Research On The Protection Of The Fetal Interests By Civil Law

Article 16 of the General Civil Law embodies the necessary importance of the law for the protection of fetal interests,and the degree of attention has also been strengthened.However,from the point of view of legal provisions,it is still limited to the protection of fetal interests involving inheritance and acceptance of gifts.However,the protection of fetal interests is not limited to this,and the other civil rights protection of the fetus still lacks specific legal basis and needs to be further improved.Therefore,the civil law protection of fetal interests still needs to be further studied.To explore the civil law protection of fetal interests,the scope of the fetus's interests is defined and determined:the three interests of the fetus's material personality interests,spiritual personality interests,and property interests all require the necessary protection of the civil law.The material personality interests of the fetus are the inherent rights and interests of the fetus such as the right to life,health,and physical rights;The personality related to spirituality,such as portrait rights and privacy rights,is the spiritual interest of the fetus;The property interests of the fetus are related to the property of the fetus,including the right to compensation,inheritance,and pure interest rights.Secondly,the theoretical basis of the civil law protection of fetal interests needs to be further clarified.Regarding the protection of fetal interests,there are four main theories in the civil law theory:the theory of life and legal benefits,the extension of personal rights protection,the right ability,and the theory of conception.Among them,the right ability is the mainstream point of view,and it has also been adopted by the "General Civil Law".In order to further improve the civil law protection system of fetal interests in China,we can draw lessons from foreign relevant legislation models.Civil law countries have three types of legislation,namely,the general protection of fetal interests,the individual protection model with individual enumeration methods,and the absolute non-protectionism model that denies fetal civil rights.Because of the tradition of case law in common law countries,the protection model of fetal interests is different from that of civil law countries.American case law has changed from not recognizing fetal interests to fully protecting fetal interests.The United Kingdom has established special legislation to protect the fetus in progressive development and there is no jurisprudence to find.Although individual protectionism has been adopted in legislation mode,the relevant provisions are still unclear.There are still some problems in the civil law of our country about the foetus's legal status and the foetus's civil rights protection.The protection of fetal interests in our civil law needs to be further improved in terms of the legislative model and the specific institutional content.This paper puts forward specific suggestions for establishing the fetal property benefit protection system,the system of prospective legal representatives and guardians,the right to request for inheritance,the right to custody of the fetus,and the right to compensation for mental damage.