Concerning The Interests Of The Fetus Civil Law Protection In Our Country

According to China's "Civil law" provisions of article 9,China's civil capacity for civil rights begins with birth and end up with death.According to the regulations,the fetus is not born,it doesn' have the status of civil subject.but this does not mean that China's ignores the protection of the interests of the fetus."Inheritance law" Article 28 first proposed the "retained fetal inheritance share",other regulations like "Child protection law","Labor law" protect the mother and fetu's interests from different angles and degree.But with the change of the society,a growing numer of new situations occur during the fetal development,the successful birth of the fetus is facing more and more difficulties.Because the fetus itself does not have the capacity for civil rights,there is no individual remedy when their rights are violated,only through the mother's relief to reflect our country's attitude to the interests of the fetus.And it far excceed the judical practices' power to deal with the related cases of the fetus interests because of it's non civil reality.After the introduction of the “Civil Law”,the absolute mode's shortcomings are obvious increasingly which need reform and innovation.While the "General principles of civil law" indicated that our country admits the fetus has civil rights in special field by using imcomplete listing and summering protectionism mode after being promulgated,which is different from the absolute mode.This legislation makes China a break up with the past absolute mode,efforts to protect the interests of the fetus has been significantly improved.But even the change of the regulations,"General principles of civil law" Article 16 not bring a tremendous impaction on the civil law system of our country which has been built.On the contrary,like most countries in the world system to protect the interests of the fetus,Fetal rights ability intends to combine the practice,promote the construction of the rule of law in China,and it also shows the China's humanistic care and attention to the spirit of rule of law.However,as the article 16 of the general principles of civil law is published,the theoretical circles and the judicial practice circles pay close attention to the imitation of fetal rights and capabilities,and they actively put forward suggestions for it's imperfections.This paper aims to provide a useful reference for the improvement of the protection of fetal interests in China by comparing the existing theoretical achievements and the protection system of fetal interests in other countries and regions.The first part is the basic theory of fetal interests.This part is mainly divided into two levels,the first level is the basic theory which is related to the fetus including the fetal definition and fetal standards;the second level is the description of the basic theory about the interests of the fetus,including three aspects,the interests of the fetus,fetal definition,classification of historical evolution and the protection of the interests of the fetus protection theory.Through historical research methods,comparative research methods and literary research methods,we will make a theoretical basis for fetal interests protection and draw forth the necessity of giving fetus right capacity in China,and it also lays a foundation for improving the protection system of fetal interests in the following chapters.The second part,the analysis of the necessity of the fetal rights inhibition.Firstly,analysing several sets of concepts which is related to fetal rights inhibition to lead to the real meaning of right inhibition and fetal inhibition.Next,the author will sort out and analyze the idea of the theoretical scholars'.Through the judical cases to analyze the neccessity of giving birth to the fetal rights to demonstrate our "general principles of civil law" Article 16 to give the fetus the legitimacy of power ability.The third part is the comparative study of the protection of fetal interests.This part is divided into two plates.The first section through the part of the civil law countries(such as Germany,France,Japan,Austria,etc.)on the protection system of the interests of the fetus protection,based on different pattern classification comb;the second section is the comparative study on the part of Anglo American law system of protecting the interests of the fetus to analyze them to find practical suggestions for perfecting the protection system of our country at present in the interests of the fetus.The fourth part,analyzing the article 16 of China's "general principles of Civil law" and putting forward some legislative proposals.This part is including two levels.First,according to China's "general principles of civil law" article 16 from the characteristics of legislation and content,compared to the previous legislation to see if there is any progress and other aspects of the detailed explanation,and then summarizing the imperfections of "general principles of civil law" article 16,combined with China's the ability of quasi legislative background of fetal rights system and the framework of the existing civil legislation to put forward specific legislative proposals for the "general principles of civil law" article 16 to aim to make the protection of fetus' interest can be more complete.