Experts interpret the legal problems behind the drowning incident in the boys’ swimming pool. If lifeguards leave their posts without permission, they will be involved in a major liability accident.
● Morally speaking, adults in the swimming pool should pay attention to whether there are children drowning around them, and from the perspective of the traditional virtues of the Chinese nation, if children are found drowning, they should help them in time or ask the lifeguards for help at the first time.
● The swimming pool has the obligation of safety guarantee. Lifeguards or other employees, such as cleaning staff, belong to the internal staff of the swimming pool. The negligence of lifeguards means that the swimming pool failed to fulfill its security obligations; Staff other than lifeguards in the museum are also obligated to help consumers if they find that they are drowning.
● According to the actual situation of life-saving development in China, establish relevant management regulations, improve the swimming safety education and training system, and establish strict examination and supervision institutions to strengthen the supervision of swimming safety education, so as to ensure the orderly progress of safety education.
Recently, a video of "boy drowning in swimming pool" attracted attention on the Internet. The surveillance video showed that a boy accidentally left the swimming ring and struggled in the water and then sank to the bottom of the pool, but no one around him seemed to find anything unusual. A few minutes later, the boy was rescued and eventually died.
On October 9, the relevant departments of the accident site issued a notice: they have quickly rushed to the scene to carry out rescue and after-care work. The swimming pool involved has been shut down, and an incident investigation team has been set up to carry out relevant verification and investigation work. The next step will be to seriously pursue accountability according to the law and regulations according to the investigation.
After the incident, the public lamented, and more people raised questions: Where did the lifeguards go at the time of the incident? Does the boy drown, do people around him have the responsibility and obligation to help? Are the swimming pool, lifeguards and boy guardians responsible for the accident?
The "Rule of Law Daily" reporter interviewed a number of experts to interpret the legal issues behind the incident.
Focus one
There was a drowning. Where did the lifeguard go?
In this incident, the most puzzling thing is that the swimming pool is not a wild river and lake, and it must be equipped with life-saving personnel according to regulations, but why was the drowning incident not discovered and disposed of by lifeguards in time?
The video at the time of the incident showed that although there were lifeguard seats beside the swimming pool, the lifeguards in the swimming pool were not at the scene. The staff of the swimming pool said in an interview with the media that "the lifeguard had something to leave at that time".
When people drown in swimming pools, lifeguards leave their posts or are not on duty, even if they are on duty, which leads to drowning, there have been many incidents this year.
In March this year, a swimming pool drowned in jiangyou city, Sichuan Province. The family members of the deceased checked the monitoring at the time of the incident and found that the deceased had a convulsion in the swimming pool and then stayed in the water until he was rescued by other swimmers, during which no lifeguards appeared in the swimming pool. The staff of the swimming pool said that the incident occurred earlier and the lifeguards had not yet arrived.
Three months later, a man drowned in the indoor heated swimming pool of a club in Zengcheng District, Guangzhou. The lifeguard in the swimming pool bowed his head and seemed to be playing with his mobile phone. He didn’t notice the drowning situation, and it took 9 minutes to rescue him. Finally, the man drowned.
Hu Jian (not his real name), who works as a lifeguard in Beijing, told the reporter that after drowning, the drowning person will get water into his mouth and nose, stop breathing, dilate his pupils, twitch his body and so on in about 60 seconds, and brain cells will start to be damaged and die in 4 to 6 minutes. For the lifeguards in public swimming pools, when setting up observation platforms in standard swimming places (50m×25m), at least four observation platforms, that is, four lifeguards, should be set up according to the division of lifeguards’ observation areas and the principle of leaving no blind spots and dead corners. At the same time, according to different local regulations, if the water surface area of the swimming pool is 250 square meters or less, at least 3 lifeguards should be equipped; If the water surface area is more than 250 square meters, one person shall be added for every increase of 250 square meters and less.
"However, at present, public swimming pools, especially those in some gymnasiums, are not equipped with lifeguards or have insufficient lifeguards." Hu Jian said, "Sitting in a 1.9-meter-high lifesaving chair, you can observe everyone in the swimming pool. During work, you must keep a high degree of mental tension. If you realize that you are tired, you should take the initiative to exchange with the patrolling lifeguards, walk around the end and stay awake. The lives of dozens of people are related to you, and you can’t slack off at all. "
But in reality, not every lifeguard can be so responsible.
