Protection Of Human Fetus's Benefits In Civil Law

The law whichprotected the fetus's benefits appeared from the Roman law time. Along with society's development and the progress, the legal culture is also unceasingly deepening .As "the person" in breeding, fetus gradually are appreciated by various countries in particular the governments that had advanced law construction ."affirming that the fetus enjoys the legal benefits" gradually become the mainstream. This also manifests that the modern humanity pursues its intrinsic life value and respects for human rights day by day. Although various countries all take fetus's benefits seriously, there are still debates in theoretical and in legislation . The high speed development of industry in modern society has brought more risk factors to the society. But the risk factors also caused the quantity of fetus damage compensation cases to increase in the judicial practice. The cases caused much discussion in legislation and morality. But in our country , the legislation is not mature insufficiently , which causes that judicature practice faced with many questions. But our country in the legislation merely stipulated in the peculiar circumstance embryo's right of inheritance is by far insufficient. This article hoped through to embryo benefit civil law protection question research, model overseas to fetus's benefits protection and legal precedent achievement, proposing the legislation suggestion, in order to solve fetus's protection problem.This article approximately is more than 30,000 characters, which divides three parts, the prelude, body and postscript .The first part is prelude, The cases in judicial practice draw out the significance and the goal as well as the research technique that the author study the fetus's benefits protection question.The body is divided into four following parts again: The first part, conditions in legislation and theoretical of protection to fetus's benefits. In this part ,author pays many words to introduce the conception of fetus in legislation and the conception of fetus's benefits. The difference is between them is the basis of the article. Then the author talks about the legislation conditions of civil law countries, related article stipulation of civil law and legal precedent achievement developing process of Anglo-American law from the Roman time to the European state middle ages time as well as the modern time. Summarizes the protection of fetus's benefits history and the present situation.The second part, fetus's civil rights which should be protected. in this part, the author introduces four theories about fetus's rights of claim when"he"is violated. "capacity of right theory ", " law benefits theory", "the personal benefits extension protection theory" and "rights of claim protection theory". After comparing the merit and shortcoming of these theories, the author thinks"capacity of right theory"is the better way to solve the problem about fetus's .benefits. the law should endue fetus civil rights under certain situations, and the civil rights should be spulated specificly and particularly. After discussing whether fetus has the right of life and the right of mental compensation, right to health, right of inheritance, right to legacy and right to be bestowaled ,right to be brought up, right to profits by contracts and right to suit.The third part, the legislation in our country is insufficiency and legal style we should choose. The author thinks the legislation of protecting fetus's benefits, which only contains the 28th stipulation is insufficient by far, It cannot solve many cases which appears in the judicial practice. Because of the special national condition, the large population, also in view of the fact under the special national condition we implement the birth control the national policy. Our country should adopt the individual protectionism style.The fourth part, realization of protection about fetus's civil rights. Act of tort to the foetus is particular,the responsibility ownership is also particular. Fetus is violated to be injured , to death and whether parents can be subjects of tort.Postcript: summarizing the gist,and the article is over.