On The Fetal Interests Of Civil Law Protection

The increasingly modern danger factors have dramatically risen the qualities of the cases of the compensation for damages about human fetus's benefit in judicial practice. Since 1950's, there took place continuously the law cases of the compensation for damages about human fetus's benefit in many countries. The judicial practice in our country also met with the problem and caused numerous discussion in law, morality. So the dissertation, adopting the method of comparative law, paying more attention to the theories and judicial precedent results about this question in different countries, analyzing the various situation of the compensation for damages about human fetus's benefit based on the systematic comment to the current theories, desires to find a better solution to the question of the protection system for human fetus's benefit in civil law.The whole content contains five parts:Part one is a preface. It introduces the importance of the protection for human fetus's benefit, the researching method of the dissertation.Part two describes the definition of human fetus in law sense and the different situation of the compensation for damages about human fetus's benefit in different countries in different history; then, discusses the three various theories of the protection system for human fetus's benefit in civil law: "civil right capacity " theory, "the basis on claim right" theory and "legal benefit" theory, analyzes the positive effects and the negative effects of the various three theories. Then, the author basically agree with the "civil right capacity " theory: human fetus has 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.Part three discusses the civil right scope owned by human fetus. The author describes the content of the various civil right owned by human fetus: the right of health, the right of life, the right of inheritance, the right of legacy and etc.Part four discusses the principle of the protection system for human fetus's benefit in civil law. First, it introduces the method of the protection system for human fetus's benefit in civil law, which is represented by the theory of the basis on claim right. Secondly, it analyzes the obviously special factors of the claim right owned by human fetus, comparing with otherclaim right owned by civil subject. Then, it analyzes the various situation of the compensation for damages about human fetus's benefit: in the situation of the human fetus's right of health encroached by tortious activities happened before the childbirth period, the compensation for damages about human 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 tortious activities which happened in the unborn time, the compensation for damages about human fetus's benefit can be applied with the principle of right of live in the tort law; in the situation that the human fetus has been dead caused by the tortious activities which happened in the parturition time, the judicial practice usually regard human fetus as a part of the mother's body . At last, the author discovers two special situations in the law cases about the human fetus's benefit: (l)the case of "wrongful life", "wrongful born" and "wrongful pregnant" in the USA ;(2)the situation of parents as the tort-feasor.Part five is a conclusion. Based on the above research result, the author put forward to some suggestion for the civil code of our country in the near future.