| Fetus period is the primary stage of growth of human beings and it is also the necessary process. Therefore, the protection for the fetus is also the protection for the human right as well as property right. With the rapid development of society, the fetus suffers kinds of pollution and harm from the reality because of environmental pollution, medical accident, transporting accident. This kind of accident often takes place. However, there is not any legislation about the issues in China. Except the regulation of the heritage interest of the fetus in the 28 term in Heritage Law, there are no other legal rules. Since there is no law for judicial practice because of the shortcoming of law, the right of fetus can not get the effective protection. Not consider the bad impact of the scientific and technical progress as well as social industrial development on the fetus, if our legislation does not give the compensation plea right for the harm of fetus, plea right of bringing up, the universal promotion of the making of the citizens as well as social stability and development will be affected. Interested in this issue, the author chooses the protection for fetus right as his thesis and hopes to provide aid for the obligee and offer practical and theoretical support for the legislators.In the introduction, the author analyzes the legal status of the fetus, thinking that it is the verification of the civil right competence of the fetus. There are two kinds of right competence theory including general protection and specific protection. In the Anglo-American case law, people in each country verify the right of fetus to carry out the specific protection based on the prejudication. However, the scholars in China support the general protection theory. There is no rule of general protection as well as specific protection in Chinese law. The reason why our legislative organs do not apply for general protection is the existence of family planning policy as well as constraint abortion. In addition, there is no protection for this right of the fetus in Chinese legislation. Therefore, it is urgent to enforce the research on fetus right due to the limitation of the legal regulation.This thesis does the comparison research on foreign legislation experience and law research outcome. The author discusses the right the fetus should enjoy and verifies the imminence of the relevant right. The author applies for the comparative analysis and theoretical analysis means.There are five parts:The first chapter illustrates the personality of the fetus. Starting from the change of the definition of personality, the author discusses the fact that though the fetus is not a legal person without personality right, he participates in the civil events passively in the modern society. Referring the Roman rule all the right is set based on the person in Roman times, the fetus should enjoy the relevant right to adjust the development of the society as well as the progress of legislation technique and theory. Therefore, law should give the fetus the relevant right competence and verify the personality of the fetus in law. This also conforms to the principle as long as it is beneficial to the fetus, the fetus should be considered to have been born in Roman law. In addition, the author illustrates that the human right extension protection theory can be applied as the gist of the law theory for the protection for fetus from life law benefit theory, enterprise schism theory for protecting the benefit of fetus as well as human right extension protection theory. This creates the theoretical basis for giving the relevant civil right to the fetus. The author illustrates that the fetus should be given the related lawful status and the right regulated in law from physiology analysis, nomology analysis, ethic analysis and economic analysis. According to the above analysis, the author gets the conclusion: we can regard the fetus as the special legal subject in civil law.The second part covers the practice of the civil law in fetus protection in each country. There are three kinds of patterns in fetus protection in civil law in civil law system: the first one general protection, that is, to admit the fetus has the right competence and it is the subject of law. The protection degree can be divided into two kinds: concept of Roman law, thinking that right competence starts from the pregnancy, not from being born; the other is the general protection of modern civil law, thinking that the fetus is given the right competence before the fetus was born. The second one is specific protection, that is, enumeration, referring to that it is not admitted that the fetus has the right competence or it is not the subject of fetus. However, the fetus has right competence in certain aspects. The third one is absoluteness, not admitting the fetus has the right competence or the qualification of enjoying right and thus it is the civil subject. The third pattern is applied by Chinese present pattern. However, it has been the obstacle of the judicial practice in China since it does not conform to the inner spirit of law. Anglo-American law system makes up the shortcoming of the statute law.The third section covers the judicial obstacle brought by the present situation of fetus protection of China. Based on the regulation of Chinese General Rule of Civil Law, the fetus has not the right competence. However, in order to take after the interest after it was born, necessary protection is given to the fetus. The 28 term in Heritage Law protects the heritage right of the fetus, not gives the right to the fetus. However, this is the only one regulation in Chinese law to protect the right of fetus. At present, the reason why the legislators do not give the right to the fetus is that they consider the policy as well as traditional moral concept. For instance, this shortcoming in legislation results in a series of obstacle which brings in some unstable factors to the society. The blankness of the regulation can not embody the justice and fairness of law and results in many inharmonious notes in creating harmonious society.The fourth section covers the civil law system of fetus protection in China. The author analyzes there kinds of legislation concepts. No matter from the judicial effect or the legislation concept, general protection means is the most advanced legislation stylistic rules as well as the necessary choice for the civil law development in each country. However, for the reality of Chinese present law, this rule can not be proved in theory or concept. Therefore, the general protection pattern is perfect, but it does not applicable for Chinese situation. It is the development direction of monocracy in China. In the current state, in order to protect the relevant interest of fetus, the specific protection pattern is applied. The civil law system of China at least has the following regulations for fetus right: 1. health right; 2. plea right for harm compensation; 3. honor right as well identification right; 4. heritage right for property as well as being donated right; 5. plea right for bring up.The fifth section covers the contradiction between the living right of the fetus and the choice right of mother. In modern society, there are two kinds of sayings for whether the fetus should enjoy the life: affirmation theory and denial theory. These two opposite concept means the opposite of the legislation concept for whether the living right of fetus should be approved and protected. This first covers the abortion which is the issue that which one is priority between the living right of fetus and choice right of mother. Most countries in modern society respect the living right of fetus, thinking that once the fetus appears, no one including the mother has no right to deprive the living right of the fetus. However, different countries have different social tradition and ethic concept. To great extent, abortion is not only a legal issue, but also a social and political issue. It is not determined by the legal concept but the policy of the country as well as the acceptance degree of the citizens.
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