Protection Of Fetal Interests Method

Under customary theory of capacity for civil rights, capacity for civil rights of a natural person begins with birth and ends with death. Accordingly it is almost an accepted conception in circle of our legal experts and specialists that unborn fetus does not have capacity for civil rights and does not belong to the civil subjects protected by law. However, with the increasing of encroachment on the fetus and the changing of conceptions on this issue, the demand for protecting the fetus' benefits is more and more emphasized. Although relevant regulations on the protection of the fetus' benefits are stipulated in the law of inheritance, they are quite limited and cannot stand by itself theoretically. On the basis of outcomes in biological and medical research as well as the legislations and practices on the protection of the fetus' benefits in other countries, the writer proposes that capacity for civil rights of a natural person begins with pregnancy and the fetus, as a living natural person, should be protected under civil law for its rights and interests.The thesis is structured as follows:In the preamble, three issues are illustrated.First issue is the definition of fetus in legal senses, which focuses on the differences of fetus in legal senses and fetus in medical senses. The word of unborn person is more appropriate to reflect it.Second issue is the purposes of this thesis, which is to illustrate the background and necessity of protecting the fetus' benefits. In the writer's opinion, the protection of the fetus' benefits reflects attention of humankind on the potential interests of itself as well as is consistent with the trend of development.The third issue is the methods and extents of study in this thesis, which is base on the comparative study among foreign legislations and legal research. Since the aim of this comparative study is to discuss the system design on the legislation on protecting the fetus' benefits, both macro and micro methods for comparative study are employed. On the extent of research, the thesis made reference mainly to British laws and American laws as well as laws of Germany, France, Japan, Italy and Taiwan Province, while legislations of other nations are referred to only in certain aspects.So far as the department of law is concerned, the thesis is confined to Civil Law only, with issues including the legislation, system and theory design and extent of the fetus' benefits as focuses.In the first part of the thesis, the development of protection on fetus's rights is briefed, aiming to explore China's legislation and system design of protection on fetus's rights. Firstly, the historical development of the system of protection on the fetus' benefits particularly the origin and causes for that system are studied. Secondly, systems on the protection of the fetus' benefits of other countries are briefed, that is, main systems stipulated in German Law, American law and British law are introduced and analyzed. Thirdly, the above-mentioned three legislation systems are studied in a comparative method, which is the basis for examination of our legislation.The second part discusses the theoretical basis for the protection on the fetus' benefits. As the main body of this thesis, the purpose of this part is to explore the theoretical design on China's system of protection on the fetus' benefits. Three supporting theories梩heory on 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 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. Making the tort liability as an individual theory is something of initiative in this thesis. Although this theory is simpler and clearer to be applied to cases, the writer believes there is an apparent disadvantage that itself as a...