A Study On The Protection Of Fetal Rights And Interests

With the awakening of the citizen’s right consciousness,the degree of the protection of the fetus’ rights and interests often reflects the development degree of the legal civilization,but the legislation on the protection of fetal rights is more conservative.Before the promulgation of the general principles of civil law,only the provisions on the inheritance of the share of the fetus should be retained.The protection system of fetal special rights and interests created by the general principles of civil law is of great significance,but the right to claim for damages of fetus is still not clearly defined,and the problem of the legal vacancy of fetal damage compensation cannot be solved fundamentally.In practice,whether it is the infringement that causes the fetus to die or maim the dependent person,or is the medical organization’s prenatal examination negligence failure to inform the obligation,even the hospital unreasonable delivery,treatment or direct injury to the pregnancy caused by the birth of the fetus of the disease,disability or deformity,all directly violated the rights of the fetus,and for the handling of the above cases,It is difficult to form uniform rules in judicial practice.In view of this,this article takes the comparative study and the case analysis as the main method,analyzes the current situation of our country’s legislation on the protection of fetal rights and interests,analyzes the cases which are prone to conflict in judicial practice,and concludes with some common cases of fetal rights and interests protection in judicial practice in our country,It is helpful to solve the conflict in the judicial protection cases of fetal rights and interests in China.This paper is divided into three parts,about 26,000 words.The first part is the protection of fetus rights and interests in the current law of our country,reviews the legislative evolution of fetal benefit protection in our country,analyzes the theory view of fetal rights protection in China,and analyzes the current legislation of fetal rights protection in China.The article holds that article 16 th of the general principles of civil law adopts the individual protectionist legislation,in principle it does not give the fetus the ability of civil rights,only when the fetus is born alive,in some cases it is considered to have been born and enjoys the ability of civil rights.Article 16 th the protection of fetal rights and interests can be regarded as a landmark,but in practice the use of this provision is easy to produce differences,the expansion of interpretation will cause the fetus rights and interests ofunlimited expansion,and strict application cannot solve the current increasing,more complicated fetal protection cases.The second part is about the judicial practice of the protection of fetal rights and interests of the referee conflict.In the context of the absence of legislation on fetal rights and interests protection for many years,because of the difference of understanding and understanding of the legal provisions and the understanding of the legal basis of the protection of fetal rights and interests,it causes the determination of the birth time of the fetus,the treatment of the "wrong birth" damages of the fetus,the compensation of the fetus ’ personal rights and interests,The case of conflict in cases where fetal alimony claims arise,in judicial practice,the opposite is often the case,which mainly points out the problem of divergence when dealing with these kinds of cases.The third part is about the rational choice involving the protection of fetal rights and interests of the judicial thinking.This part of the study of various doctrines and the concept of the referee,abstract out the judicial practice in the treatment of the above-mentioned fetal rights and interests protection cases when the judgment: the fetus should take the fetus out of the mother and have vital signs when the birth time;for "wrong-born" cases,the parents should be supported by the Mother and Child Health Act and Tort Liability Act.Wrongful birth "The damage compensation,using the principle of negligence rules,the compensation of the Volunteers in accordance with the degree of negligence to compensate the claimant for the cost of additional expenses after the birth of disabled children and spiritual damage to comfort gold;the right to health,body,reputation,privacy and the right of portrait of the fetus were infringed Directly taking tort liability as the theoretical basis of the right to claim for damages of the fetus’ personality right,and according to the Tort liability law,the subject,the principle of imputation and the scope of compensation are determined.The right to claim of the dependants of the fetus is based on the identity relationship and indirectly damages the fetus as a dependant’s rights,resulting in a claim for compensation right,the fetus is born by itself as the main body of the claim,the fetus is not born can be the right person to exercise the right to claim on his behalf.