Civil Law Protection Of The Fetus' Benefits

Fetus is the unbirth who prsent in the womb, from fertilization to be borned.Humans as fetus generate and grown up in the womb,which is a insurmountable stage.he purpose of protection of the fetus's interests is to make the person who born after grow up in a superior physical condition,can request law provide relief on its damage which produce in the felta stage.Specified legal rules about protectiong of fetus'interests can date back to the Roman law,in moder times,many countries has made significant progress on the protercotions of fetus'interests, the scope and content of the fetus'interests has constantly enriched and expanded,but because of the limited scope of protection,civil protection of fetus'interests still can't meet the actual demand.In civil law theory,both the status of the fetus,and the approach to protect fetus'interests are problems with extensive debate.Morever,the statutes on the protection of fetus'interests in the civil law of our country are scanty.In view of this,this paper uses the methods of comparative analysis and interest meature,according to clarifying the theoretical basis and getting rid of the theoretical obstacles, trying to construct a system of civil protection of fetus'benefits,in order to improve the protection of fetus'interest.Besides preface and epilogue,this thesis is divided into four parts:The first part is the analysis of civil status of the fetus.Starting from the legal meaning of the fetus.then analyzing the difference between social people and fetus as a biological person,its position on the ethics below the social person,but also different form the normal animals and plants,fetus as potential person should be fully protected by civil law.To reality,the likelihood of fetus'infringement is increasing, The concept of eugenic and superior nurture has been popular supported by people and the development of medical technology makes astertain the casual relationship between behavior and damage possible,the legal realistic foundation for protecting the fetus'interests has been provided with.So the fetus should also be included in the scope of legal protection.From the view of relationship between mother and fetus,according to ananlyzing the contact between the fetus and the future person,make a conclusion that the fetus has independent interests on its own,in mere protection of the mother's interests can not protect the fetus'interests,fetus should be treatment as independent subject.but,in modern civil,"person"must be present in the real world and has rational sense.As a conclusion,fetus is being treated as "inhunman".The second part is the analysis of the basic theory in civil law which provides the reason why civil law should protect the fetus' interests,and select the theory of capacity of the right as this paper's view,and propose system conception.In order to breake the contradiction between the reality that fetus should be protected by civil law and the reality thar fetus is treated as "inhunman" in civil law,there are two doctrines,capacity of right theory and law benefits theory."capacity of right theory"claims that in order to protect fetus'interests,civile law should endow fetus the status of being the subject."law benefits theory" advocates that treat fetus' interests as law benefit.Select the theory of capacity of right as the basic theory.Then,with the right capacity,analyzing the theory of "deemed to have been born" and the rationality that unless birth alive as a condition,otherwise fetus wii not have capacity of right,The third part is the ananlysis of several controversial issues from the perspective of tort law. There are four parts, including fetus wether can request compensation for death, wether parents can serve as infringement subject,wether request compensation for moral damage,wether wrongful life appeal shoule be support by court.The forth part is the improvement of fetal benefit protection. At present,civil law of our country compeletely denies legal capacity of fetus'.The only terms about fetus is persisting of fetus'the inheritance share.Imperfect legiastaion bring about the court's disorder in applying law and inconsistent judgments.So our country should select the legislative model of Overall protectionism, provides that" fetus has been born on protection of fetus' interests if fetus borns alive".Protecting fetus'interests fully.