Research On Criminal Law Protection Of The Fetus

Fetal criminal law protection mainly relates to whether and how to protect the life andhealth and well being of the fetus. Although Fetal is not a legal "person", it is the natural life,and it is worthy of criminal law to protect. Along with the increasing fetal life and health ofinfringement cases, the fetus protection of criminal law have become a problem be solved.Violate the act of fetal life and health has not been regulated by criminal law, highlights lag ofChina’s criminal law, show that China’s criminal law in the protection of the citizens’ personalrights, notably absent. At present, as our country criminal law scholars study to analyze thespecific crime of the fetal protection, it is lacking in systematic research. The article deeplyanalyzes the plight of the current our country criminal law to protect the fetus, and build thefetus protection of the criminal law theory foundation and the way to solve.The article is divided into five parts, more than forty thousand words:The first part is the basic problem of criminal law protection of fetus. This part aims atclarifying the concept, legal nature of the fetus and the scope of criminal law protection. First,by fetal the cognizance of the beginning and the end stage, defines fetuses as has more thaneight weeks pregnancy but not fully reveal the tire body of the body. Second, determine thatthe fetus is objective existence of the special life, the life and health of the fetal is shall give toprotect. Third, clear scope of criminal law protection for the fetus fetus’s life and health.The second part is the legislative inspection of fetal protection. This part aims to indicateto the separate legal protection of the baby’s life and health is the tide and trend of the world.First, comparative criminal law to protect fetus outside and within the domain of laws andregulations. And explain that the fetus is lacking of criminal law protection in our country.Second, through compare the domain the fetus inside and outside legal protection of humanrights law document, the constitution, administrative law and civil law, establish the wholethinking of fetal legal protection.The third part is the current dilemma of fetal criminal law protection. This part aims toanalyze the current difficulties and disputes, thus highlighting the article writing significance.First of all, the root of the trouble is that in the fetus whether belong to the dispute of "people",emphasized the fetus is not a "man", the life and health can also become a criminal lawprotection of legal interests. Secondly, by analyzing the inside and outside the domain of fetal life and health violations of criminal law theory and criminal charges differences disputes,arguments against fetal life and health behavior does not belong to the crime of "people",cannot be regulated by criminal law in our country, belongs to the innocent.The fourth part is building the foundation of criminal law protection of fetus. This partaims to build the theory foundation of criminal law protection of fetus. First, the theoryfoundation includes jurisprudence basis and criminal law basis. Jurisprudence is based onman’s self will protect human life with national function requirements，social ethics requirerespect for life. Function of criminal law includes the purpose of criminal law, the function ofcriminal law, nature of crime, scope of criminal penalties and the penalty. They show thatbehavior which is harm to the fetus is a serious social harmfulness, and it should be punishedby law. Second, the practical basis mainly includes protecting the fetus is the need of socialreality, the requirement of society, the requirement of building socialism rule of law, and itdoes not conflict the family planning policy.The fifth part is the build path of criminal law protection of fetus. This part aimed atproviding specific path, though our country current criminal law to protect the currentdilemma of the fetus. First of all, dispute several kinds of fetus viable path the rebuttal of thecriminal law, opposite argument best path. Secondly, from the criminal legislation ofadvanced, the modesty of criminal law, the purpose of penalty, the portability of criminal law,positive argument best path. Finally, propose setting up "the crime of forced abortion" and"the crime of deliberately harm the fetus", to protect life and health of the fetus. And explainsome behaviors do not belong to the crime, such as negligently injure the fetus, mothervoluntary abortion behavior, state personnel on duty behavior.