Research On The Fetal Civil Subject Status And Protection Of The Rights And Interests

In recent years,with the economic and social development and the improvement of consciousness of civil rights,the case of infringing the fetus are emerging in an endless stream,for example environmental pollution,traffic accidents,medical tangle and so on,combined with the hardships to gestate offspringand expensive economic costs,the voicerequiring the law to protect the rights and interests of the fetus is growing day by day.However,the law has not given the fetus the care and attention in China.At present,China is codifying the Civil Code,the time to incorporate the provisions of fetal protection into the civil code is ripe.In this context,the author of the fetus problem in-depth study,hope that my poor opinion on the protection of the fetal rights and interests can help to solve the problem.This thesis is divided into four parts:The first part discusses the civil legal status of the fetus.Firstly,it defines the concept of fetus and human,and discusses the relationship between fetus and person in law,analyzes the development trend of human in law,and advocates the confirmation of fetus in the future civil code.Civil subject status,which is in line with the requirements of the development of the times and the future value of the civil code.The second part discusses the legal basis on the protection of the fetal civil rights and interests,regardless of the ability of the fetus right,the scholars on the theory of fetal protection is divided into the ability of the fetus denied that the ability of the fetus and the right to question the right to question,On the basis of the comparison of various theories,it is argued that the theory of traditional rights and abilities can be properly amended,and the ability of fetching the fetus should be given through the law to confirm the civil subject status of the fetus.The third part analyzes the protection status on the fetal civil rights and interests inside and outside China.Through the study of the three legislative models of civil law countries and the historical process of the protection of fetal rights and interests of Anglo-American law countries and the relevant jurisprudence,this paper compares the current legislation and judicial practice The real situation of the protection of the rights and interests of the fetus,pointed out that China's legislative and judicial practice of the shortcomings of the proposed timely in the legislative level to achieve full protection of the rights and interests of the fetus.The fourth part puts forward the legislative suggestions on the protection of the fetal civil rights and interests in China.In the background of compiling the civil code of our country,I analyze and compare the related legislative proposals of the jurists,and advocate that the legislation should adopt the generalist legislation,general clauses on the protection of the fetal rights and interests are provided in the general provisions of civil law,while the concrete clauses on the protection of the fetal rights and interests are provided inthe specific provisions of civil law.Through study on the conditional theory,This thesis advocate that the material rights of the fetus is not attached to the conditions,and advocate thatthe property rights of the fetus is attached to the conditions,in order to overcome the disadvantages of the conditional theory,to maximize the protection of the fetal rights and interests,To achieve the ultimate goal of civil law for the full protection of people.