Feldbrugge - Good and Bad Samaritans

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F. J. M. Feldbrugge, Good and Bad Samaritans: A Comparative Survey of Criminal Law
Provisions Concerning Failure to Rescue, 14 AM. J. COMP. L. 630, 657 (1965).
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Feldbrugge, F. F. (1965). Good and bad samaritans: comparative survey of criminal law
provisions concerning failure to rescue. American Journal of Comparative Law, 14(4),
630-657.
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F. J. M. Feldbrugge, "Good and Bad Samaritans: A Comparative Survey of Criminal Law
Provisions Concerning Failure to Rescue," American Journal of Comparative Law 14, no.
4 (1965-1966): 630-657
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F JM Feldbrugge, "Good and Bad Samaritans: A Comparative Survey of Criminal Law
Provisions Concerning Failure to Rescue" (1965) 14:4 Am J Comp L 630.
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Feldbrugge, F. J. M. "Good and Bad Samaritans: A Comparative Survey of Criminal Law
Provisions Concerning Failure to Rescue." American Journal of Comparative Law, vol.
14, no. 4, 1965-1966, pp. 630-657. HeinOnline.
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F J M Feldbrugge, 'Good and Bad Samaritans: A Comparative Survey of Criminal Law
Provisions Concerning Failure to Rescue' (1965) 14 AM J COMP L 630
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F. J. M. FELDBRUGGE
Good and Bad Samaritans

A COMPARATIVE SURVEY OF CRIMINAL LAW PROVISIONS
CONCERNING FAILURE TO RESCUE
A certain man went down from Jerusalem to Jericho, and fell among
robbers, who also stripped him, and having wounded him went away
leaving him half dead. And it chanced that a certain priest went
down the same way; and seeing him, passed by. But a certain
Samaritan being on his journey, came near him; and seeing him was
moved with compassion.
(Luke 10:30-31,33)
Introductory remarkl. The parable of the Good Samaritan and the

varying individual responses which it portrays are in their essential
features common to all times. We still agree with the audience of nine-
teen centuries ago that the Samaritan's response was right and the
priest's wrong. But society has undergone many changes since, and a
question which now occupies the minds of many is whether the priest's
response should be made a wrong according to positive law.'
In many countries failure to rescue or help a person in serious danger
has been made a criminal offense.2 The object of this study is an exami-
nation into the structure of these provisions and their application by the
courts.
The concern of criminal law with the duty of passersby towards
other people in danger is not of this century. In ancient Egyptian and
Indian law there are provisions which order the punishment of those
who fail to aid persons in danger. However, Roman law and scholastic
thought were unfavorably inclined toward legislation of this nature.
It is only in the nineteenth century that a similar provision reappears,
in the Russian Criminal Code of 1845', followed by the criminal codes
F. J. M. FELDBRUGGE is Senior Lecturer in Law, University of Leiden.
' This was the theme of the Good Samaritan Symposium held on April, 9, 1965, or-
ganized by the University of Chicago Law School. It is my pleasant duty to thank
Professor Harry Kalven Jr., the moderator of the Symposium, Sentry Insurance Com-
panies, who sponsored the Symposium, and the Public Relations Board, and their public
relations agent, for making the papers of the Symposium available to me. Hereinafter
the Symposium papers are referred to as GSS.
The research for this survey was done mostly at the Harvard Law School Library
during a stay in the United States, sponsored by the Netherlands Organization for
the Advancement of Pure Research (ZWO).
2Translations of relevant provisions from a number of criminal codes are to be
found in an appendix to this article.
8 Since this Code was mostly a compilation of previous enactments, it is very well
possible that the criminality of failure to rescue is in Russia of an even earlier date.
An unlikely explanation of this could be that Russian criminal law of 1845 was more
1966] FELDBRUGGE: COMPARATIVE SURVEY OF CRIMINAL LAW PROVISIONS 631
of Tuscany (1853)', the Netherlands (1881), and Italy (the Zanardelli

Code of 1889). Other codes in the first half of the twentieth century
also conformed to this pattern; but it has been only since World War
II that almost every new criminal code contains a failure-to-rescue
provision.
Although this study is devoted to the criminal law consequences of
failure to rescue, the problem has an equally important private law
aspect. When making failure to rescue a criminal offense, the conse-
quences in the sphere of civil liability should also be considered. The
principal issues on this point are: (a) compensation to the rescuer for
injuries or damage incurred during rescue operations and (b) liability
on the part of the rescuer for injuries or damage caused by his rescue
operations.
To the first question three answers are possible: the burden of com-
pensating the rescuer may fall on the victim, on the community, or on
the rescuer himself (i.e., he is not compensated at all). The second
solution seems to be the most promising as a general rule.
The second question should not be answered, in my opinion, without
taking into consideration the very negative consequences of making the
rescuer liable for negligence in its usual form. It is bad enough to allow
the priests and Levites to pass by; it is even worse to expose the Good
Samaritan to various lawsuits. 6 '
When is there a duty to rescue a person in danger? First of all, there
must be somebody in danger; if there is to be a rescuer, there must first
be a victim. What kind and degree of danger warrant interferiig in
the lives of citizens through criminal sanctions?
advanced and enlightened than the criminal law of other countries at that time. Rather
it is to be assumed that the ideals of 19th century liberalism and freedom of the
individual hardly influenced Russian law, which therefore, instead of restricting itself
to punishing a comparatively small number of clearly defined proscribed acts, aimed
chiefly at enforcing and reflecting the officially approved morality. The present Soviet
point of view is hardly different.
4 Art. 97 of the Regolamento Toscano di Polizia Punitiva, 1853. Cf. Guarnieri, I1
Delitto di Omissione di Soccorso (1937) 4 et seq., where a concise history of failure to
rescue as a criminal offense is given.
5 For a discussion of the civil law aspects of failure to rescue, cf., Dawson, "Nego-
tiorum Gestio: the Altruistic Intermeddler," 74 Harv.L.Rev. (1961) 817, 1073; id.,
"Rewards for the Rescue of Human Life?" in Twentieth Century Comparative and
Conflicts Law-Legal Essays in Honor of Hessel E. Yntema (1961) 142; Bohlen, 'The
Moral Duty to Aid Others as a Basis of Tort Liability," 56 U.Pa.L.Rev. (1908) 217, 316.
6 The sociological aspect of the Good Samaritan situation also suggests many questions,
of which only a few can be mentioned here. Can it be said that the behavior of the
Bad Samaritan reflects a more general breakdown of communication between individual
members of modern society? Are we becoming locked up in our own compartments?
Do we rely passively on anonymous agencies (police, welfare) to do what we think
is outside our province? Is there any point in the interference of criminal law in
situations where somebody is called upon to save a total stranger? (See also the final
paragraphs of this survey). Cf., also, Goldstein, Citizen Co-operation: The Perspective
of the Police [GSS].
THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 14
All legislation which punishes, in some way or other, failure to

rescueprotects primarily the person whose life is endangered. Although
it is entirely conceivable that an individual, and perhaps even society as
a whole, would place a higher value on honor, moral integrity, etc., than
on life, the protection of these values through criminal law provisions
similar to those concerning "failure to rescue" would be difficult, for
both practical as well as theoretical reasons.
In view of the conclusive argument that all living persons are in
potential danger of their lives, most legal systems further define this
danger as "immediate" or "direct" (Ethiopia, Hungary, The Nether-
lands, Poland, Yugoslavia) or as "imminent" (Ethiopia, France, Nor-
way). These terms generally include a degree of danger which leads
quite probably, barring interference from outside, to the death of the
person in danger.'
A similar requirement formulated by the courts of some countries is
that the danger be sudden. The main implication of this is that a fatal
illness does not per se represent a danger to life, though it might be so
in case of a sudden crisis.8
Another requirement expressed in some statutes is that the danger be
evident (Denmark, Norway, Spain). Basically identical is the Russian
provision, which talks of "aid . . . clearly not permitting of postpone-
ment" (my italics). In these instances an unresolved issue is whether
the danger must have been clear or obvious to the average observer or
to the person whose duty to rescue is discussed in concreto. In other
words, should an objective or subjective standard be applied? This
author is inclined towards the latter solution (see infra pp. 641-43).
Danger embodies the possibility of harm. Exposing a person to risk
of danger, a formula employed by the Bulgarian Criminal Code, is
tantamount to exposing him to danger. This equation is not meaning-
less in view of the requirement expressed, for instance, in the Finnish
Code and in French practice that the danger be "real." The opposite
7 France: a doctor had refused to treat a sick child who had suddenly taken a turn
for the worse. The doctor was acquitted, but in a cassationary procedure, dans l'intirit
de la loi, the court ruled that, where the danger was imminent, certain, and requiring
immediate interference, the doctor ought to have been convicted; Cass. 31 mai 1949, D.
[Dalloz] 1949, 347, and J.C.P. [Juris-Classeur P&iodique] II 4945 (1949). Poland:
Siewierski, Kodeks Karny i Prawo o Wykroczeniach, Komentarz [hereinafter quoted:
Siewierski (1958) 311. Russia: Nikiforov (ed.), Nauchno-Prakticheskii Kommentarii
Ugolovnogo Kodeksa RSFSR [hereinafter quoted: Nikiforov] (1964) 287.
8 France: J.C.P. II 2624 (1944): art. 63(2) Code Penal, only covers acute dangers,
and not dangers h longue ichdance. Germany: Two Bavarians had left a friend who was
very drunk, after several attempts to make him stand up, lying on a lonely mountain
road, where he was found unconscious and with several injuries the next morning.
The court ruled that a disease (and comparable situations such as drunkenness) did
not by itself constitute an accident (Ungiicksfall) unless there would be a sudden
development in the state of the victim; Bayerisches Oberstes Landesgericht, December
9, 1952, N.J.W. [Neue Juristische Wochenschrift] (1953) 556.
to real danger is not possible danger, but presumed danger. This is

