Civil Law Protection Of Fetal Interests

Fetus is the stage that all natural persons must experience in the course of life development. To protect fetus rights is an inevitable requirement for overall-protecting natural person's personal and property rights. At present, many countries show the concern about this problem in their civil law to different degrees. However, in our country, it is only Article 28 of Law of the People's Republic of China on Succession, which regulates fetus' inheritance right. The loopholes in legislation make it difficult or even impossible to well protect fetus rights in judicial practice.The dissertation makes in-depth and thorough study about the relevant issues concerning the protection of the fetus' benefits by adopting the research methods of comparative analysis and case analysis. 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 the fetus' benefits based on the systematic comment to the current theories, the dissertation desires to find a better solution to the question of the protection system for the fetus' benefits in civil law.This article includes four chapters:Chapter One: preface. This part introduces the importance of the protection for the fetus' benefits. .The author points out that the legal concept of fetus is different from that of medical science and the biology. It refers to life before the birth.Chapter Two: The legal regulations of various countries' protection on the fetus' benefits. It introduces the conditions and features of legislation of the countries adopting continental legal system, the countries adopting Anglo-America legal system and our country. We should draw on the experience of the foreign advanced, successful legislation to protect the fetus's benefits better.Chapter Three: The basis for the protecting of fetus' benefits. This part illustrates the theoretical basis for fetus rights protection in civil law. Three theories in the continental law countries are discussed deeply—theory of legal capacity for rights, theory of basis of claim rights and theory of legal benefits. By analyzing the advantages and disadvantages of the above-mentioned theories separately, the author considers that fetus rights protection in civil law should be based on the system of capacity for rights, and fetus shall be considered as having the right capacity with the condition of "born alive". It takes the theory of legally rescinding condition, i.e. a fetus is granted the civil right capacity before he is born, but he will lose it retroactively if he is still born.In the last chapter of the thesis, based on the analysis of the relevant legislation defects in our country, the author puts forward several legislation suggestions for perfecting the system of fetus rights protection. The author insists that the scope of fetus rights should be limited in right of health, right of status, right of succession, right to be bequeathed and right to be benefited by contracts.