Research On The Criminal Laws Protection Of The Chinese Fetal Rights

In the background of universal strengthening human rights protection and most developed countries and regions have criminalized arbitrary abortion and other behaviors that violated the fetal rights,it is still common in our country that infringing the fetal rights,infringing the women's rights,and aborting arbitrarily,which reflects our country's legal system,especially the legal system of the criminal code that is in force,pays no respect to recognize and protect the fetal rights.The performances are that,firstly,our criminal law theory generally states that the fetus is not a person in the sense of criminal law,can't be protected by criminal law,and doesn't be protected by our criminal code.Secondly,our criminal code doesn't like the criminal code of German,of Japan and of other developed countries or regions,in which the crimes of abortion and other fetal rights infringement are stipulated.Thirdly,the purpose to recognize and protect the fetal rights is mainly for the protection of the women's health right,which means in the judicial interpretation,the infringing women's rights behavior who is pregnant and caused the fetal rights being infringed in fact,will be identified as the infringing women's health right behavior.Fourthly,while the fetal rights are attached to the women's health right,the fetal rights were weakly protected by our criminal law.Despite this,the judicial practice makes the protection of fetal rights even weaker or virtually ineffective through suspending the sentence to the infringing women's rights behavior who is pregnant and caused the fetal rights being infringed in fact.In the past,with the limits such as contraception technology and so on,it was necessary to sacrifice the fetal rights to ensure the natural persons' rights,such as the rights of sex freedom,reproductive selfdetermination and so on.Therefore,it was not suitable to recognize and protect the fetal rights through criminal law,and interfere the behaviors such as arbitrary abortion and so on which infringed the fetal rights,through the criminal code.Today,with the development and progression of the contraception technology,it is possible to find a balance between the protection of the fetal rights and the protection of the natural persons' rights,such as the rights of sex freedom,reproductive self-determination and so on.Thus,in the background of universal strengthening human rights protection,the developed countries and regions,such as German,Japan and so on,had begun to recognize and protect the fetal rights through the criminal code,and criminalized the behaviors which violates the fetal rights,such as abortion and so on.In the past,our government such as Qing,Beiyang,and Nanjing National had tried to recognize and protect the fetal rights,but felled because of immature contraception technology,indestructible traditional concept and radical reform practices.Today,with the diversification of the contraception technology,with the population problem becomes more and more serious,such as the birth rate stay below the replacement rate continuously,the rate of old people becomes bigger and so on,with the background of universal strengthening human rights protection,it is suitable for our country to recognize and protect the fetal rights through criminal law from the perspective of technology and era.Moreover,recognizing and protecting the fetal rights through criminal law will conform to the psychological expectations of Chinese,alleviate the population problem of the new era,and decrease the incidence of the related crimes.Thus,in the background of mature contraception technology and suitable era,in the situation of universal strengthening human rights protection,in the condition that most developed countries and regions has recognized and protected the fetal rights through the criminal code,our country should follow the trend tightly,learn the advanced experience from the developed countries and regions,recognize and protect the fetal rights through the criminal code in an appropriate time.Specifically,the academic of criminal law in our country should reverse the notion firstly,which states that the fetus is not a person in the sense of criminal law,can't be protected by criminal law,and doesn't be protected by our criminal code.Secondly,our country should revise the judicial interpretation such as the standard of human damage degree and so on,aggravate the criminal punishment to the behavior which infringed the fetal rights and the pregnant woman's rights at the same time,and forbid the use of probation to these behaviors which is intentional.Thirdly,our country should revise the criminal code,recognize and protect the fetal rights,and criminalize the behaviors which infringed the fetal rights or identify them as the statutory aggravating circumstances to the behaviors which infringed the women's health right who is pregnant.Fourthly,on the background of the reproductive self-determination right was fully guaranteed,we should balance the protection of the fetal rights and the reproductive self-determination right,women's health rights and so on,and then,add abortion and related crimes into the criminal code,decrease the number of irresponsible pregnancy and irresponsible abortion thoroughly and effectively.