On The Judicial Protection Of Fetal Rights And Interests

In recent years, legislations of many countries have been dedicated to the protection of fetus rights. But according to the stipulation of Article 9 of General Principles of the Civil Law of the People’s Republic of China that a citizen has the capacity for civil rights from birth to death, so fetus’ civil subject status is not admitted legally, which leads to absent legislation on fetus rights protection. Therefore, currently fetus rights are mainly protected by juridical adjudication in China.Focusing on various kinds of fetus rights-related dispute cases in China, this paper adopts case analysis method as primary demonstration method to discuss juridical protection condition of fetus rights. In addition to introduction and conclusion, this paper will make discussion in five chapters as follows:The first chapter is the discussion of two current fetus rights protection theories, “legal capacity theory” and “legal interest theory” which have impact on judicature. With comparative analysis of “legal capacity theory” and “legal interest theory”, it is concluded in this chapter that these two kinds of standpoints provide theoretical support to judicial protection for various kinds of fetus rights disputes respectively, with great guiding function as well as certain limitation in application;Juridical protection of fetus personal injury is discussed in the second chapter. Characteristics and liability elements of personal injury disputes are summarized with some cases, and legal basis and compensation scope of personal injury and damage compensation are discussed as well. It is concluded in this chapter that juridical protection of fetus personal injury disputes in China regards fetus live birth as premise, newborn natural person as civil subject, provides relief to the injury during fetus period, and “rights vorwirkung theory” is applied in practical judgment;The third chapter is about the posthumous child alimony disputes, namely the juridical protection of posthumous child’s rights to be fostered. The compensation issues of posthumous child’s alimony under different situations and primary basis of court supporting alimony compensation are analyzed together with cases. As no specific law, trail and judgment of posthumous child alimony disputes is the process of court find laws in case judgments by various means. With diverse judgment reasons, there are issues of disunity and uncertainty in juridical protection;On basis of juridical protection of fetus property inheritance, donation rights, typical cases of fetus property inheritance and donation rights are discussed respectively in the fourth chapter. And this is also extended to fetus’ s bequest acceptance issues, to make conclusion of all kinds of points of fetus rights protection in juridical judgment. It is concluded in this chapter that, no matter which judgment method is adopted, its purpose is to bring fetus rights into legislation protection scope of “human” rights. Application of “legal capacity theory” tacitly admits fetus’ civil subject status in certain circumstances;The fifth chapter mainly discusses the legal issues of “improper birth” damage compensation disputes, including parents’ option of sound child rearing, compensation claim right and compensation scope. It is concluded in this chapter that, though “improper birth” doesn’t cause infringement directly to fetus rights, as a special type of fetus rights protection, dispute damage compensation is mainly for relieving material and psychological inconvenience and trouble of parents and their own, which shall be supported by court.Through classified discussion of fetus rights-involved disputes, fetus protection methods and existing problems of current juridical practice in China are summarized. In conclusion part, the author believes, under circumstances with absent legislation of fetus civil subject status, that judges try every means to find theoretical basis, and conduct juridical protection of fetus rights through case judgments is a temporary solution while perfect legislation is the basic countermeasure to solve fetus rights protection problems. When Civil Code of China is being drafted, suggestions are offered for perfect legislation from juridical perspective.