As a swimmer, Zhao Dan, a Beijing resident, told reporters that she often saw lifeguards in some swimming venues leaving their posts at will or on the job, but they were "deserting". "Last time I was in a swimming pool, five or six children were swimming in the pool, and one lifeguard was sitting in the stands, while another lifeguard was not far away playing with his mobile phone, which lasted for more than 10 minutes."
Xiong Wei (not his real name), who has been a swimming coach for many years in Beijing, said that the number of people learning to swim in summer increased sharply, and some swimming pool operators and coaches only paid attention to the teaching progress and neglected the safety management. Even if the lifeguards are fully equipped as required, some lifeguards are not responsible enough, and they play with their mobile phones or doze off when they are on duty. "When an accident occurs, if the lifeguards are slow to respond, it is easy to rescue them in time and have an accident."
Focus 2
Is the lifeguard suspected of serious accident?
For lifeguards who are not on duty, many interviewed experts believe that if lifeguards leave their posts without leave, they are suspected of committing a major liability accident.
"There is a causal relationship between the lifeguard’s AWOL behavior and the victim’s child drowning in the sense of criminal law, which is suspected of a major liability accident." Peng Xinlin, a professor at the Law School of Beijing Normal University, believes that lifeguards should foresee that when they know that someone, especially children with limited capacity for civil conduct, is swimming in the swimming pool, the act of leaving their posts without authorization may lead to the drowning of others and the untimely rescue, which will lead to the drowning of the victim. However, credulity can be avoided, resulting in drowning accidents and subjective negligence. From an objective point of view, the rescue of swimming pool belongs to the category of "operation", and the lifeguards violated the relevant safety management regulations during the operation, which finally led to the serious consequences of children drowning.
"The swimming pool has the obligation of security. Lifeguards or other employees are the internal staff of the swimming pool. The negligence of lifeguards means that the swimming pool has failed to fulfill its security obligations. After the swimming pool bears the liability for compensation to the victim, it can conduct internal handling or accountability according to the labor contract or employment agreement with employees such as lifeguards. " Meng Qiang, a professor at Beijing Institute of Technology Law School and director of the Civil Code Research Center, said.
In Peng Xinlin’s view, the operators or managers of the swimming pool obviously failed to fulfill their safety guarantee obligations, and they were not equipped when they should have at least two fixed water lifeguards, and the lifeguards left their jobs without authorization and failed to perform their duties as lifeguards. The swimming pool obviously failed to fulfill its management safety guarantee obligations, so if others were injured or drowned, they should bear tort liability according to law, including compensation for rescue expenses, death compensation, funeral expenses and spiritual comfort. In addition, the swimming pool should also be given corresponding administrative penalties for violating safety management and safety production operations.
Huang Zhong, a professor at the School of Civil and Commercial Law of Southwest University of Political Science and Law, believes that in order for lifeguards to perform their duties more seriously, they should strictly enforce the law, and let relevant units and personnel firmly establish the concept of life first and prevention first through after-the-fact accountability, and weave a good life safety net. In addition to investigating the criminal responsibility of relevant units and personnel according to law, they should also be investigated for their civil responsibility according to law.
"There are two bases for the civil liability of venues: one is based on the contract and the other is based on the infringement. At the same time, citizens should also be encouraged to report such violations of laws and regulations that endanger life safety. Procuratorial organs should also urge sports venues to fully implement the main responsibility of safety management through public interest litigation and form a joint force. " Huang Zhong said.
Meng Qiang added: "While the operators are liable for compensation, the relevant market supervision departments should also punish the operators and practitioners of swimming pools, and order them to perform their duties in strict accordance with the post requirements and work contents, so as to effectively protect the personal safety of consumers."
Focus 3
Do people around you have the responsibility and obligation to help?
