On The Fetus' Right Of Compensation For Damage

Since the fifties of the 20th century, many lawsuits about fetus' compensation for damage have happened in the world, especially in the developed country of legal system. In recent years, the protection of fetus' interests has been concerned by "brain paralysis baby case" that Tianjin Supreme Court concluded and "baby girl born no right arms, parents claim compensation" that happened in Guangzhou. Abroad, the legal provisions about fetus are perfect and rather ripe in most countries. However, our law ignores and omits the protection to fetus' rights and interests, which make the fetus' life and health have no rule to follow when encroached on. It not only violates the people heart that look forward to, but also causes a lot of puzzlement to judicial practice. In order to protect fetus better, we seek fetus' subject status and the rule of compensation for damage.The first part is a preface, which tells us the motive and background of the author to write this thesis.The second part is the base of this thesis, which discusses two questions: the concept of fetus and the fetus' legal status. The author points out that the legal concept of fetus is different from that of medical science and the biology. The author argues that the fetus may be a civil subject and should be a civil subject.The third part discusses the range that the fetus should enjoy the civil rights as a civil subject. Drawing on the experience of the foreign advanced, successful legislation and combining the national conditions in the present stage of our country, the author thinks that the fetus should enjoy health right, life right, property right of inheritance, pure acquisition right of interest and so on.The fourth part discusses the establishment and enforcement of right for fetus' compensation for damage. The author considers that we should give fetus compensation for damage. Compared with general tort, the act of tort has the character of the indirectness, damage interval that facts assert.The fifth part has probed into several special problems correlate with the rightcompensation for damage. Whether the parents can be the subject of tort; whether the negligence setoff principle can be used if the parents have wrongs for damage; whether the compromise of illegal elimination is effective to the injured person and problems about the wrongful birth, the wrongful life and the wrongful conception.