Study On The Fetal Capacity Of Civil Rights

According to the theory of traditional civil law, the civil right of a person begins with birth and end with death. Because of the fait restrictions of "truth", the fetus cannot gain the civil capacity or the civil rights. In recent decades, the development of high-tech and industrial expansion, has brought a lot of convenience to people’s life, the risk of fetal growth and development is also facing a significant increase in traffic accident, medical malpractice, environmental pollution and other incidents endless, claimed more and more cases of fetal interests. As the potential civil subject, the fetus plays very important role in the process of human life. The absence of the fetus protection actually is indifferent to the human. Many countries’ civil laws are involved with the fetus protection, but not much and not complete. The protection of fetus in our country is very rare, thus improving the legislation of fetus protection is particularly urgent.The article is about the relevant case of fetal interests from the Chinese mainland by studying different approaches with these cases from the Court, summarized on the protection of fetus’ civil rights about Chinese laws, how to respond to changes in the relationship of social reality. This article holds the view that infringement of the fetus’ interest is different from infringement act to some extent. And recognition of fetus’ status relates to the full protection of fetus’ interests while no recognition of it would certainly cause suffering to infringed fetus and their families. Therefore, the fetus should be endowed with a limited rights, with their subjective status being recognized and enjoying the right of claiming for damage compensation.Besides Preface and epilogue, this thesis is divided into four Parts:The first part is the analysis of whether the fetus should be capacitated for civil rights, find the definition of the "fetus" from the physiology and legal implications, and clear that the fetus as the meaning of the connotation of the concept in law is different from physiology, they cannot be phased, by clear the connotation of the fetus as a legal concept, then points out that the fetus is exist in the matrix within the son also, from the time of conception until birth. Finally introduced the debates on whether the fetus should be capacitated for civil rights and Analysis the view of reason and loopholes come from the opposing views, which are ’Negative theory’ and ’Positive theory’.The second part: through the analysis of the case, pointed out the existing problems in our country on the protection of fetus in the legislative and judicial aspects. The imperfection of legislation lead to series problems, in the judicial practice, the judge cannot find the legal basis during the process of trial, so the similar cases probably have completely different trial results. Although our Succession Act already has provisions to protect the inherited interests of fetus, this kind of protection is very limited and it cannot justify itself theoretically.The third part: mainly talk about the problem which reflected from the second part, points out that because the current law isn’t endow the capacity for civil rights of the fetus, thus lead to the emergence of some problems and reflect the defects in the protection of fetusThe fourth part: the main part of this paper is about how to establish a system of the fetal capacity for civil rights, in addition to the general rules of civil law regulations, establish the civil main body status of the fetus, also to refine the right species in the specific provisions, including the right to health, body, the right to the custody, the legacy and damage compensation claims, as well as the questions of exercise for compensation for damage, makes every effort to achieve the comprehensive protection of fetus rights and interests.