On The Civil Law Protection Of Fetus From The Perspective Of Personality Rights

According to the traditional theory in civil law, the fetus has no capacity for civil rights, and can't be protected as a civil party. However, being fetus is an indispensable stage that every human being must experience. It is so important that the fetus'interests have been affirmed and protected by various countries and regions in legislation and judicial practice. This paper uses personality right as the point of departure, emphasizing that we should go back to the natural persons'ethical characteristic, and protect the fetus'interests from the perspective of protecting natural persons'ethic value.Besides the introduction Part, the thesis is composed of five chapters as follows:Chapter I reveals the origin and generation of the civil right capacity system through the introduction of the historical evolution of legal personality. Germany Civil Code regulates the civil right capacity in the form of positive law, which makes the ethical characteristic escape from legal personality. Since then, legal person has the civil right capacity, however, bringing theoretical perplexity in the study of fetus'civil protection.ChapterⅡgives introduction on the relationship between the human rights and personality rights as well as the development of personality rights in constitution. With the analysis on human right and constitution's attitude towards fetus, it is expounded that the protection of the fetus'interests is to protect man's ethical value, which is to one's own protection. ChapterⅢprovides the theoretical basis and legislation of the civil law protection of fetus'interests and reveals that the development of personality rights is the inevitable trend in the progress of civil law. It is also made clear that perfecting the civil law protection of fetus should be included in the establishment of personality right system.Chapter IV presents the status quo of the legislation and jurisdiction on fetus'protection in our country. Although complete regulations on the fetus'protection are still absent in our country, quantities of cases exist which already admit the healthy rights, the rights to be raised, the rights to be donated and the contract beneficial rights of fetus.Chapter V suggests that the future civil code in our country should adopt the mode of general protectionism. That is– fetus should have rights to life. When conflicts occur among fetus'life rights, mothers'rights and national or public rights, balance should be pursued carefully among the three parties based on the specific national conditions.