made clear by French cases.9
The possibility of harm, inherent in danger, can be great or small.
The words "obvious," "direct," "imminent," etc., used in connection
with the danger may give the judge some indication of the measure of
probability of harm which is required. One of the most recent penal
codes, that of Ethiopia, drafted by Professor Jean Graven of Geneva,
uses the formula "imminent and grave peril." Here, the word "grave"
clearly indicates that there must be a considerable degree of probability
of harm to warrant criminal liability. The present tendency in a num-
ber of countries, especially, although not exclusively, in Eastern Europe,
is to extend the impact of the "failure to rescue" provision to other
dangers than to life alone. Sometimes the danger of serious injury or
serious damage to health is included (Czechoslovakia, Ethiopia, Poland,
Rumania) and sometimes all injuries are included (Hungary, Italy,
Turkey); the broadest description, in the German Criminal Code, com-
prises accidents, common dangers, or emergency situations, where aid
is needed. Similarly, the French Code simply mentions "an endangered
person;" this includes not only danger of death or serious injury, but
generally anything serious (quelque chose de fdcheux)"° as long as it
is physical. 1 The German provision, to the degree it extends to dangers
which do not necessarily threaten human life (e.g. forest fires'1 ) re-
mains outside the scope of this article.
It may well be argued that the helplessness of the person in danger is
a constituent element of that danger. It is expedient, however, to follow
the example of many statutes and deal with this requirement separately.
A number of legal systems recognize a duty to rescue only when there
is a person in some specific kind of danger, who at the time is unable
to save himself. The clearest, and somewhat tautological example of
such a provision is in the Bulgarian Criminal Code: "a person, deprived
of the possibility to take measures to save himself . ..as a result of his
helplessness." Similarly, the Russian Criminal Code of 1926 spoke of a
person "deprived of the possibility to take measures to save himself"
(Article 156). The new Russian Criminal Code omitted this provision,
but obliges the rescuer to offer aid which clearly does not suffer post-
9
C1. the French decision quoted in note 7, and Douai 20 d&embre 1951, D. 1952
Somm. 53: a hospital director, who was not a doctor himself and who had refused
admittance to a patient who, according to a doctor, was in mortal danger, claimed that
the danger actually was not so serious. The court ruled that this defense was of no avail,
since the defendant was not qualified to dispute the doctor's diagnosis. It did not help
the defendant that later he had admitted the patient. Cf. also Revue de Science Criminelle
(1952) 611.
10 Tunc, in his comment on the provision: [1946] D.33 (lg.).
I"Cf. the French decision quoted in note 7.
12 Cf. Schbuike-Schrider, Strafgesetzbuch, Kommentar [hereinafter: Schiinke-
Schr6der] (1965) 1384.
ponement; the latter words have been interpreted as implying, inter

alia, that there were no other persons other than the rescuer able to
eliminate the danger. 8
The Dutch, Italian, and Spanish codes also give some basis to regard
the helplessness of the victim as a prerequisite of any duty to render aid,
by their use, respectively, of the terms "the person in need of aid," "a
person incapable of looking after himself," and "a helpless person."
Logically there is little reason to put forward "helplessness" as a
separate requirement. A person who can extricate himself from a
dangerous situation is not in serious danger. French courts have elabo-
rated the requirement that the danger must necessitate immediate inter-
ference 1 , and a similar view is taken by the Russian rule which pro-
vides that one must render such aid as does not suffer postponement, or
the German rule which requires aid in any emergency situation where
aid is needed. 8
Although the solution in the latter codes seems preferable for various
reasons, it must be conceded that in this way the entire problem of
defining the danger that entitles a person to aid from bystanders has
been removed from the legislative to the judicial level. What these pro-
visions in fact say is that one is obliged to rescue a person whom one
ought to rescue.
This takes us to the next question. What other factors, apart from
the specific danger threatening a person, give rise to a duty to rescue
that person? In other words, on whom does the duty to rescue in fact
fall? The answer to these questions, as it emerges from the various
statutes, seems to be that the duty to rescue a person in danger falls
on those who are able to help and who are not otherwise excused.
The ability to help may be dissected into three elements: (a) nearness
to the danger, (b) awareness of the danger, and (c) the existence of the
possibility of effective interference.
The Dutch Criminal Code, which has one of the oldest rules on this
subject and accordingly is more restrictive in its approach, limits the
class of persons on whom a duty to rescue may be imposed to those who
are present at the place of the danger. One who refuses to go to the
place where somebody is in danger is not punishable." In more recent
years, however, the scope of the provision has been somewhat enlarged
by the judicial interpretation of the word "witness;" not only an eye-
18 Nikiforov 287; Shargorodskii-Beliaev, Kommentarii k Ugolovnomu Kodeksu
RSFSR 1960 g. [hereinafter: Shargorodskii] (1961) 242.
14 Cf. the French decision quoted in note 7.
18 There is a decision of the Reichsgericht that does not consider the helplessness
of the victim as a prerequisite of the duty to rescue; but this view seems to have been
held only during the Nazi period; 75 RGSt [Entscheidungen des Reichsgerichts in
Strafsachen] (1941) 359.
18 Noyon-Langemeijer, Het Wetboek van Strafrecht [hereinafter Noyon-Lange-
meijer] 11 (1954) 682.
1966] FELDBRUGGE: C014PARATIVE SURVEY OF CRIMINAL LAW PROVISIONS 635
witness, but everybody 'who is present and aware of the danger is

placed in that category.17 Most modern penal codes do not require
presence, but only physical nearness to the danger (Italy, Spain). 8
The Belgian Criminal Code, which has one of the most recent pro-
visions on this point (introduced in 1961), does not even require physi-
cal nearness. It covers not only persons who are actually witnesses to
the danger, but also those to whom the danger is described by others
who invoke their help. There is, indeed, much to be said in favor of
dropping the requirement of physical nearness altogether. The rationale
for its inclusion has undoubtedly been that only persons who were
present at the scene of the accident could know about it and would be
able to help. In an era of improved communications this argument loses
much of its original force.
Besides physical nearness, there must also be "intellectual nearness."
In other words, only persons who are aware of the danger threatening
somebody else can be eligible as potential rescuers. This is part of a
larger question, what the mens rea of the violator of the "failure to
rescue" provision should encompass, a matter touched on at length
below.
It does not need much argument that only persons who were in fact
able to render aid can be blamed for not having done so. This is nothing
but the application of the defense of necessity to criminal omissions.
In the commission situation this defense exonerates the offender who
was forced by specific circumstances to commit a proscribed act. In
case of omissions it should consequently exonerate the offender who
was prevented by specific circumstances from acting as he should have
acted under penalty of law. What are the specific circumstances that
can be considered as sufficiently weighty to lift this duty? First of all,
this obviously comprehends anything which makes it physically im-
possible to render aid. Further, anything which entails specific dangers
or difficulties of a physical or moral nature to the potential rescuer is also
included. These dangers and difficulties are discussed in some detail in
the following paragraphs.
The general rule that impossibility to render aid justifies the inaction
of a potential rescuer is explicitly mentioned in only a few codes (e.g.,
the Russan Criminal Code of 1845); more often the rule is implied
through use of expressions like "the aid he could have given," "the pos-
sible aid," etc., (Albania, Belgium, Czechoslovakia, Denmark, Ethiopia,
Finland, France, Germany, Greece, Hungary, Iceland, The Nether-
lands, Norway, Poland, Rumania, Russia, Spain, Turkey, Ukraine,
Yugoslavia).
17Supreme Court, January 18, 1926, Nederlandse Jurisprudentie (1926) 242.
isItaly: Cass, May 19, 1949, Pompeo, cf. Rivista Penale (1949) II 594 and Giustizia
Penale (1949) II 490. Spain: Del Rosal (ed.), Codigo Penal, (1964) sub. art. 489 bis.
THE AMERICAN JOURNAL OF COMPARATf E LAW [Vol. 14
The question regarding such dangers as will relieve the rescuer from
the duty to rescue cannot be answered simply by reference to the de-
fense of necessity. The circumstances which give rise to the defense of
necessity are not the only ones which exonerate a person who fails to
rescue somebody in danger. Otherwise too heavy a burden would be
imposed by those statutes where necessity is defined narrowly. In many
countries the defense of necessity can be pleaded only where the harm
inflicted is less than the harm averted. Then the rescuer would be re-
quired to aid any person in danger, provided the danger to which he
exposes himself is less than the danger to the victim. Almost all legis-
lative provisions make things somewhat easier for the rescuer by allow-
ing him immunity from criminal responsibility where rescue operations.
would entail serious danger for himself or third persons. An exception
is provided by Italian criminal law, which permits the rescuer to invoke
only the usual defense of necessity."
Most statutes not only envisage danger to the potential rescuer, but
also danger to third persons as a possible ground for justifying inaction.
Apart from the Italian Code, which contains no special reference to
dangers which exonerate the rescuer, the Greek Criminal Code alone
extends immunity to the rescuer but only if rescue operations would
endanger his own life or health. The German Criminal Code does not
expressly mention danger to third persons, but requires aid only where
"under the circumstances it can be expected" and exonerates the rescuer
who, by undertaking rescue operations, would violate other important
duties. The Polish Code mentions danger to "himself or persons close
to him." All other legislation covered in this survey, including the
Draft Criminal Code of Poland, allows the rescuer also to plead danger
to other persons as a justification for failure to rescue.
The rescuer is not required to undertake rescue operations where he
would expose himself to specific dangers. Exactly what kinds of danger
does this include? A general and preliminary answer to this question is
that nobody is required to expose himself to danger which is greater
than the danger to which the victim is exposed. This rule is nothing
but the application of the defense of necessity to the failure-to-rescue
situation.
Almost all legislation, however, goes much further to provide a
larger area of impunity in cases where a person believes himself excused
from undertaking rescue operations because of dangers to which he
would expose himself; the Belgian Code makes this clear by contrasting
"great danger" to the victim with "serious danger" to the rescuer.
The strictest rule is formulated in Rumanian law: only danger of
death justifies inaction on the part of the potential rescuer. In Russia
serious danger exculpates, which implies more than mortal danger
19 Cf. Borghese, I1Codice Penale Italiano (1953) 734 et seq.
alone." A similar position seems to be taken by Dutch law, where a

