Research On The Protection Of Fetus By Civil Law

The fetus will be the future legal body. In recent years cases of damage to fetus occurred in succession,so the civil law protection for fetus rights is urgently needed. Since the Roman law,all the countries have established certain systems to protect the fetus rights. But along with the new technical and changed social policy,the question of the protection becomes more complicated. But the legislation on this is too simple in our country,and it is difficult to enforce in practice. Thinking of the situation,the author takes this subject as the dissertation,hoping to perfect the legislation and push forward the development of the society.The foreword is to make clear the research significance to this topic, the methods and extents of study in this thesis.This article includes four chapters:First part: the mode and the basis for civil law protection of fetus's benefits. It is the base of the thesis,which discusses three basic questions.Fetus's legal implication,and the basis for civil law protection of fetus's benefits. The author argues that the"civil right"capacity theory: human fetushas limited civil right capacity,which naturally exists in unborn time unless the human fetus is a dead body when the mother is in the parturition time.Second part: specific rights enjoyed by the fetus.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.Third part: Part four discusses the principle of the protection system for human fetus's benefit in civil law. First, compared to behaviors violating other rights, the behavior under discussion has its unique characteristics. Thus the author analyzed the speciality of fetus'right to claim compensation for the harm. Next, the author distinguished different situations of violation to analyze fetus's right of claim compensation for the harm. On the comparative researching basis, the author presents that: 1) in the case that a person's health is harmed before his/her birth, the general principle of right violation could be followed to settle the problem; 2) in the case that the person is killed because of the harm, we can categorize the issue into two circumstances: a. the person dies after birth because of the harm; b. the persons dies before birth because of the harm. thirdly,the author discovers two special situations in the law cases about the human fetus's benefit: (1)the case of"wrongful life","wrongful born"and"wrongful pregnant"in the USA;(2)the situation of parents as the tort-feasor. And in the end of the part, the author probes into the necessity of the compensation for the fetus'as the victim of mental harm and the related exertion issues.Forth part: Legislation Suggestions for Perfecting China's Protection System of Fetus'benefits. This dissertation has analyzed the limitations of the interrelated legislation of China and the insufficiency of fetus protection of civil law in judicial practice as well. In view of this, the author put forward the choice of lawmaking pattern on defending the fetus'rights in the civil law, and in addition, some suggestions on the lawmaking of the specific systems.Brief summary: writer's opinion is summarized and shortcoming as well as issues for further study is listed.