The surveillance video shows that at 14: 20 on October 1, a boy turned over with his hands off the swimming ring and then struggled in the water. About a minute later, the boy was still and his body sank into the water. At that time, many adults and children were also in the pool, but no abnormality was found. At about 14: 28, the boy was found and picked up by an adult man on the side; At about 14: 30, many people at the scene began to rescue the boy.
Sadly, the focus of some netizens’ controversy is that the boy has been in the water for nearly 7 minutes. Why did the adult man next to him not find it and rescue it in time? Will the adult man bear legal responsibility for the boy’s drowning?
Huang Zhong believes that morally speaking, adults in swimming pools should pay attention to whether there are children drowning around them, and from the perspective of the traditional virtues of the Chinese nation, if children are found drowning, they should help them without endangering their own safety, or they can ask lifeguards for help at the first time.
"Relief is not a legal obligation, but the law encourages courage." Huang Zhong said that the Civil Code not only provided relief to those who were brave enough to help others for their own damage, but also exempted those who were brave enough to help others from their own damage in emergency rescue through Article 184. These two provisions have positively affirmed the righteous act of being brave in law. Therefore, through publicity and education, it is necessary for every citizen to help those in distress in time and jointly protect their lives without endangering their own safety.
Then, do other staff in the swimming pool except lifeguards have the obligation to rescue?
In this regard, Meng Qiang believes that the lifeguards in the museum certainly have the obligation to save lives, and other staff in the museum, such as cleaning staff, have the obligation to rescue consumers if they find drowning.
The relevant staff of the swimming pool revealed that the boy was brought to the swimming pool by an adult. It is not known who it is. Meng Qiang believes that after children are brought into the swimming pool, guardians must always be under strict supervision, preferably close to protection. If the guardian takes the children into the swimming pool, he ignores them and lets them play in the water alone, which will eventually lead to tragedy. The guardian obviously fails to fulfill his guardianship duties and needs to bear certain responsibilities.
Meng Qiang also reminded that if parents entrust their guardianship duties to others, and the trustee takes the children to swim, and tragedy occurs because they fail to perform their guardianship duties, then according to the provisions of the Civil Code, if the unpaid entrustment contract is caused by the intentional or gross negligence of the trustee, the principal may request compensation for the loss. Therefore, if the cause of the child’s drowning is caused by the principal’s gross negligence, he needs to bear the liability for compensation to the child’s guardian.
Focus 4
How to Strengthen Lifeguard Training
Yin Peigen, a teacher from the Physical Education Institute of Hainan University, who has written "Research on the Relevant Issues of Swimming Safety and Lifesaving Education", told the reporter that at present, the composition of swimming safety lifeguards in China is complex, and most of them are from health clubs and other employees, among whom the proportion of those with professional life-saving knowledge and skills is very small, and the mobility of personnel is large. Most of them are members and coaches of health clubs, and they have not been exposed to professional swimming safety education and training, and their professional quality is not high. They rely on their own personal experience in some ways.
"In addition, the sex ratio of lifeguards is unbalanced, with more men than women. There is no academic requirement for lifeguards, which leads to the low overall cultural level and comprehensive quality of lifeguards, which leads to laziness in behavior and habits, and the increase in risk factor during rescue, which makes swimming lifesaving work have great safety hazards. " Yin Peigen said.
According to Yin Peigen, the lifeguards’ association, which was established in China in the early days, nominally trained and managed all domestic swimming lifeguards. However, in the actual operation, the management system was not perfect, only limited to lifeguards and lifesaving training bases, and the management of lifesaving institutions and lifesaving personnel was limited. Moreover, the training of lifeguards at this stage mainly focused on the lifesaving work in swimming pools, ignoring the training of lifeguards at sea places.
"In the future, I hope to establish relevant management regulations based on the actual situation of the development of life-saving undertakings in China, improve the swimming safety education and training system, and establish strict examination and supervision institutions to strengthen the supervision of swimming safety education to ensure the orderly progress of safety education." Yin Peigen suggested that funds can be raised through some reasonable channels to provide sufficient material guarantee for the construction of life-saving institutions, so as to ensure the normal operation of life-saving training institutions and promote the healthy development of life-saving undertakings.
□ Our reporter Zhao Li
□ Our trainee reporter Ding Yi