formerly-held view that only mortal danger to the rescuer eliminated
the duty to rescue has now been abandoned.2 In the same category may'
be ranged the criminal codes of Greece ("danger to life or health"),
Poland ("personal danger," which appears to signify danger to life
or health), 2 Denmark and Norway ("particular danger"), Germany
("considerable danger"), and Belgium ("great danger"). Other legis-
lation mentions "danger" without any further qualification (Czecho-
slovakia, Ethiopia, Finland, Iceland, The Netherlands, Spain, Yugo-
slavia), but at least in the case of Dutch law it is clear that an
insignificant risk does not justify a refusal to render aid. The French
Code Pinal does not contain any express provisions on this matter,
but French courts have ruled that nobody is required to run serious
risks in rescuing other people.2 However, serious risk must be inter-
preted as physical danger; it does not cover moral risks, such as damage
to one's reputation, or the risk of incurring a criminal prosecution.2
Opinions are much more divided on the question of whether danger
of material damage, apart from physical danger, must be included in
the list of exonerating dangers. The question is apparently answered
affirmatively in France and Germany (reasoning a contrario, since one
has to suffer insignificant damage or inconvenience, such as the use of
one's telephone in an emergency"), Denmark and Norway (where the
codes mention "particular ... sacrifice" along with "particular dan-
ger"). The other codes mentioned in the preceding paragraph seem to
take the view that the danger of a purely financial loss does not cancel
the duty to rescue a person in danger.
A further consideration in weighing the danger threatening the vic-
tim against the danger incurred by the rescuer is the relative probability,
whatever the theoretical seriousness of one form of harm in relation to
the other, that one danger rather than the other will under the circum-
20 Nikiforov, 287-288.
21 By Noyon-Langemeijer (6th ed. 1954) II, 681, which is different from the view
taken in the 5th edition of the same work, (1949) III 500.
22 Siewierski, 311.
23 Garqon, Code Penal Annot6 (1952) sub. art. 63.
24
Ibid.
25 France: ibid. Germany: 11 BGHSt [Entscheidungen des Bundesgerichtshofs in
Strafsachen] (1957-1958) 353, 13 Juristenzeitung (1958) 506; criticism of this decision
by Welzel, 'Zur Problematik der Unterlassungsdelikte," 13 Juristenzeitung (1958) 494.
However, the German Federal Court, in a decision of November 14, 1957, ruled that
a woman who had been in a car with her husband when he injured a pedestrian, could
not be expected to inform the police of the accident if this would amount to reporting
her husband to the police (it was held that this was not the case here and she was
convicted accordingly), 11 BGHSt (1957-1958) 135.
26 France: an unpublished decision of the court of Colmar, quoted by Lambert,
Cours de Droit Penal Sp&ial (1950) 918-919. Germany: Landgericht Bielefeld, Deut-
sches Strafrecht (1939) 217.
27 E.g., The Netherlands: Noyon-Langemeijer, II 681; Poland: Siewierski 311,
stances eventuate in harm."' Indeed, the terms 'particular danger',

'serious danger', etc., can be interpreted in such a way as to include this
element of probability. Accordingly, a remote possibility of death may
constitute a smaller degree of danger than a probability of serious
injuries.
Finally, in this section the danger to which the rescuer would expose
himself by undertaking rescue operations has been treated as a defense,
and not as an element of the offense of "failure to rescue." It seems
that this is the only logical treatment. The general underlying rule is:
"You shall help a fellow human being who is in danger, provided this
does not entail danger to yourself." The basic rule is not: "You need
not help a fellow human being in danger, unless you can do so without
danger to yourself." It is only in order to avoid placing an unduly heavy
evidentiary burden on the defendant that most legislation postulates
the absence of danger to the rescuer himself, or to third persons, as an
element of the offense. It is considered the task of the prosecution to
prove that there were no dangers sufficiently serious to prevent the
rescuer from extending the necessary aid.
Should the person who caused the danger which threatens the victim
be punished for failing to render the necessary aid? In principle, there
seems to be no reason why of all persons precisely this one should be
freed from criminal responsibility for failure to rescue. Still, there is
something unsatisfactory in punishing the man who has lain in ambush,
shot his victim, and left him dying in a remote spot, for failure to rescue
him, in addition to punishing him for murder. On the other hand,
most of us would agree that the hunter who accidentally or by negli-
gence injures a solitary wanderer ought to be punished for failing to
render the necessary aid to his victim.
A closer consideration of these two examples may suggest a solution
to this dilemma. Where the act by which the danger is caused naturally
implies a refusal to undo the harm caused, one may assume that this
refusal has already been taken into account in the penalty for causing
that danger. In other words, since the average murderer after doing
what he considers necessary to kill his victim does not normally take
steps to save or revive the latter, murderers are not punished additionally
for failure to rescue their victims. Another way to put it plainly is this:
Where the danger to the victim has been caused intentionally, the lesser
offense of failure to rescue is "absorbed" by the greater offense of at-
tempted homicide or infliction of bodily harm. Where, however, the
danger to the victim has been caused by negligence or accident, the
failure to extend aid is the result of an independent decision of the
potential rescuer, and as such deserves separate punishment.
28 Cf. the first German decision quoted in note 25.
These views are most clearly reflected in German law and doctrine."9
In Poland the Supreme Court has ruled that the failure-to-rescue pro-
vision is not applicable to persons who themselves have caused the
dangerous situation."0 The same view is taken in Italian criminal law
on the basis of considerations similar to those offered in the preceding
paragraph. A further reason to reject the causator's liability in this case
is found in the wording of the Italian provision, which uses the words
"finding . . . a person" (trovando); the person who caused the danger
arguably did not find the victim in a dangerous situation."1 In both the
Polish and the Italian rule, however, one has to read "caused" as "in-
tentionally caused", since it is unlikely that a person who unintention-
ally caused a serious danger to somebody else, e.g., in the case of a
traffic accident, is not required to come to the aid of his victim."2
There is absolutely no doubt in French law on the latter point."3
Otherwise, however, French doctrine recognizes that there are serious
objections to separate punishment for failure to rescue in cases where
the danger was caused intentionally."4
What bearing has the conduct of the victim on the duty of other
persons to help him? In this regard we may usefully distinguish be-
tween conduct anterior and posterior to the occurrence of the danger.
Where the victim himself is to be blamed, entirely or in part, for
having placed himself in a dangerous situation, there is no fundamental
change in the duty of potential rescuers. The provision which prohibits
failure to rescue is directed towards the preservation of human life, and
this includes the lives of people who are stubborn, hysterical, or just
plain foolish."9 However, it is debatable whether the duty should not
be considered less stringent, in other words, whether the danger threat-
ening the victim should not be proportionally greater with regard to
29 Sch6nke-Schr~der 1387, 1389; Dalcke-Fuhrmann-Schifer, Strafrecht und -Strafver-
fahren (1961) 399; Oberlandesgericht. Frankfurt, cf. N.J.W. (1957) 1847.
30 A decision of 1957 of the Supreme Court, quoted by Siewierski.
31 Borghese, II Codice Penale Italiano (1953) 734-6. Of course, the modern construc-
tion of "finding" (trovando) does not only cover those who find the person in danger,
but also those who are present or in the vicinity at the time when there is a person in
danger (cf. the decision quoted in note 18). Still, this is not considered to imply
persons who themselves caused the danger.
32 However, in a recent resolution the Supreme Court of the USSR ruled that a
driver who has culpably caused a traffic accident should be convicted only of causing
a traffic accident; his failure to render aid must be considered in determining the
penalty; Biulleten' Verkhovnogo Suda SSSR No. 3, (1965), 12, resolution of April 9,
1965.
as A doctor involved in a hit-and-run accident was found guilty on three counts:
involuntary wounding, failure to render aid, and leaving the scene of the accident, and
sentenced to 18 months imprisonment and a fine of 50,000 (old) francs; Re.nnes 20
d&embre 1948, D. 1949, 230.
14 Emile Garqon, in his annotated edition of the Code Pdnal, asks the question
whether a murderer ought to be punished for failure to aid his victim; Garq0n, Code
Penal Annote (1952), sub art. 63(2).
81E.g., France: ibid; Czechoslovakia: Trestn Zaikon Komentai (1964) 541.
the danger threatening the rescuer, than would be the case in a normal
failure-to-rescue situation. Is it reasonable to disregard an express and
well-founded warning given to a person who swam in dangerous waters
or climbed a treacherous cliff, when deciding on the duty of the person
who gave the warning to come to the rescue of the victim? Can it not
be said that one who warned another of specific dangers has already
taken steps to save a potential victim from harm?
Where the victim refuses aid after the occurrence of the danger, the
decisive factor is whether the danger threatens something a person may
freely dispose of. According to the prevailing standards of most civilized
countries, life does not enter into the latter category."8 The question is
relevant in German law, where there is a duty to intervene in case of a
"common danger," and also in other legal systems which already en-
visage a duty to rescue where the victim is threatened only by danger of
physical injuries. In other cases it must be assumed that the victim's
refusal to be saved has no bearing upon another person's duty to rescue
him.
It needs no arguing that the victim's conduct is of crucial importance
in deciding his quasi-contractual or tort liability vis-a-vis his rescuer.
At a first glance, and from a logical point of view, it would seem that
one is not required to render aid in cases where that aid cannot achieve
its purpose to save the victim's life. Nevertheless, I have found this view
expressed only in Dutch law." Several other legal systems do not dis-
charge the potential rescuer in cases where the victim is dying or other-
wise beyond assistance. French courts have convicted persons who did
not render aid to people who were dying3"; there is even a case of a
conviction of a surgeon who refused to perform a caesarean operation
on the dead body of a woman who was eight months pregnant." The
Supreme Court of Germany also ruled that the inevitability of death
does not affect the duty to render aid;"0 only when the victim is already
8 France: Vouin, Pr&is de Droit Pnal Sp6cial (1953) 168; Germany: Dalcke-
Fuhrmann-Sch~ifer 400, and 6 BGHSt 147 and 13 BGHSt 162; Sch6nke-Schr6der 1384,
1387, are of a different opinion; see also 2 BGHSt 150.
87 Van Bemmelen-van Hattum, 2 Hand- en Leerboek van het Nederlandse Strafrecht
[hereinafter: van Bemmelen-van Hattum] (1954) 186.
Is Aix, 23 d&embre 1952, J.C.P. II 7429 (1953), D. 1953, 128: during the night a
farmer had heard shooting on his land, where some people were camping. He did
not bother to look and the next morning he found a girl covered with blood, who
was still alive. He did not call a doctor or pay any attention to the girl, but later asked
a passing motorcyclist to warn the police. When the police arrived the girl was dead.
The defendant's argument that the girl was beyond assistance anyway was not accepted
by the court as sufficient justification for doing nothing.
" Montargis, 26 novembre 1952; Gazette du Palais 16 janvier 1953, Revue de Science
Criminelle (1953) 154; the commentators agree that this decision goes too far.
40 Sch6nke-Schr6der 1385; Juristische Rundschau (1956) 347. A comment on art.
207 of the Czechoslovak Criminal Code (Trestnt Zikon, Komenti 541 (1964), sub
art. 207 point 4) states that liability for failure to rescue cannot be avoided by proving
that the giving of aid would not have improved the position of the victim.
dead does this duty cease to exist. 1 The Polish Supreme Court put it
succinctly: as long as the victim is alive, he is in danger."2
I believe that these decisions are in the main correct, though I have
reservations about the French decision concerning the caesarean opera-
tion. Frequently the potential rescuer is not in a position to establish
whether the victim is really beyond effective assistance; even where this
clearly is the case, it seems to be a humane duty to do what is possible
to comfort the victim and alleviate his suffering. If one accepts the
basic concept of an offense of "failure to rescue," it is hard to see why
the duty to give reasonable aid to a dying person should not be en-
forced by criminal law.
Opponents of a failure-to-rescue provision have often pointed to the
difficulties that would arise where several persons are eligible as poten-
tial rescuers.
It appears that there is no serious theoretical problem in these cases.
The duty to rescue presupposes several requirements: a person in serious
danger, the possibility to help, the absence of danger to the rescuer, etc.
Any person who satisfies these requirements is thereby designated as
one who is duty-bound to aid the victim; it is immaterial whether only
one person is so designated, or several.
The real problems arise rather on the practical level, because of the
differences in personal qualities and social functions of potential res-
cuers. During an emergency it makes a difference, in respect of the
duty to rescue, whether the potential rescuer is a young man, or an old
lady; even in the case of one and the same person, it makes a difference
whether, e.g., he is there as a policeman on duty, or on his afternoon off.
The courts in several countries have been aware of these problems.
They insist on the basic rule that all "designated" rescuers are liable for
failure to rescue."3 On the other hand, where somebody is helping the
victim already, the danger to the latter recedes and there is no duty for
others to help, unless they would be able to provide faster or better
help."
There is a fairly general consensus that failure to rescue is an offense
which can only be committed intentionally. This means that criminal
liability arises only where the offender acted intentionally with regard
to the elements of the offense: knowing that somebody was in specific
danger, that he was able to help, and that this help would not entail
4' 71 RGSt 203, 1 BGHSt 269; same decision in France, cf. the decision quoted in
note 38.
42 Decision of January 31, 1949, Zbi6r OrzeczeAi Sqdu Najwyzszego-Orzeczenia Izby
Karnej No. 35 (1949), Demokraticzny Przeglqd Prawniczy No. 3, (1949) 53.

