Judicial Remedy For The Fetus's Right

For clues of the constituent elements of fetus right and based on the materials of cases that existed in China's contemporary judicial practice, this thesis discusses the problem of the protection of fetus's right from the aspect of judiciary. Research on the theory of fetus' s right is a puzzle in China's realm of jurisprudence. In China's legal system, there is only one rule of law of succession involved of the protection of fetus's right. It has also generally been laid aside during the process of the compilation of the civil code. But more and more disputes on the protection of fetus's right are arising in China's present judicial practice. It is clear that China's legislation of the protection of fetus's right is still in gap. However, judicial practice can not ignore the amount of such disputes in our society.At present, most of the scholars don't accept the legal status of the fetus because fetus is not a human being. Fetus protected by law refers to the vital body bred in matrix, including the whole period of zygote, embryo, and fetal, in the meaning of medical science. Although fetus is different from the legal meaning of human being, its right has been affirmed by law in overwhelming majority of countries and regions. There are three legislative models about fetus's legal status:general protection, individual protection, and absolutely deny. In the future civil code, our nation should better adopt the pattern of general protection, which refers to admit fetus's legal status in general.Our present legislation does not admit fetus's legal capacity. Neither are there specific statutory rules of fetus's right protection. The principle of "the judges don't repulse the referee" is the modern society's basic requirements to judicature. At the same time, once there is harm there must be compensation is a basic legal principle. All these require the active attitude towards the relevant dispute for the judicial organs. In judicial practice, the problems of fetus's right protection have been turned on and more and more such cases have been submitted to the judicial organs to deal with. The soul of the adjudicate is acceptability. The key of acceptability is, legality. There should be legal basis for judges to decide cases. When there is a legal gap, the judge should use kinds of legal methods to fill in the gap, in order to acquire the legitimacy.For different fetus's specific right, the judge can adopt different legal ways to remedy. From the legal aspect, the main way for the judge to remedy the fetus's right of health is legal fiction. If the judge denies the fetus's legal status, the reason should only be that the law does not prescribe it. That is to say, there is a legal gap, which should be filled in if the judge wants to admit the legal status of the fetus, then the legal method that the judge can use is legal fiction. Towards the remedy of right of claim of the fetus's cost of upbringing, the judge ordinarily uses distend interpretation. In judicial practice, the living fetus in litigation is ordinarily admitted as the fostered. Then the court expands the range of the fostered group. Yet towards the remedy of fetus's accepting bequeath, the judge mainly can adopt the way of systemic explanation, which refers to explaining the rule which the law of succession rules for the fetus's must keeping part to include the form of bequeath in itself.The so called wrongful birth litigation is a kind of special cases relevant to fetus's right. But in many countries judicial practice, fetus's right and its corporate entity of litigation are denied, because there is no one can decide his or her own birth. The deformity of life is more important than no living. The costs of physical disability are transformed as the compensation for damages of the medical organization's violating the choosing right of bearing. In such litigations, the judge can use more legal ways. The more frequently used way is balancing of interests.Remedy for fetus from the aspect of judicial is a second choice when China's current. legislation lacking the rule of fetus's right protection. The legal methods presents important values. In future, when it is completed in civil code, the system of fetus's right protection can also be completed and the legal methods can present more practical values.