The Protection Of Fetal Civil Rights And Its Issues

With the promulgation and implementation of the General Principles of Civil Law of the People’s Republic of China(hereinafter referred to as General Principles of Civil Law),fetal rights have been formally incorporated into the law,and the fetus has been included in the scope of legal protection.The article states that the fetus has the ability to enjoy civil rights within a certain range,which means that their civil rights are protected by law.However,at the same time,there is a prerequisite for the enjoyment of fetal civil rights,that is,the fetus must be born out of the living body,otherwise it will not have civil rights.With the introduction of the General Principles of Civil Law,the previous controversy concerning whether or not the fetus benefits should be protected by law is to be concluded,but the new rules are followed by new discussions and controversies.This article analyzes the legislative provisions of other countries and regions,compares the legal provisions of other countries and regions,and analyzes the legislative model adopted by China’s General Principles of Civil Law on the protection of the rights and interests of the fetus in the context of the existing legal provisions.The scope of the rights and interests,on this basis,discusses the specific issues in the exercise of different rights of the fetus,and finally puts forward suggestions for the improvement of fetal rights in legislation.In addition to the introduction,this article consists of four parts:The first part elaborates the legislative mode of domestic and foreign fetal civil rights protection.First of all,there are the following three types of analysis of overseas legislative models: the absolutism model,the overall protectionism model,and the individual protectionism model.Then the two theories about the fetal ability to enjoy civil rights—the statutory stopping conditional statement and the statutory dismissal condition statement—are discussed.What kind of legislative model and what kind of doctrine was adopted in the analysis of the General Principles of Civil Law in China,and it was concluded that the individual protectionism model was adopted in China,and that the doctrine of when the fetal civil rights were generated was the statutory dismissal condition statement.The second part discusses the scope of fetal civil rights.The emphasis is on the interpretation of the “etc.”word in the law to clarify the scope of the fetal rights and interests.First of all,it briefly describes the inherited rights and benefits and gifts and rights that have been expressly provided for by the law.Next,the author discusses the rights that she believesit should be included in the scope of fetal protection,and explain in detail the reasons for protection.This article believes that the scope of rights covered by the word “etc.”should include dependent rights,health rights and claims for damages,and discuss the above rights one by one.The third part discusses the concrete realization of fetal rights.Including when each of the above rights was exercised,how the main body of the exercise was performed,and how the right to claim rights had been dealt with in the case of a dead body when the baby was delivered.The claim for compensation for damages has its own particularity and complexity.Therefore,the exercise of this right has been mainly discussed,including the discussion of the time and subject of its exercise,the scope of compensation,and the issue of the limitation of litigation.In the fourth part,the author puts forward suggestions for improving the legislation of fetal civil rights.Specifically,in the General Principles of Civil Law,on the basis of Article16,the scope of its rights and interests is clarified,the guardian of the fetus is stipulated,and the statute of limitation for the exercise of fetal damage compensation claims is perfected.In the formulation of the Tort Liability Code,the rights of the fetal claims for compensation for damages and the specific methods of exercise were once again clearly defined.The definition of the dependents and the scope of the extended dependents were defined in the relevant tort liability laws to achieve more comprehensive protection of the fetal civil rights and interests.