The Discussion On Civil Law Protection Of Fetus's Rights And Interests

The law which protected the fetus's rights and interests appeared from the Roman law time. As"the person"in breeding,many countries show the concern about the problem in their civil law to different degrees. The increasingly modern danger factor shave dramatically risen the qualities of the cases of the compensation for damages about fetus's rights and interests in judicial practice. Since1950's,there took place continuously the law cases of the compensation for damages about fetus's rights and interests in many countries. The judicial practice in our country also met with the problem and caused numerous discussion in law,morality. However,in our country,it is only Article 28 of Law of the People's Republic of China on Succession,which regulates fetus inheritance interest.The loopholes in legislation make it difficult or even impossible to well protect fetus interests in judicial practice.Under such circumstances,it seems urgent and important to conduct researches on civil law protection of fetus's rights and interests in China.Introduction,proposed the significance of protecting the fetus's rights and interests. A vast majority of countries in the modern world has made a provision to protect the rights and interests of the fetus. However, our research also issue almost in the vacuum state. Therefore, the strengthening of the protection of the rights and interests of the fetus is very necessary.This article includes six chapters:Chapter 1:The development of protection of fetus's rights and interests.First describes the definition of fetus in law sense, then introduce different legislation about protection of fetus's rights and interests in different countries.Chapter 2:The civil law theories for the protection on the fetus's rights and interests.The second part discusses the civil law theories for the protection on the fetus interests. As the main body of this thesis, the purpose of this part is to explore the theoretical design on Chinese system of protection on the fetus's rights and interests. Three supporting theories----theory of capacity for civil rights, theory of legal interests, theory of tort liability are researched deeply, and analyzed separately for their advantages and disadvantages. In writer's opinion, the biggest shortcoming of the theory of legal interests is that the definition of"legal interests"is too abstract and its content is somewhat too extensive which is not consistent with the preciseness of legislation and not practicable enough. The theory of tort liability is simpler and clearer to be applied to cases, the writer believes there is an apparent disadvantage that itself as a theory is not deep enough and fundamentally could not explain the reason why the fetus interests should be protected by law. In writer's opinion, the theory of limited capacity for civil rights that can be used as the legal basis for the protection of the fetus's rights and interests .Chapter 3:The due legal rights and interests 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. Inheritance legal interest is entrusted by the heirs to inherit property as a possible, a hope. Legacy legal interest, refers to the fetus then legatees inheritance and property interests. Fostered legal interest, refer to accept the provider to cherish, the education legal interest. 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. On the fetus, it is the life significant undoubtedly, but it can't enjoy the legal protection of the lives interest.Chapter 4:Protection of fetus's rights and interests.Explore the fetus's personal legal interests and property legal interests,and differed stages to recognize damages on fetus. In the situation of fetus's right of health damaged by tortuous activities happened before the childbirth period , the compensation for damages about fetus's benefit can be applied with the basic principle of tort law;in the situation that the human being has been dead caused by the tortuous activities which happened in the unborn time,the compensation for damages about fetus's benefit can be applied with the principle of right of live in the tort law;in the situation that the fetus has been dead caused by the tortuous activities which happened in the parturition time, the judicial practice usually regard fetus as a part of the mother's body. Chapter 5:Special issues.1. 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.2. 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.3. 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.4. 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. Chapter 6:Considerations and proposals to protection of the rights and interests of the fetus in China. Through the analysis of the shortcomings of existing law, there are major flaws in the substantive law. Law suggested that adopt theory of capacity for civil rights, and recognition of fetal interests of the health and property legal interests.Conclusion:Chinese future civil legislation should recognize the personal legal interests and property legal interests of the fetus. Differentiate cases to protect the rights and interests of the fetus.