' Czechoslovakia: Trestni Zkon, Komenti (1964) 541, sub art. 207 point 6;
Germany: 2 BGHSt 298; Italy: see the decision quoted in note 18; Poland: decision of
the Supreme Court No. 273 of 1935, quoted by Siewierski 311, sub art. 247 point 5.
"Cf. the German decision quoted in the preceding note; and for Italy, Cass. 10
November 1937, Piaggio, 2 Giustizia Penale (1938) 507.
specific danger to himself, he consciously refrained from extending aid.

In some countries the law specifically requires that the rescuer be
aware of his duty to help (France, Italy).," In most countries, however,
a knowledge of the factual elements of the offense (person in danger,
possibility to help, absence of risk to the rescuer) is considered sufficient
as a basis for criminal liability.
A further study of the mens rea aspect shows that there is much un-
certainty on this point. In Germany, it is held that the question of the
duty to render assistance should be decided according to an objective
standard;"8 conversely it is argued that a person who without proper
reason believes that he would run a serious risk by helping the victim
is not liable to be punished. 7 In France, opposite results have been
reached in cases where the rescuer made an erroneous decision in assess-
ing the danger to which the victim was exposed and the danger to
which he would expose himself by undertaking rescue operations."
It seems that most of the difficulties concerning the mens rea of the
defaulting rescuer can be solved by dropping the requirement of inten-
tion as a prerequisite of criminal liability for failure to rescue. This
view concurs with those rulings which convicted the offender because
he had acted negligently with regard to one or more elements of the
offense, e.g., where the offender without sufficient reason had assumed
that the danger threatening some other person was insignificant," or
where the offender without sufficient reason had assumed that giving aid
would entail serious risks for himself."
The matter is apparently best left to judicial discretion. Slight negli-
gence (forgetfulness, nonchalance) should evidently exculpate, but not
gross negligence. (Once more, it has to be remembered that there is no
borderline between intent and negligence, but only a border area.)
The relevant provision in the Belgian Criminal Code (introduced in
1961) suggests a solution along these lines, where it states that a person
who has been informed by others of the danger to the victim is not
to be punished if, on the basis of the circumstances in which he was
asked to help, he could believe that the request was not serious or that
there was no real danger to the victim.
45 France: Lambert, Cours de Droit PNnal Splcial (1950) 918-9; Italy: Cass. May 25,
1932, Scuderi, 2 Giustizia Penale (1932) 1133.

4"Schnke-Schrfider at 1385.
47 Schbnke-Schrfder at 1388.
48 The inhabitants of an isolated farm who refused to admit a stranger who claimed
to be injured (because they feared he was up to no good) were convicted; Trib. Mans
22 octobre 1951, J.C.P. II (1951) 6657, Revue de Science Criminelle (1952) 87. A
man who first extinguished a fire in his car fearing that there might be an explosion
and only afterwards started to help a mechanic whose clothes were on fire was ac-
quitted; C.A. Riom, 20 mars 1947, D. 1947, 304.
49 Cf. the French decision quoted in note 7 and the German decision quoted in
note 25.
50 Cf. the first decision quoted in note 48.
1966] FELDBRUGGE" COMPARATIVE SURVEY OF CRIMINAL LAW PROVISIONS 643
In establishing what constitutes "sufficient reason," one may apply a

subjective or an objective, "reasonable man," standard. Among the
various legal systems opinions are divided; "' my preference goes to the
subjective standard, since in criminal law the "reasonable man" stand-
ard is inevitably unreasonable."
It does not seem very practical to make knowledge of the duty to help
a separate element of the offense of failure-to-rescue. If, exceptionally, a
person can show that notwithstanding his knowledge, or possible
knowledge, of the factual elements of the offense he was not aware,
and need not have been aware, of any moral or legal obligation to help,
he should be acquitted.
The increase of motor traffic in this age has caused traffic accidents to
become the most common source of a failure-to-rescue situation. In
these and similar cases the most urgent need is for medical assistance,
and this has resulted in increased interest in the responsibility of doctors
under a failure-to-rescue provision.
It is clear that in the countries under review the doctor's responsibility
is beyond question. In France especially, there is a proportionally large
number of members of the medical profession among the violators of
Article 63(2) of the Code Pnal.
The general opinion is that there is no necessity to establish special
rules to deal with the doctor's responsibility in this matter. The fact
that doctors are often able to give help that other people cannot give
does not warrant a special legal position for the medical profession in
this respect. It only means that the duty to aid a person in danger may
occasionally require more from a doctor than from other people."
In some legal systems the fact that the offender is a doctor, or a person
otherwise specially qualified to help, is considered an aggravating cir-
cumstance to the offense of failure to rescue (e.g., Czechoslovakia).
Of what does the duty to rescue consist? Once it has been established
that there is a duty to help, we have to consider of what this duty con-
sists. It is clear, however, that the duty to help cannot be absolute; it is
always a duty to render a certain kind of help. The two questions, the
51 The Dutch Code, followed herein by the Russian Code of 1903, *uses the term
"reasonably," which obviously points to the acceptance of an objective standard. In
France, it seems that both criteria are applied (cf. the decisions quoted in note 48).
In Germany, there is a decision of the Reichsgericht of August 13, 1943, Deutsches
Recht (1943) 1103, which clearly applies a subjective standard. This decision, however,
was taken during the period of National Socialist rule when the intention (Gesinnung)
of the offender was heavily emphasized. Sch6nke-Schr6der at 1384, maintain that an
objective standard should govern whether one should aid a person in danger and
what kind of aid one ought to give. On the other hand, they admit (p. 1388) that
an erroneous belief of the potential rescuer that he is running a serious risk exculpates
him. In Czechoslovakia, the rescuer is bound to aid a person whom he believes to
be in serious danger; Trestnf ZMkon, Koment i (1964) 541.
2 Cf. Hall, General Principles of Criminal Law (1960) 152-7.
53 Cf. the German decision quoted in note 43. For Poland see Siewierski at 312.
THE AMERICAN JOURNAL OF COMPARATIVE LAW (Vol. 14
existence of a duty and its content, are therefore essentially one; it is

