On The Protection Of Fetal Interests In Civil Law

Since Roman law,civil law all over the world usually has special protection for the rights and interests of fetuses.Before the publication of the General provisions of Civil Law in China,the General principles of Civil Law and inheritance Law provided for the interests of fetuses.Among them,the General principles of Civil Law completely negate the subject status of fetus,and the inheritance Law provides special protection to fetal interests but still negates the subject status of fetus by stipulating the residual portion of the fetus.It is undoubtedly a major breakthrough for the fetus to fall into the logical contradiction of "being a human being and not a human being" until Article 16 of the latest General provisions of the Civil Law has changed the right and ability of the fetus from "not recognized" to "limited recognition",which is undoubtedly a major breakthrough.However,there are still some aspects of the provisions that need to be clarified.For example,whether the fetus has the subject status needs to be clear;when the fetus has the subject status needs to be clarified;whether the fetal rights and obligations should be unified needs to be clarified;Whether the scope of protection of fetal interests should be limited to inheritance,acceptance of gifts,or should be expanded accordingly and what scope needs to be discussed;it is necessary to explore the problem of fetal legal effect recovery in stillbirth,and so on.Through the study of literature,this paper cuts into the study of the civil law protection of fetal interests in China from the perspective of legislative dilemma and judicial dilemma,so as to improve the protection of fetal interests.After research,this paper holds that the law should make it clear that the fetus has a legal status,and the fetus should be regarded as a person without civil capacity;the subject status of the fetus adopts the theory of conditional behavior with release;the fetal rights and obligations should be unified,that is,the fetus can be the defendant.This paper extends the scope of protection of fetal interests,such as life interests,health interests and custody rights,and expounds the typology of legal responses when fetuses are stillbirth.