law and Economics proponents, negligence laws have been largely based on the least-cost-avoider rule even before a nascent form of the rule was employed by Judge Learned Hand in , 159 F.2d 169 (2d Cir. 1947). In Carroll Towing, Judge Hand held that a defendant is negligent only if her cost to avoid an accident is less than the expect loss from an accident; expected loss is the chance that the accident might happen multiplied by the damage that would result from the accident. Judge Posner and other researchers have asserted that courts had been defining due care using the Hand Formula for centuries even though the courts never expressed the negligence rules using Judge Hand’s economic terms. See Richard A. Posner, Economic Analysis of Law 27, 179-233 (5th ed. 1998). But see Richard W. Wright, Hand, Posner, and the Myth of the “Hand Formula”, 4 Theoretical Inquiries in Law 145 (2003).
When more than one person could have avoided an accident, it is not clear how the Hand Formula should be applied. For example, if an accident with an expected loss of $100 could have been avoided if X had spent $20 or if Y had spent $30, then applying only the Hand Formula would suggest that both parties are under a duty to prevent the accident. However, only one of the parties needs to exercise due care for the accident to be avoided, and it is inefficient for both parties to have a duty of due care. In this type of situation—where more than one party can avoid the accident—the least-cost-avoider rule suggests that X should bear the liability because X can avoid the accident for the least cost.
The wife’s suicide could have been prevented by many people, so it is not clear where to assign the liability. Applying the least-cost-avoider rule suggests that the greatest duty should be assigned to the party that can avoid the death for the least cost. The husband, who was present at the canal when the wife threw herself in, has the highest burden to save her because he could help save her for the least cost because he was closest to her at the time of the death. A mutual assistance duty explains this case without having to alter radically the remainder of the Chinese legal system; therefore, a mutual assistance duty, in this case, is jurisprudentially consistent with Chinese law.
The drowned bicycle thief case is also explained by a mutual assistance duty and the least-cost-avoider rule
The second case also has two explanations. As described above, an American court could find the defendants guilty because they created a dangerous situation. By creating the dangerous situation, they had a legal duty to rescue the thief when he was drowning. By intentionally omitting to help, they caused his death, therefore it was intentional homicide.
This explanation does not comport with the explanation of the case, however. The court described the breach of the legal duty as “seeing death but not assisting,” jian si bu jiu. The court seemed to be holding that any person who saw the thief drowning would have a legal duty to assist. The court did not seem to hold that only those that created the dangerous situation would have a duty to rescue. The explanation of the case is much closer to the definition of the mutual assistance duty than to the special duty to rescue that arises when one creates a dangerous situation.
Again, if the court applied the mutual assistance duty to this case, all people had a duty to prevent the death. The least-cost-avoider rule again explains why the three men should be held criminally responsible instead of other people. The three men could have prevented the death in a number of ways: not chase the boy, save him when he was drowning, or get help when he was drowning. Besides the thief, no one else could have prevented the death for a lower cost than the three men could; therefore, the defendants have the highest burden to prevent his drowning. Like the first case, a mutual assistance duty explains this case without having to alter radically the remainder of the Chinese legal system; therefore, it also supports the assertion that a mutual assistance duty is jurisprudentially consistent with Chinese law.
The mutual assistance duty affects the but-for cause rule
The mutual assistance legal duty states that all people have a duty to prevent a premature death. A necessary corollary of this duty is that, when there is a premature death, all people caused the death in some way. When a premature death occurs, most people’s acts that “caused” the death will be highly attenuated. As stated above, under American law, the defendant’s act (or omission) must be the “but-for” cause of the death. If the mutual assistance duty exists, however, everyone’s acts are the but-for cause for every premature death. The case of the suicidal wife provides a good example. The wife’s death could have been prevented if any one of the following acts had not occurred: had the husband successfully saved her; had her parents successfully taught her that suicide was wrong; had the designer of the sewage canal made it impossible for her commit suicide (e.g., by making it too shallow to drown); or had the government provided adequate rescue equipment. Under a mutual assistance duty, all of these acts were a but-for cause of the premature death. As mentioned above, this means that anyone could potentially be prosecuted for intentional homicide when there is a premature death.
The police officer case is explained by a mutual assistance duty and by the rule that intentional acts are more culpable than negligent acts
The police officer case also supports the suggestion that a mutual assistance duty exists in Chinese law and that it is unnecessary to modify substantially other legal rules to apply the duty and explain the outcome of the case.
Again, there are two possible explanations for this case. Mr. Malmgren suggests that this case is best explained by “the often perceived need to placate the ‘wrath of the people’ (min fen).” He suggests that the police officer was convicted to prevent civil unrest rather than to punish him for an actual misdeed. The “wrath of the people” of the people refers to another Chinese idiom, “bu sha bu zu ping min fen”, which means something like “not even death is enough to satisfy the wrath of the people (but we should kill her anyway because it might work).” Some commentators believe, for example, that Zheng Xiaoyu’s execution (for corruption while the head of the Chinese food and drug administration) was “a killing necessary to placate the people [bu sha bu zu ping min fen].” Mr. Malmgren’s explanation for this case has appeal and may be largely true. As reported by Upham and Zhu, the legal system only prosecuted the police officer after the local population become so angry that they “paralyzed local government operations.” A fair interpretation of the events is that the wrath of the people was the only reason for the legal outcome.
On the other hand, it is possible to interpret the events a different way. It could be that the people were upset when the police officer was not prosecuted because they genuinely believed that he was responsible for the death of the motorcycle driver. And the legal result can be explained by applying a mutual assistance duty. Applying the mutual assistance duty requires the court to determine whom, if anyone, should be held criminally responsible for the premature death.
In the prior two cases, the least-cost-avoider rule explained why the particular defendants were punished, but the least-cost-avoider rule does not explain this case very well. A short list of potential defendants from the police officer case includes: whoever sold or served the driver alcohol (similar to a dram shop law); either of the two passengers on the motorcycle because they could have told the driver to stop, not drink and drive, or to drive more carefully; the driver of the other vehicle because maybe she could have been more careful; and the police offer that shot at the deceased because his intentional use of deadly force likely caused the driver to panic and drive more recklessly. Unlike the first two cases, it is not immediately clear which of these parties is the least-cost-avoider. In fact, the driver of the automobile might be the best candidate because they were present at the actual accident.
The police officer’s criminal responsibility is still greater than the other parties, however, because his intentional use of deadly force is more culpable than the merely negligent acts of the other parties. In American law, it is a common occurrence that the intentional acts of one actor mitigates the negligent acts of another actor. Three examples readily illustrate this. First, contributory negligence is not a valid defense to an intentional tort. Second, supervening intentional acts relieve liability for negligent acts. Finally, people are generally more culpable for intentional acts than for negligent acts. In the police officer case, the police officer’s intentional act (to use deadly force no less) is clearly more culpable than the apparently negligent acts of the other parties.
Again, applying a mutual assistance duty to this case, does not require a substantial modification of other legal rules to explain the outcome; therefore, it is more evidence that a mutual assistance duty is jurisprudentially consistent with Chinese law.
These cases suggest that Professor Clarke’s hypothesis is correct. In each case, a premature death occurred, and the defendants were convicted of intentional homicide. The convictions are difficult to explain using the legal rules for intentional homicide found in American law, but the results are explained well if Chinese law includes a mutual assistance legal duty.
My thanks go to Professor Henry H. Perritt, Jr. for his help.