only for convenience's sake that we have thus subdivided the subject.
Some questions which have been discussed above (e.g., the duty to help
in hopeless cases) might equally well be treated in connection with the
contents of the duty to help.
In the preceding paragraphs some lines have been drawn which help
to define further the duty to render aid. For instance, there is no duty
to help where the potential rescuer himself would run particular risks.
Various other negative requirements may be formulated in the same
way.
When looking for a more positive way to define the contents of the
duty to help, we find in a number of statutes an answer in terms of the
individual capabilities of the potential rescuer. He must help "to the
best of his ability" (Denmark, Norway), he must give "such help as
could be expected from him" (Hungary), or "the aid that he could
give" (Turkey). Other legislation refers to what is objectively required
to counter a particular emergency: "the aid which is necessary and
clearly does not admit of postponement" (Russia), "the necessary aid"
(Czechoslovakia, Italy). The two are combined in the German formula
"the aid .. .which under the circumstances can be expected from
him."
Another, more lenient, approach is taken by French doctrine. Here
it is argued that one will always be able to offer some help which will
not bring with it any risk to the helper; only total inaction on the part
of the potential rescuer should lead to criminal liability." The French
courts seem to settle for an intermediate point of view: where the help
which is being offered exceeds a certain measure of inadequacy, criminal
liability sets in."
The idea that only a person who remains totally inactive in the face
of an emergency ought to be punished, is also encountered in Polish
law'" and very unambiguously in the Russian Criminal Code of 1845
(". . . does not take any measures to save him," Article 998).
The duty to help will not infrequently materialize in the form of a
duty to procure help. This has been acknowledged in many codes,
where the latter duty is explicitly mentioned along with the duty to give
help. In almost all cases the duty to procure help is of a subsidiary na-
ture, i.e., one must first try to rescue the person in danger and only
where this appears impossible should one obtain help elsewhere (e.g.,
"Lambert, op. cit. at 918-9.
5A woman, whose husband was suffering from poisoning, gave him milk to drink,
but did not call a doctor; she was acquitted; Trib. corr. Lesparre, 25 janvier 1945,
Semaine Juridique (1945) II 2896. Parents who looked after and nursed a very sick
child, but failed to call a doctor, were convicted; Grenoble, 9 avril 1954, J.C.P. (1954)
II 8139.
"Siewierski at 311.
France, Italy, The Netherlands, Russia, Spain"7 ). The requirement that

one must obtain help "without delay" (Italy) or inform in timTe the
proper authorities or persons (Russia, Ukraine) is only a logical exten-
sion of the idea that one must do what is in one's power and required
by the circumstances.
In some statutes the duty to procure aid is limited to a duty to inform
the authorities (Italy, Rumania, Turkey). It seems that in this respect a
formula which leaves open an alternative is to be preferred ("the proper
authorities or other persons," Russia and the Ukraine; "the proper au-
thorities or otherwise," Norway).
The question of the contents of the duty to help in a situation where
several rescuers are available has been discussed above.
Another question which merits some consideration in this context is
the consequence of negligent execution of the duty to rescue on the
rescuer's liability. The few instances where this question is discussed
suggest that the decisive factor in this respect is the rescuer's motivation.
As a rule, motivation will not influence criminal liability for negligent
behavior, although it can be taken into consideration in selecting a
proper penalty. However, in case of failure to rescue there seems to be
a tendency to absolve the clumsy.5" An error in judgment which nor-
mally would lead to criminal liability is justifiable in these cases because
the rescuer has shown his willingness to do his duty.
. What happens to one who fails to discharge a duty to rescue? 'When
has one failed to discharge his duty? The main view is that the poi:ential
rescuer ought to act the moment his duty arises; by failing to act im-
mediately he commits the offense of failure to rescue. The consequences
of this rule are important:
(a) It is of no consequence to the offender's liability whether the
victim dies, is injured, or escapes (France, Poland, Russia) ".5
(b) A deliberate delay is tantamount to an omission (Czecho-
slovakia, France, Italy)."
(c) It is of no consequence to the offender's liability that the
victim is subsequently rescued by a third person (Germany)."
5T France: Garqon, op. cit. (1952) 1, sub. art. 63 27. Italy: only where help is not
directly required or possible, must the authorities be informed instead; Class. 22
December 1937, Rombol5, Giustizia Penale (1938) II 485; see also the Italian decision
quoted in note 18. The Netherlands: Noyon-Langemeijer I (1954) 682. Russia:
Nikiforov at 288. Spain: Del Rosal, Codigo Penal (1964), sub. art. 489bis.
58 Noyon-Langemeijer (1954) 682: the person who tries to help, although he would
have been wiser to go and procure help, is not liable to be punished. Cf. also the second
French decision quoted in' note 48.
59 France: Crim. 21 janvier 1954, J.C.P. (1954) IV 30. Poland: Siewierski at 311; Rus-
sia: Nikiforov at 27.
60 Czechoslovakia: Trestnf ZMkon, Komentii 542 (1964). France: Douai 20 d{cembre
1951, D. 1952 som.53, Revue de Science Criminelle (1952) 611. Italy: Cass. 3 July 1935,
Palumba, Giustizia Penale (1935) 111371.
Ci 2 BGHSt 296 et seq., and another decision of the Bundesgerichtshof published in
N.J.W. (1960) 1261.
As always, this rule must be applied with some caution and common
sense. It serves obviously very little purpose to punish a man who at
first refused to help a person in danger and then changed his mind and
rescued him. This situation is reminiscent of the concept of desisting
voluntarily from perpetration of a crime, which in many codes brings
about the extinction of liability for criminal attempt. It is, however, im-
possible to attempt to commit the offense of failure to rescue, since any
behavior less than taking measures to rescue the person in danger con-
stitutes the full offense.
In several statutes there is no criminal liability for failure to rescue
unless the victim has died or been injured. In the light of the preceding
paragraph it becomes clear that such a provision is more than merely
a carry-over from an era where criminal liability was defined more in
terms of physical harm and material damage than in terms of antisocial
attitudes.
By making criminal liability subject to the occurrence of the death
or injury of the victim, the entire awkward question of the exact time
of the potential rescuer's possible action is avoided.
The following codes limit the liability for failure to rescue to cases
when specific consequences arise: Albania (death or injuries of the
victim), Latvia (Article 115, Criminal Code: serious consequences to
the victim), The Netherlands (death of the victim), Russia (Code of
1845: death of the victim), Russia (Codes of 1903 and 1922: death or
serious injuries of the victim), the Ukraine (Article 112, Criminal Code:
death of the victim or serious injuries). All codes stipulate that criminal
liability arises only when the death or injuries of the victim are the re-
sult of the failure of the potential rescuer; an exception is provided by
the Dutch Criminal Code, where the drafters apparently preferred to
avoid the then-thorny problem of causation by negative acts.
The advantages of this system are, in my opinion, outweighed by the
fact that a relatively large number of persons, whose conduct is clearly
very reprehensible, remains outside the scope of criminal law. It is
hard to see why they should escape punishment merely because the
person they refused to save was fortunate enough to be saved by other
people or circumstances.
In some legislation the occurrence of serious consequences (death or
injury of the victim) is made a special aggravating circumstance of the
offense of failure to rescue (Hungary, Italy).
While comparing the maximum penalties provided in various legis-
lation two considerations arise: (a) in some legislation there is a tra-
dition normally to impose a penalty well below the maximum, while
under other legislation the tradition might be more severe; and (b)
there are traditional differences in setting maximum and minimum
penalties. In some countries the entire penal system is more lenient than
in others.
Bearing this in mind, we can distinguish the following levels of

