On Civil Law Protection Of Fetal Interests

With the promulgation of the General Principles of Civil Law,the provisions of Article 16 for the protection of the interests of the fetus have established the basic system for the protection of the interests of the fetus in China.This article adopts the legislative mode of "enumeration + generalization",which gives the fetus the capacity of civil rights under limited circumstances.However,this single and general provision inevitably leads to different understandings of this article by scholars in theoretical circles according to their different legal literacy.In fact,it also causes different interpretations of this article by judges in practical circles,which leads to the frequent occurrence of different judgments in the same case in judicial practice.The number of cases concerning the protection of fetal interests is increasing year by year.It is urgent to make a clear,appropriate and authoritative interpretation of Article 16.Therefore,starting from the current legal norms,with a development perspective,combined with legislative spirit and human rights protection consciousness,this paper explores the theoretical basis of fetal interest protection,compares and analyses the academic works of various scholars,and explains Article 16 of the General Principles of Civil Law in line with the civil law system,meet the needs of the times and embody the value of human rights.Based on the background of the compilation of the Civil Code,it provides legislative suggestions for the improvement of the system of protecting the interests of the fetus in China,with a view to providing all aspects of civil law protection for the fetus.In addition to the introduction and conclusion,the text is divided into four parts:The first part is the concept of fetus.Firstly,this part lists various conceptions of fetus in the field of illegal science,and sorts out the definition of fetal initiation period in dictionary explanations so as to keep up with the development of science and the needs of the times.Then it compares the four mainstream concepts of fetus in the field of analytical science to seek the theoretical basis of law for defining the legal conceptof fetus.Finally,based on the above analysis,the legal concept of fetus is defined as follows: fetus refers to all forms of life with the possibility of developing into a natural person through natural reproduction or artificial assisted reproduction technology,except frozen embryos.The second part is the civil rights ability of the fetus.Firstly,this part elaborates three doctrine views on the recognition of fetal civil rights capacity in academic circles,namely affirmative theory,negative theory and special rights capacity theory.Then it makes a comparative analysis of the three theories,and draws the most appropriate conclusion that the theory of partial right ability in the theory of special right ability is the theoretical basis for explaining this article.Then according to the theory of fetal partial capacity for civil rights,this paper discusses that the developed system of capacity for rights provides theoretical space for the construction of partial capacity for rights,and the feasibility and necessity of partial capacity for rights.Finally,the specific content of personality and property rights in some civil rights enjoyed by the fetus is analyzed.The third part,the scope of protection of fetal interests and the interpretation of the provisions of protection of fetal interests.This part first analyses the fetal interests that should be protected by legislation: fetal material personality interests,spiritual personality interests,property interests.After analyzing the commonness of inheritance and acceptance of donation clearly listed in the legislation,it is concluded that the nature of the interests of the fetus clearly protected by the current legislation is that the inherent interests of the fetus and the pure property interests.Finally,the article 16 of the General Principles of Civil Law is interpreted in the light of the above analysis: "Waiting for the interests of the fetus" includes the personal interests of the fetus and the pure property interests;"Being regarded as having the capacity of civil rights" means that the fetus has the capacity of civil rights corresponding to its personality elements;when the fetus is delivered from the dead body,the civil rights of the fetus are retroactively terminated,but the fetus' s capacity of civil rights is terminated in the past.Personal interests do not disappear retrospectively,but only when the fetus dies.Part IV: Improvement of fetal interest protection system.This part first discusses the ways to establish the remedy for the damage of fetal interests.When the interests of the fetus are infringed and the fetus is delivered in vivo,whether the fetus claims for tort damages before or after delivery,it is considered that the fetus has the capacity of civil rights from the time of fertilization,and the current legal norms shall be applied by reference.If a dead fetus gives birth,it is necessary to distinguish the direct and indirect effects of natural fetal death from infringement death and infringement,and adopt different ways of damage relief.Finally,it discusses the determination of the guardian and legal agent of the fetus and the commencement of the limitation of action in the specific exercise of the claim for fetal damages.