The Discussion On Civil Law Protection Of Fetus Interests

Initial stage of the fetus as a natural life, no one can be crossed. In recent years unceasingly occurred in view of fetus's injury case, also urgently needed to the fetus benefit civil law protection to consummate. Since Roman, a number of countries have set the legal system to protect the interests of the fetus. But with the new bio-technology and modern medical technology development and social policy changes protection of the interests of the fetus has become more complex. In China, this legislation is too simple, with the exception of section 28 of the "Inheritance", fetal protection of the interests of the relevant provisions of nearly non-existent. In my view of this situation, I take to the civil law protection of fetus interests as a degree option papers, hoping that through research, promoting legislation to improve.Introduction, proposed the significance of protecting the interests of fetal research, the author's methodology. The author believes that the protection of the human fetus and reflects the interests of its own related to the interests of potential concern. Not only does it conform to the requirements of the modern concept of human rights, as well as the trend of world development. We protect the fetus is to protect the overall interests of humanity, is to protect the vital interests of every one of us. It reflects the law of the ultimate concern. A vast majority of countries in the modern world has made a provision to protect the interests of the fetus. However, our research also issue almost in the vacuum state. Therefore, the strengthening of the protection of the interests of the fetus is very necessary. Due to the lack of relevant legislation in our country, this paper is based on the legislative experience and research results of a comparative study. The main purpose was to explore the fetus more legal protection of the interests of stylistic arrangement and the design of a system. I will take the basic method for the comparative analysis methods, supplemented by historical analysis and other methods to achieve the purpose. This article includes six chapters.Chapter 1: Overview of the system to protect the interests of the fetus. Recall the history of the protection of the interests of the fetus and the relevant legislation of fetal interests and the theory preliminary introduction. In ancient times the Romans had begun to pay great attention to the interests of the fetus. It also establishes the "interests of the fetus is deemed to have been born" and the series of relevant systems. Europe in the Middle Ages, although certain religious teachings very effectively to the protection of the fetus, secular law still would exclude certain interests of the fetus outside the scope of the protection of legal rights. Since modern Code, the Civil Code with the majority of countries on the protection of the interests of the fetus. Roman civil law tradition inherited civil law countries, has three modes: First, to protect the interests of the whole protectionism admitted that the fetus has rights, as has been born to the fetus. Second, individual protectionism, which does not recognize the fetus has rights, merely on some issues to protect the interests of the fetus. Third, it is absolute, that is, the fetus does not have absolute implementation of the principle of civil rights. When the modern civil law countries of protecting the interests of the fetus to rigidly adhere to traditional theory plight of difficulty, the country has a unique common law jurisprudence system complement the shortcomings inherent in the statute law.Chapter 2: Current perspective on the interests of the fetus and evaluated. Right capabilities theory that the doctrine as its ability to protect the rights of the fetus with the theoretical basis, I believe that the ability to recognize fetal rights for the protection of their interests, not the ideal way. Legal interests of Life theory said that the right to life and not the interests of the law, anyone can enjoy, and it is absolutely right to ownership and so different. The doctrine is opening a brand new perspective, as if the personal interests of the protection of the fetus, or far enough. Extension of the protection of personal rights theory, take personal interests as the starting point, personal interests that includes not only physical but also the rights and interests of personal law. In my view, extending the protection of personal rights theory that can be used as the legal basis for the protection of the interests of the fetus.Chapter 3: The due legal benefits of the fetus. Fetal law should be listed in detail the personal legal interests and property legal interests. Legal interests of the health of fetus are bred to enjoy during the normal physiological function of the development of legal interests. If normal operation after the birth of their physiological functions, the law would mean to their health interests to be hurt. On the fetus, it is the life significant undoubtedly, but it can not enjoy the legal protection of the lives interests, that is the life legal interests. Inheritance legal interest is entrusted by the heirs to inherit property as a possible, a hope. Legacy legal interests, refers to the fetus then legatees inheritance and property interests. Fostered legal interests, refer to accept the provider to cherish, the education legal interests. According to contract to benefit legal interests, the interests of the beneficiaries of some leases to the fetus, I believe that while the fetus was not yet born, however, as long as the fetus to live birth, such contracts are effective.Chapter 4: Fetus's damage compensation claim. Fetus's damage compensation claim is caused by violations to the fetus's benefits. Fetus's damage compensation claim has some peculiarities: Indirect violations. The time of confirm damage to the facts. Time of tort is special. Against damage caused to fetal health after birth, because the actual victim is a man who is still living but health damaged. Damages to the fetus but the main problem then became irregular with a special type of tort theory only. Therefore, the settlement of this issue should follow the general principles of tort. Fetus before birth in the case of death caused by the violations, must divide into two kinds of situations to discuss: before the victim into the fetus to be born after the birth of his birth; fetal death before the victim died before his birth.Chapter 5: Special issues. 1. Parents can become the infringement subject. The major countries and regions agreed that: one's parents if the child were born with the disease, regardless of whether their parent knowing of a genetic disease, this behavior is not responsible for copyright violations. But external causes fetal birth defects, the parents take responsibility, to deal with the differences. I believe that both parents have external causes fetal genetic diseases or birth defects. They have not been identified as the infringement subject. 2."Wrongful birth, wrongful life and wrongful pregnancy". Wrongful birth, refers a fault of the defendant's children are born with genetic defects in the claims. Wrongful life, this is due to give birth to a defendant's legitimate parents with genetic diseases or other birth defects and for the parents to bring their children litigation. Wrongful pregnancy refers based on that because parents have the sterilization surgery negligence or other legitimate operating, birth to a health and a normal child. 3. Stop offending parents promised. In this paper that such a promise because it involves the interests of the fetus, and should therefore be given the constraints, if that promise violated the principle of public order and good morals or obvious damage to the interests of the fetus should be considered invalid. 4. Parents of the damage occurred at fault. Total fault of the rules if applicable, on the one hand, would not be effective to protect the interests of the fetus. Pose a threat to the privacy interests of the other parents and family tension, so it should not be applied.Chapter 6: Considerations and proposals to protection of the interests of the fetus China. Through the analysis of the shortcomings of existing law, there are major flaws in the substantive law. Law suggested that recognition of fetal interests of the health and property legal interests, and adopt personal protection that the extension of legal rights theory, fetus was born alive in the capacity of civil rights, allowing him to institute legal proceedings on the ground who have been harmed the legal interests.Conclusion: China's future civil legislation should recognize the personal legal interests and property legal interests of the fetus. Differentiate cases to protect the interests of the fetus.