maximum penalties:
(a) a fine (Finland, Turkey); in most other countries a fine may
be imposed as an alternative or additional penalty;
(b) detention (arrest, prison, etc.) of 3 months (Denmark. Italy,
The Netherlands, Norway, Rumania);
(c) detention of 6 months (Czechoslovakia, Ethiopia, Russia);
(d) detention of 1 year (Germany, Greece, Hungary, Yugo-
slavia);
(e) detention of 3 years (Bulgaria, Poland);
(f) detention of 5 years (France).
The severity of the maximum penalty in France is explained by the
fact that the French failure-to-rescue provision also serves to punish
crimes of homicide committed by negative acts. 2
An interesting historical parallel may be observed between the Rus-
sian Code of 1845 which provided an ecclesiastical penalty for the
offense of failure to rescue, and the present Russian Criminal Code,
which, besides deprivation of freedom, provides the alternative of a
penalty to be imposed by community authorities, in fact the so-called
comrades' courts, whose task it is to enforce communist morality.
Related situations. Some codes impose a duty to save human bodies
which are dead or seem to be lifeless (Denmark, Iceland, Italy, Tur-
key). Saving a corpse must obviously be interpreted as taking appro-
priate measures for its recovery. Underlying these provisions one might
perceive considerations of regard for human decency or of protection
of public health and hygiene, but the context of these provisions, in
particular their close relations with the actual failure-to-rescue provi-
sion, makes it more likely that the first thought of the lawmaker was
the protection of human life. Where a person'has died recently it may be
hard for a casual observer to establish whether death has set in. It is
useful to extend the failure-to-rescue provision to these cases, as is done
in the codes of the above-mentioned countries. The provision seems to
be unnecessarily harsh in cases where the body apparently has been
dead for some time.
The problem of distinguishing between failure to rescue and inten-
tional homicide is closely interwoven with the more general problem
of the relevance of negative acts in criminal law, and will be di,;cussed
below.
Another offense, which frequently can be regarded as a special and
aggravated form of failure to rescue, is exposure or abandonment of a
person unable to help himself (Germany, Article 221; Italy, Article
62Cj. Donnedieu de Vabres, Trait6 de Droit Criminel et de LUgislation P~nale
Compar'e (1947) 72, and also Levasseur, "L'Omission de Porter Secours," 26 Revue
Internationale de Droit Pnal (1955) 406.
591; The Netherlands, Article 255; Russia, Article 127(2)). Exposure is

usually considered as a positive act, as contrasted to the negative act of
failure to rescue. Nevertheless, it is quite possible to say that somebody
who intentionally omits to rescue a person in danger exposes that
person to danger or abandons him.
Exposure is nearly always an offense which can only be committed
by persons who are under a special duty to look after the person who
is exposed. The other differences between exposure and failure to
rescue arise from this special relationship; in the case of exposure the
requirements as to convenience and risk which will justify failure to
help the victim are stricter than in the case of failure to rescue."3 For
the offense of exposure it is usually not required that the victim be
exposed to mortal danger.
Closely related to exposure is the offense of failure to rescue com-
mitted by a person who has a special duty to help the victim. The
offense is defined in many statutes as an aggravated form of the basic
offense of failure to rescue. Some provisions enumerate the persons
under such duty, but often the codes limit themselves to some general
formula such as "a person who was under a special duty to give aid"
(e.g., Polish Criminal Code, Article 211(2)). Other offenses which
bear some resemblance to failure to rescue are failure to give specific
aid to the authorities when requested (Germany, Article 360 no. 10,
now repealed), failure to inform the authorities of the preparation or
commission of certain crimes (France, Article 62(1); Russia, Article
190), and failure to prevent a crime (France, Article 63(1)).
The theoretical background. At the root of almost all questions
arising in connection with the offense of failure to rescue is the
relation between this offense and intentional homicide. It is evidently
necessary to distinguish between the following extreme situations:
(1) A cuts B's throat, with the intention to kill him, knowing that B
will die instantaneously; (2) C fails to rescue D who is in mortal
danger, because C knows that he would seriously endanger his own
life by saving D.
These are two extremes. A should obviously be punished for killing
B; C should obviously not be punished for killing D. But where
should the line be drawn between these two instances? Where should
criminal liability for homicide set in?
The most radical solution is to deny the possibility of killing by
means of a negative act (an omission). This is the solution of French
law, which has the advantage of simplicity. On the other hand, this
procedure lumps together ordinary cases of failure to rescue and much
more serious cases, such as intentional starvation of an infant by its
parents. Consequently, the scope of the provision dealing with failure
68 For Russia, for instance, see Shargorodskii at 243.
to rescue will have to be correspondingly enlarged, and the maximum

penalty increased. The difficulty of distinguishing between intentional
homicide per omissionem and "normal" cases of failure to rescue (the
necessity of making such a distinction is in practice unavoidable) is
thereby shifted from the legislative to the judicial level.
There is a more fundamental objection to the French solution: is
it always possible to distinguish between positive and negative acts?
The matter is too complicated to be discussed here in detail; it is
merely submitted that the answer will vary according to our definitions
of positive and negative acts, of cause and consequence, etc. To give
an example: a doctor is on his way to see a dangerously sick person
who lives in some remote place. Somewhere on his journey the doctor
meets somebody familiar with the local geography, whom he asks
for the best road. The latter maliciously misdirects the doctor, who
as a result gets lost and the patient who otherwise would have been
saved dies. Is the misdirection a positive act? And how would it be
if instead of giving wrong directions the informant had pretended to
be deaf and dumb, or ignorant of the road the doctor ought to have
taken? 64
If, as in most legislation, the possibility of intentional homicide
per omissionem is admitted, it is necessary to draw a line between
intentional homicide per omissionem and failure to rescue.
The most common distinction is according to the nature of the duty
to intervene. In most countries it is accepted that a crime can be
committed by means of a negative act if the offender was under a
special duty to act. For instance, a parent who does not supply food
to a young child in order to bring about the child's death is guilty
of intentional homicide if the child dies as a result of ill-treatment,
because it is the specific duty of parents to feed their minor children.
Relations of various sorts may constitute the basis of such a special
duty. Among several current classifications, one characterizes these
duties as personalized (e.g., between parent and child), fiduciary
(involving an element of trusteeship, such as between officer and
soldier), contractual (e.g., between carrier and passenger), and profes-
sional (e.g., between doctor and person in need of medical help)
relations. 5 Another divides them into obligations based on personal,
contractual, or professional relations, and those arising from anterior
conduct (such as causing a traffic accident without any fault; nego-
tiorum gestio, etc.).6 Failure to discharge such a special duty will con-
stitute an independent illegality irrespective of the question whether
64Cf. Tunc, "The Volunteer and the Good Samaritan," and Honor6, "Law, Morals
and Rescue," in GSS.
65 Kirchheimer, "Criminal Omissions," 55 Harv.L.Rev. (1942) 615 at 622.
66 Shargorodskii at 242. The Ethiopian Code (art. 547-2-b) mentions "professiDnal or
contractual, medical, maritime or other [obligationS]."
it may also be regarded as an attempt to commit another offense per

