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The pandemic Good Samaritan Clause – a justification, an excuse or a „dead” legal provison?
Abstract
RESEARCH OBJECTIVE: The article aims to analyze the criminal law nature of the so-called the Good Samaritan Clause to determine whether it excludes unlawfulness or guilt in the structure of the crime.
THR RESEARCH PROBLEM AND METHODS: The Author, using the formal-dogmatic method of analyzing legal provisions, using the provisions concerning the structure of the crime adopted in the doctrine, legislative history and a literature review, describes the features of the Good Samaritan Clause. It also seeks to determine whether it is a justification or an excuse, and whether its introduction to the legal system was even justified.
THE PROCESS OF ARGUMENTATION: The Author presents the institution of the Good Samaritan Clause in genere to discuss the course of the legislative process that led to its introduction. Then, it focuses on the analysis of the premises enabling the perpetrator to use this clause, in order to finally examine its criminal law nature.
RESEARCH RESULTS: In the Author’s opinion, the Good Samaritan Clause is an excuse with a temporally, locally and subjectively limited scope of application. It excludes the guilt of the perpetrator – the medic – in a situation where he commits selected unintentional forbidden acts against the life or health of the patient in connection with the prevention, diagnosis, and treatment of COVID-19. At the same time, the Author points out that the discussed clause is an example of a „dead” provision that will not be applied in practice, as the criminal liability of medics may be excluded at an earlier stage of evaluation.
CONCLUSIONS, INNOVATIONS, and RECOMENDATIONS: Due to the pointlessness of the Good Samaritan Clause, the Author, in the context of de lege ferenda conclusions, proposes its removal from the legal system.
Keywords
criminal law ; crime ; justification ; excuse ; COVID-19 pandemic
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