The Theory Of Fetus Rights Protection In Civil Law

Select the problem of protecting the fetal rights to study.because of our country law on the protection of the fetus rights is extremely not perfect.only the inheritance law made provisions about the fetus should be following copies, and the general principles of the civil law on the part of some provisions on civil rights, in addition, there is no other on fetal rights provisions. But the fetal infringement cases often occur in reality, this leads to the rights of the fetus cant’s get very good legal relief, The fetal protection problem is getting more and more attention of scholars around the world,become a difficult problem in the research of civil subject.This article mainly adopted the method of comparative analysis.starting from the theoretical basis and legislative mode of fetal rights, analysis the theoretical basis and legislative mode of other countries.finally found the legal theory terminate in theory of the ability of rights and general legislative model is most beneficial to the protection of fetus rights, this has important theoretical significance to perfect the civil law of our country about the fetus rights protection.This paper is divided into four parts:The first part.the overview of fetus right protection.This part is divided into three questions:the first problem, the legal definition of the fetus; the second problem, the necessity of protecting fetal rights;The third problem, the theory basis of fetus right protection.First of all,base on biology and medicine about analysis of the concept of the fetus,understanding of the different with the legal concept of fetus,analysis the definition fetal legal concept of various scholars,finally conclude my own view.And then discusses the starting point and end point of fetus,clear the fetus time,in order to later legal research.Then,briefly explain the necessity of fetal rights,is mainly due to now calls for higher human rights protection,and the important status of fetus,While the fetus is different from natural person.the fetus is a natural person early state.the development of law need to protect the right of fetus,and the Infringement of the fetus often happen.while the rights of the fetus not well protection,these are major problems. The last analysis the theoretical basis of fetus protection.This article’s point of view is fetus has special ability.because the fetus is not yet born,different from natural person,Is a kind of potential of man,not on the actual meaning of person.Analysis the relations between the fetus rights protection and ability.compare the advantages and disadvantages of each theoretical basis.Conclusion the legal theory terminate in theory of ability is the appropriate theoretical basis.The second part, comparative study on fetal rights protection legislation mode. The first is to list every legislative mode, analysis the different legislative models in represent of the state.found that lack of part of the law in our country. Then,to analyze the pros and cons of each legislative model.Finally find the blanket legislative mode is more suitable for protecting the rights of the fetus.At the same time, the theoretical basis of the legislation mode of blanket is completely right ability theory,corresponding to the theoretical basis in this paper.ln the study found, there are some problems in the blanket legislative mode application, conflicts with absolutism legislation mode of our country, the fetus is not compatible with the civil subject of current law in our country, to achieve it need to rebuild the legal system in our country.but it is not realistic,to solve above problems.proposed to take the measures of legal fiction theory,not the provisions of the obligation of fetus and change the fetal starting point.so the legislative mode of blanket can good practice in our country.The third part, define the scope of fetal rights protection, found in the research on the protection of fetus rights, whether the fetus has the right to life is needed to be solved firstly, after all the fetus is different from natural person,Is not a real sense of the civil law.before birth, life and death undetermined, come to the conclusion that fetus does not have the right to life.Followed by thinking the right to health of fetus,this is related to the fetus property rights relief.Then the interests of property rights is the fetal enjoy.from the perspective of civil law.discuss the interests property rights of fetus from different aspects.lmpaired fetal rights relief about fetal rights can be really protected,it is also need to be studied.in the part of the methods fetus rights civil protection.Finally discusses the components of the fetus civil right infringement and the fetus civil rights claim subject.Because of the particularity of the fetus, the fetus rights are damaged, in fact, the fetus can not take the initiative to exercise their rights, so the law need to provision the body instead of fetal to exercise their right.hope more conducive to safeguarding the rights of the fetus.The fourth part, inadequate fetal rights protection of civil law legislation in China and discussion on improvement. First, the deficiency of the legislation of our country of fetal rights; Second, the improvement of the fetal rights protection legislation in our country. Only inheritance law and general principles of the civil law in our country law about the provisions of the fetus, set aside a certain share in the inheritance of the fetus, actually it is leave but not give, the general principles of civil law just provision that the citizens of civil rights started at born,not description of the baby’s capacity for civil rights.This shows the law of our country is not perfect.and the fetus rights protection legislation blank. For these defects and puts forward some legislative suggestions to perfect our country’s law. Including clear the subject status of the fetus and clear the rights of the fetus.In each relevant laws.put forward some advice on the perfection of fetal rights,hope that play a role of our country the protection of fetus rights in the future.