omissonem.
The solution seems simple enough. But is it really a solution? Why
is it only possible to commit an offense by means of a negative act
when there is an "independent illegality" in the failure to act? Is
this not a rather arbitrary requirement? " And secondly, if the
requirement of independent illegality is accepted, why should the
breach of the general duty to rescue a person in danger not be regarded
as such ?
Originally, the circle of persons who were duty-bound to interfere
in order to save human life was drawn very narrowly. In 1871, an
English court seriously pondered the question whether a father was
under a duty to save his infant child abandoned by its mother,68 and
similar difficulties in the protection of human life against negative acts
were encountered in other countries.
At present, however, there is a tendency to draw the circle much
wider. This is evidenced, for instance, by the inclusion in many
.civilized countries of a person who without fault causes a traffic
accident. 9 It seems that the reason for the inclusion is that such a
person is designated by the circumstances, in a given situation, as the
most suitable person on whom a duty to give aid can be imposed."0
The same principle underlies all provisions dealing with failure to
rescue, but the full consequences of this view are rarely drawn: a
person who sees that somebody is in mortal danger, who is able to
save him without risk to himself, and who fails to do so, knowing
that the person in danger will die as a result of this, is guilty of inten-
tional homicide.
The cogency of this argument is only beginning to be realized."'
67 The classical statement of the "independent illegality" condition is in Macaulay's
Notes on the Indian Penal Code, Note M 53-56. Fundamental criticism in Hall, Gen-
eral Principles of Criminal Law (1960) 190 et seq.
68 Queen v. White, Court for Crown Cases Reserved, 1871, L.R. I C.C.311.
69 Austria: Criminal Code art. 337c; Bulgaria: Criminal Code art. 151(2). The
Netherlands: Road Traffic Law (Wegenverkeerswet) art. 30. Russia: cf. Shargorodskii,
243. United States: Mich.Stat.Ann. § 9 .159 0(c), Iowa Code § 5020.05, California Vehicle
Code § 428a (quoted from Kirchheimer, op. cit. at 628).
70 The strength of this tendency is illustrated by the developments in Russia before
the introduction of the Criminal Code of 1960. Art.156 of the Criminal Code of the
RSFSR of 1926 imposed a duty to rescue on persons who were "duty-bound to look
after the abandoned person. ... Among such persons a minority of the commenta-
tors included persons who were designated by the circumstances (e.g. in a traffic
accident) as the obvious rescuer, but who were otherwise not under any special
obligation (based on family relations, contract, or position) to give aid. Piontkovskii-
Men'shagin, Kurs Sovetskogo Ugolovnogo Prava, Osobennaia Chast' (1955) 1 624;
Trainin, Obshchee Uchenie o Sostave Prestupleniia (1957) 95. This view has more
than once been adhered to by Soviet courts; see Gorelik, Otvetstvennost' za Ostavlenie
v Opasnosti po Sovetskomu Ugolovnomu Pravu (1960) 12-13.
71 Van Bemmelen-van Hattum II (1954) 184-7; Van Bemmelen, Ons Strafrecht
(1965) I 226; Hall, op. cit. 190 et seq. The German Supreme Court expressly recognized
Its acceptance means an extension of the crime of. intentional homicide
at the expense of the offense of failure to rescue. It need not imply
the total disappearance of the latter offense. Some of those who admit
the possibility of intentional homicide (per omissionem) in cases of
failure to rescue have argued that the intention of the potential rescuer
is the decisive factor." Where his intention is directed at the death
of the person in danger, he will be guilty of intentional homicide.
I agree with the usefulness of maintaining a separate offense of failure
to rescue, along with intentional homicide, but it is not the offender's
intention which should be made the distinguishing feature. An offender
who commits the offense of failure to rescue knows that his conduct
will result in the death of the person in danger; nevertheless he
persists in this conduct. Can it then be said that he did not act inten-
tionally with regard to the victim's death? It was not his specific aim
to bring about the victim's death, but he displayed a measure of
indifference which frequently is characterized as indirect intent. Apart
from the dubious usefulness of a distinction based on direct and
indirect intent, it is hard to see why failure to rescue committed with
the direct intention of bringing about the victim's death should be
intentional homicide and the same offense committed with indirect
intent not.
There is ultimately no fundamental difference between intentional
homicide and failure to rescue committed intentionally; the second
offense is essentially nothing but the least serious form of the first.
It is, however, convenient under the present circumstances to retain
a special offense of failure to rescue. Where acts which would avert the
death of the victim, and which it is homicide not to perform, involve
a certain measure of inconvenience or danger to the potential rescuer,
where the chance of averting the death of the victim seems small, or
where the causal connection between the offender's inactivity and the
death of the victim is not abundantly clear, it appears preferable to
punish the offender under a provision less strict than that governing
intentional homicide. The provision which in much legislation estab-
lishes a special offense of failure to rescue suits this purpose."'
the admissibility of a conviction of intentional homicide (Totschlag) in cases of hit-
and-run accidents where the offender was aware of the serious and possibly fatal
character of the victim's injuries; decisions of 31 January 1957, Verkehrsrechtssammlung
13, and of 16 May 1957, Verkehrsrechtssammlung 120.
12 Van Bemmelen, Ons Strafrecht I (1965) 226. The Supreme Court of Bulgaria, in
a decision of 1958, says inter alia: "Consequently, in cases of abandonment, the of-
fender's intention is directed, not at taking the life of, or injuring, another person, but
at not coming to his aid in danger," decision No. 651/1958 of the 3rd Criminal
Chamber of the Supreme Court, Siidebna Praktika na Vurkhovniia Sid na NRB,
Nakazatelni Otdeleniia, 1958, 86, Nakazatelen Kodeks-Tekst, Literatura, S~debna
Praktika (1961) 431-2. A similar distinction is made in Czechoslovak law, cf. Trestni
Z~ikon, Komenta (1964) 542.
71On the problem of negative acts (omissions) in criminal law, see Welzel, "Zur
The close ties between the statutory offenses of intentional homicide
and failure to rescue explain the theoretical importance of the latter
offense. In this respect it is interesting to note where the relevant pro-
visions are located in the various criminal codes. Frequently, the
failure-to-rescue provision can be found in the chapter devoted to
offenses against persons (e.g., Czechoslovakia, Denmark, Russia); in
other codes, however, where it is considered a misdemeanor, it is
usually found somewhere at the end of the code, as an offense sui
generts, unconnected with the main group of offenses against persons
(e.g., Germany, The Netherlands, Norway).
Whereas the offense of failure to rescue a person in grave peril can
be regarded as the principal offense per omissionem, the more general
offense of failure to give aid in an emergency (such as laid down in
Article 330(c) of the German Criminal Code) is the central and basic
offense per omissionem. From a theoretical point of view, the German
formula, which has been retained in substance in the draft for a new
German criminal code (Article 232), seems preferable, although in its
practical consequences the differences from the more traditional failure-
to-rescue provision are probably small.
To this point, our working method has been largely descriptive.
There are modes of conduct which can be united under the denominator
"failure to rescue," "omission to aid a person in danger," etc. This
conduct has been the subject of criminal legislation in a great many
countries. From a comparative study of the various legislative solutions
of dealing with this conduct a fairly uniform pattern emerges. Criminal
law punishes persons who, without incurring serious risks themselves,
were able to help another person in grave peril, and who failed to give
such help.
The most notable exception to the uniformity of this pattern is
offered by the Anglo-American legal systems. The reasons given for
this legislative failure to act are many: the duty to rescue would make
one man the slave of another; the duty is too vague; where there are
several potential rescuers it is difficult to pin the duty on any or all
of them. The basic objection is said to be that the law should not
enforce altruism or legislate morality. 4
Taken at its face value, this objection does not make much sense
Problematik der Unterlassungsdelikte," Juristenzeitung (1958) 494; Kirchheimer, "Crimi-
nal Omissions," 55 Harv.L.Rev. (1942) 615; Hughes, "Criminal Omissions," 67 Yale
L.J. (1958) 590; Perkins, "Negative Acts in Criminal Law," 22 Iowa L.Rev. (1937) 659;
Snyder, "Liability for Negative Conduct," 35 Va.L.Rev. (1949) 446 Dahm, "Bemer-
kungen zum Unterlassungsproblem," 59 Zeitschrift fiir die Gesamte Strafrechtswissen-
schaft (1939) 133.
74 Cf. Gregory, "The Good Samaritan-and Bad," in GSS; Note, "The Failure to
Rescue: A Comparative Study," 52 Colum.L.Rev. (1952) 631; Braas a.o., in Journ~es
Franco-Belgo-Luxembourgeoises de Science Pdnale (1952) 16 et seq.
since the law does not enforce altruism " but merely leaves people
with a choice. Moreover, lawmakers, long before Solon and ever since,
have been legislating morality. The statute by virtue of which failure
to rescue is punished has always been considered as a moral precept
transmuted into a legal rule. In the first relevant provision, Article
998 of the Russian Criminal Code of 1845, the connection betweena the
moral and the legal order is made quite explicit (". . . if he is a
Christian and his heartlessness and lack of care result in the death
of the person left without help, he will be subject to ecclesiastical
punishment as ordained by his spiritual authorities"). In more modern
legal systems the provision dealing with failure to rescue is still con-
sidered as founded upon a moral duty,"' a humanitarian duty," human
solidarity," or socialist humanism.
The thrust of the objection to enforcing altruism and legislating
morality seems to be rather that the law in such cases would be
trespassing, in that it would invade an area which ought to be left to
other forms of social control, or to personal moral judgment, without
any outside interference.
There is no need to deny the existence of such an area. It is based,
in the author's opinion, on the potential danger and utter inefficacy
of law as a regulator of the more intimate and subtle relationtships
between human beings. However, the typical failure-to-rescue situation
does not imply such a relationship. It may very well be the object of
legal regulation. This is in fact demonstrated by the great number of
countries which have a working failure-to-rescue provision."0 Signifi-
cantly, the opponents of such a provision by and large have retreated
from their former position by not contesting any longer the moral
validity of this provision; they now concentrate their efforts on showing
its practical ineffectiveness.
7"C/. Honor6, "Law, Morals and Rescue," in GSS.
78 Shargorodskii at 242.
77Cf. the decision quoted in note 38. The duty to rescue, as contained in the ri-levant
provision of the Code Pinal is a "devoir d'humanit," according to one of the com-
mentators; the provision is directed against "Igoisme excessij et sans excuse."
78 Mentioned in the preamble of article 489 bis (introduced 17 July 1951) of the
Spanish Criminal Code.
79 Cf. the official comment of the Minister of Justice to art. 207 of the Criminal Code,
Trestnf Zikon, Komenti? (1964) 540.
80 The desirability of a failure-to-rescue provision in criminal law was one of the
themes at a meeting of prominent lawyers from France, Belgium, and Luxemburg in
November 1951, cf. Journ~es Franco-Belgo-Luxembourgeoises de Science PNnale (1952).
At that time the Belgian Criminal Code did not contain such a provision. Its intro-
duction was vehemently opposed by some of the Belgian spokesmen, on both practical
and theoretical grounds. Donnedieu de Vabres, however, and other authoritative
French scholars preferred to retain the existing French provision, with some amend-
ments (p. 70). It appears that the French provision was enacted in a hurry (p. 76);
nevertheless the system has worked reasonably well since 1941; cf. the report submitted
to the conference by Levasseur (p. 28 ct seq.).
This objection, even if it were true, is based on a simplistic and

mechanistic view of the function of criminal law, and fails to recog-
nize the latter in its interaction with other factors influencing society.
In the most common case one refrains from criminal behavior not,
or at least not primarily, because of the risk of incurring criminal
sanctions, but because of the conviction that such behavior is morally
wrong, socially unacceptable or both. Criminal sanctions in these
cases serve as an affirmation of the system of moral values prevailing
within a given society; they both reflect and reinforce this system. Since
it is this system of moral values which primarily provides the back-
ground of individual decisions to behave or not to behave criminally,
criminal law normally has only an indirect influence on behavior. The
main question, therefore, is, "should not the criminal law affirm and
reinforce the changed outlook of the community as to what is required
of a person who confronts danger which threatens another"? The
question of the immediate efficacy of such an affirmation, although
valid, is of secondary importance.
In the course of this century many legislators have come to realize
that certain behavior with regard to persons in danger is so offensive
to the moral feelings of a community that the interference of criminal
law is called for. The desirability of at least punishing behavior that
is outrageous in this regard has also been endorsed by Anglo-American
lawyers. 8 The practice of the courts in applying a failure-to-rescue pro-
vision shows clearly that it is precisely against outrageous behavior that
these provisions are employed.82 Experience does not offer any grounds
to fear encroachments on personal liberty. Rather, by channelling
public indignation into the orderly processes of criminal law, it gives
the defendant a fairer chance of justifying himself and explaining his
conduct.
81 Cf. Gregory, in GSS; HonorS, ibid.; Hall, op. cit. 211; and also Note, "The Failure
to Rescue: A Comparative Study," 52 Colum.L.Rev. (1952) 631.
82 An excellent survey of French practice in applying the failure-to-rescue provision
is offered by Levasseur in Journ&s Franco-Belgo-Luxembourgeoises de Science P~nale
(1952) 28 et seq.
1966] FELDBRUGGE: COMPARATIVE SURVEY OF CRIMINAL LAW PROVISIONS
APPENDIX
*Albania, Crim. Code 1952, Art. 157: *Denmark, Crim. Code 1930, Art.
Not giving help to a person whose life 253: Any person who, though he could
was in danger when it was possible to do so without particular danger or
help him, if the failure to help him re- sacrifice to himself or others, fails (1)
sults in his death or injury, is punish- to the best of his power to help any
able by social censure or corrective person who is in evident danger of his
work. life, or (2) to take such action as is
Belgium, Crim. Code 1867, Art. required by the circumstances to rescue
422bis (1961): Whoever fails to render any person who seems to be lifeless, or
or procure aid to a person in great dan- as is ordered for the care of persons
ger, [regardless of ] whether he has who have been victims of any ship-
observed this person's position himself, wreck or any other similar accident;
or whether this position has been de- shall be liable to a fine or simple de-
scribed to him by those who invoked tention for any term not exceeding
his aid, shall be punished by imprison- three months.
ment of from eight days to six months *Ethiopia, Crim. Code 1957, Art.
and a fine of from fifty to five hundred 547: Failure to lend aid to another. (1)
francs or by one of these penalties Whoever intentionally leaves without
alone. For the commission of this crime help a person in imminent and grave
it is required that the offender could peril of his life, person or health, when
have helped without exposing himself he could have lent him assistance, di-
or others to serious danger. When he rect or indirect, without risk to himself
has not observed personally the danger or to third parties, is punishable with
in which the victim finds himself, he simple imprisonment not exceeding six
cannot be punished if on the basis of months, or fine.
the circumstances in which he was Finland, Crim. Code 1889, Chapter
asked to help, he could believe that the 44, §2: Whoever knows that another
request was not serious or that there person finds himself in actual danger of
was no danger [to the victim]. his life and nevertheless fails to render
Bulgaria, Crim. Code 1951, Art. 148 or procure him such aid as would be
(1): Whoever leaves a person, deprived possible without danger to himself or
of the possibility to take measures to third parties, is punished with a fine not
save himself because of his youth, old exceeding three hundred marks.
age, illness, or generally as a result of *France, Code Pnal 1810, Art. 63
his helplessness, in such a situation that (2) (1954): Any person who wilfully
the life of that person may be en- fails to render or to obtain assistance to
dangered, and being aware of this does an endangered person when such was
not render him help, is punished by possible without danger to himself or
deprivation of liberty for a period of others, shall be [punished with im-
up to three years. prisonment of three months to five years
Czechoslovakia, Crim. Code 1961, and a fine of 360 to 15,000 francs].
Art. 207: Whoever does not render the *Germany, Crim. Code, Art. 330c
necessary aid to a person whose life is (1953): Anybody who does not render
in danger or who shows the signs of a aid in an accident or common danger
serious disturbance of health, although or in an emergency situation, although
he may do so without danger to himself aid is needed and under the circum-
or to others, will be punished by depri- stances can be expected of him, espe-
vation of liberty not exceeding six cially if he would not subject himself
months or by corrective measures. thereby to any considerable danger, or
* The translations marked with an asterisk have been taken from existing translations
of the respective criminal codes.
if he would not thereby violate other having to fear danger to himself or
important duties, shall be punished by third parties, is punished, if the death
imprisonment not to exceed one year of the person in need of aid occurs,
or a fine. with detention not exceeding three
Greece, Crim. Code 1950, Art. 307: months or a fine not exceeding three
Failure to rescue. Whoever intention- hundred guilders.
ally fails to rescue another person who Norway, Crim. Code 1902, Art. 387:
is in danger of his life, although he Punishment by fines or imprisonment
could have done so without danger to up to three months shall be imposed
his own life or his health, is punished upon anybody who omits, although it
with imprisonment not exceeding one was possible for him without any spe-
year. cial danger or sacrifice to himself or
Hungary, Crim. Code 1961, Art. 259 others, (1) to help according to his
(1), (2): (1) Whoever does not lend ability a person whose life is in obvious
such assistance as could be expected and imminent danger, or (2) to pre-
from him to an injured person, to the vent, by timely report to the proper
victim of an accident, or a person in a authorities or otherwise according to
situation which directly endangers life his ability, fire, flood, explosion or simi-
or corporal integrity, shall be punished lar accident, which may endanger hu-
with loss of liberty not exceeding one man lives. If anybody dies due to the
year. (2) Punishment shall be loss of misdemeanor, imprisonment of up to
liberty not exceeding three years, if the six months may be imposed.
injured person died and his life could Poland, Crim. Code 1933, Art. 247:
have been saved through assistance. Failure to render aid in a danger.Who-
Iceland, Crim. Code 1940, Art. 221 ever fails to render aid to a person who
(1): Whoever fails to render aid to a is in a situation which directly imperils
person in danger of his life, although his life, although he could have done so
he could have done so without endan- without exposing himself or persons
gering his own life or health is punished close to him to personal danger, is pun-
with simple detention, or imprison- ished with imprisonment not exceeding
ment not exceeding two years, or in three years or detention not exceeding
case of extenuating circumstances with three years.
a fine. Poland, Draft Crim. Code, Art. 211
Italy, Crim. Code 1930, Art. 593 (1): Whoever fails to render aid to a
(2), (3): [A penalty of up to three person who is threatened by a direct
months imprisonment or a fine of up to danger of death, grave bodily harm or
120,000 lire] may be imposed on a a serious disturbance to his health, al-
person who finds a human body which though he could do so without exposing
is or seems inanimate, or a person who himself or another person to personal
is injured or otherwise in danger, and danger, is punished with deprivation of
fails to render the necessary aid or to liberty not exceeding three years.
inform the authorities without delay. Rumania, Crim. Code 1936, Art. 489
Where the above mentioned conduct (3): [The same p]enalty is applicable
of the guilty person results in bodily to [one] who seeing a person seriously
harm, the penalty will be increased; if injured or in danger of his life, does
it results in death, the penalty will be not render him aid, if he could have
doubled. done so without danger to his own life
Netherlands, Crim. Code 1881, Art. or to the lives of other persons, or does
450: Whoever, being witness to the not promptly inform the authorities ac-
immediate danger of life in which cordingly.
another person finds himself, fails to Russia, Crim. Code 1960, Art. 127
render or procure such aid as he could (1): Failureto rescue. Failure to render
render or procure without reasonably aid which is necessary and clearly not
19661 FELDBRUGGE: COMPARATIVE SURVEY OF CRIMINAL LAW PROVISIONS 657
suffering of postponement to a person injured or otherwise in danger of his

in danger of his life, if the offender life, or a person who is or seems to be
knew that such aid could be given with- dead, and fails to render the aid he
out serious danger to himself or other could give or to inform promptly the
persons, or failure to inform the proper proper authorities or their officials, is
authorities or persons about the neces- liable to the same punishment [fine
sity to render aid, is punished with cor- between 5 and 50 Turkish C].
rective labor not exceeding six months Ukraine, Crim. Code 1960, Art. 112:
or with public censure, or entails the Failure to render aid to a person who
application of social-corrective measures. is in danger of his life. Failure to render
[Identical provisions in Armenia, Art. aid to a person who is in danger of his
128, Belorussia, Art. 125, Georgia, Art. life, where it was possible to render
130, Lithuania, Art. 128, Kirgizia, Art. such aid, or failure to inform the proper
124, Tadzhikistan, Art. 136]. authorities or persons accordingly, if
Spain, Crim. Code 1944, Art. 489bis this resulted in the death or grave in-
(1960): Whoever fails to render aid to juries [of the person in danger] is
a helpless person in obvious and grave punished with corrective labor not ex-
danger, although he could have done ceeding six months or with public cen-
so without danger to himself or third sure.
parties, is punished with strict deten- OYugoslavia, Crim. Code 1951, Art.
tion or a fine of from 5,000 up to 10,000 147: Failureto Extend Assistance. Who-
pesetas. Whoever, unable to render aid ever fails to extend assistance to a per-
himself, fails to procure promptly aid son finding himself in direct danger to
from others, is liable to the same punish- life whereas he could have done so
ment. without danger to himself or another,
Turkey, Crim. Code 1926, Art. 476 shall be punished with imprisonment of
(2): Whoever finds a person who is up to one year.

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Good and Bad Samaritans

Introductory remarkl. The parable of the Good Samaritan and the

of Tuscany (1853)', the Netherlands (1881), and Italy (the Zanardelli

All legislation which punishes, in some way or other, failure to

to real danger is not possible danger, but presumed danger. This is

ponement; the latter words have been interpreted as implying, inter

witness, but everybody 'who is present and aware of the danger is

alone." A similar position seems to be taken by Dutch law, where a

stances eventuate in harm."' Indeed, the terms 'particular danger',

Karnej No. 35 (1949), Demokraticzny Przeglqd Prawniczy No. 3, (1949) 53.

specific danger to himself, he consciously refrained from extending aid.

1932, Scuderi, 2 Giustizia Penale (1932) 1133.

In establishing what constitutes "sufficient reason," one may apply a

existence of a duty and its content, are therefore essentially one; it is

France, Italy, The Netherlands, Russia, Spain"7 ). The requirement that

Bearing this in mind, we can distinguish the following levels of

591; The Netherlands, Article 255; Russia, Article 127(2)). Exposure is

to rescue will have to be correspondingly enlarged, and the maximum

it may also be regarded as an attempt to commit another offense per

This objection, even if it were true, is based on a simplistic and

suffering of postponement to a person injured or otherwise in danger of his

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