Civil Law Protection Of The Fetals' Interests

Before the sixteenth article of the general principles of civil law was promulgated,the twenty-eighth article mentioned in the civil law of the people's Republic of China mentioned that the inheritance benefit of the fetus should be protected.The law of succession stipulates that the inheritance share of the fetus should be kept when the decedent is divided.If the fetus is living and healthy growth,this part of the baby's share of inheritance by the legal agent for safekeeping;if the birth is living,but then died,even if only survived for a second,it also shows that the fetus has become a natural person to be preserved is the inheritance share after the death of their personal property,this property is the baby's heritage,in accordance with the "law of succession" provisions by their heirs inherit;if the birth is dead,then reserved for his inheritance share has no meaning,this part of the property should be returned to the decedent's estate is to be in accordance with the statutory succession.At the same time,the ninth article of the general principles of civil law stipulates that citizens enjoy civil rights and bear civil obligations according to law.That is,citizens have the capacity of civil rights,and the right ability begins with birth and finally dies.Obviously,the fetus has no capacity for civil rights,not civil subject,no civil rights,but also gives the "inheritance" of fetal inheritance,which caused the fetus enjoys the right of inheritance is not the contradiction of the subject of right in the legal system of conflict.At the same time,the social and economic development,people's quality of life has improved,infringement of the fetus' interest cases is also increasing,while China's legal interests of the fetus and the protection of neglect and lack of cause in the interests of the fetus is not a strong legal protection judicial practice,the court can not be caused by the infringement of the fetus' interest case in the trial when.In this case the "general principles of civil law" article sixteenth came into being,whichgives the fetal part of the capacity for civil rights,to solve the "Inheritance Law" and "civil law" caused by fetal inheritance rights enjoyed the phantom problem,straighten out the civil legal relation among them,lists two kinds of civil rights enjoyed by the right of inheritance and fetus the recipient with the right,and by other legal development for the fetus civil rights left a space,which is China's civil law is the construction of law civilization progress,the progress of our country.However,there is no legal system only the cover and contain everything,the myriads of changes social reality,so the provisions are still questionable,to improve the problem of civil protection of fetus' interests still worthy of analysis and research.In this paper,through the law,comparison at home and abroad to protect the interests of the fetus' s basic theory described in detail,to protect the interests of the fetus are typical cases at home and abroad,on the basis of the protection of the interests of the fetus of the existing results are summarized,and the related issues of protecting the interests of the fetus are detailed and in-depth analysis and research.This paper consists of three parts: introduction,text and conclusion,in which the text consists of three parts:The first part is the legal basis and legislative model of the protection of fetal interests.This part mainly discusses three problems,the first is the legal basis of the protection of fetal interests.At present,there are three main theories in the theoretical circle,that is,the theory of right capacity,the theory of life legal interest and the theory of extension of personal rights.Each theory exists,which shows that it must have its own unique advantages.Through the analysis of the advantages and disadvantages of the three theories,this point of view,only give the fetus the capacity of civil rights,the fetus to enjoy civil rights and legal protection of the basic rights to logical,otherwise,there is no talk,no rights protection as a source of water.Therefore,the civil law protection of the interests of the fetus should be based on the recognition of the fetus' s ability to have civil rights;two,the legislative model of the protection of the fetus' interests.Introduces the legislative mode of common law and civil law,common law case as the basis,but also to formulate the corresponding regulations;legislative mode in continental law can be summed up into three kinds,general protectionism is that as long as the interests of the fetus are not protected,individual protectionism benefits to the fetus to explicitly enumerate protected interests of the fetus,Negativist not protect,that the fetus has no capacity for civil rights,are not entitled to any civil rights,the theory of criticism because many countries in the worldhave ignored the interests of the fetus.In this paper,the advantages and disadvantages of the former two legislative models are analyzed in detail;three,the legislative trend of the protection of fetal interests.Through the comparative study of civil law and common law legislation mode,summed up the trend of legislation,the two legal systems are consistent in the legislative spirit,legislative form integration of mutual reference and scope of the protection of the interests of the fetus are reflected in more extensive trend.The second part is the capacity of the fetus for civil rights.This part includes the nature and scope of the fetus' civil rights ability.In terms of the nature of fetal rights,this paper analyzes in detail the legal termination conditions and the statutory release conditions.This paper argues that the statutory release conditions are more reasonable and more rigorous.At the same time,the paper points out that the fetus has the capacity for civil rights is not liable for any civil obligation,their enjoyment of the visible is different from the capacity for civil rights of the natural "restricted capacity for civil rights";the determination of the fetus civil rights ability,found that the fetus has no right to life has been controversial in academic circles,this paper argues that in the current in the social environment only enjoy life has not denied the fetus resulting in conflict and contradiction between the civil law and the many benefits,but the fetus is a necessary stage in the presence of natural persons,the protection of the fetus is to protect the future of mankind,and the right to life is the most basic human rights of the person,so that the fetus has right to life will become law the development trend of.At the same time,this paper lists the personal rights and property rights that the fetus should enjoy.The third part of the civil liability for infringement of the interests of the fetus.This part includes three parts: the constitutive requirements of the responsibility,the subject of claim and the mode of responsibility.This part discusses the constitutive requirements of civil liability of infringement of the fetus' interest infringement,damages,causality and subjective fault;common types of infringement of the fetus' interest behavior;summarize the characteristics of the infringement of the fetus' interest behavior and general violations compared to its unique,and discusses the special problems a few,that damage is included in "wrongful birth",the damage to the interests of the fetus is partly because fetal parents also is caused,the contributory negligence rule can be used? If the parent's exemption agreement or the knowing behavior is dangerous,he will still take the risk voluntarily.In this case,if the fetus' sinterests are damaged,can the perpetrator take the above actions of the fetus' s parents as the cause of exemption? In the civil liability,whether the fetus can obtain the compensation for mental damage and who can become the subject of the claim under different circumstances,etc..The fetus is the starting stage of natural life,and it is a natural person with life,protect the interests of the fetus,which is to protect the future of the "people",which reflects the law of reverence and care of life.Society is the development of people's life with the development of society is always changing,but the law as a universally applicable norms,the authoritative and uncertainty,so the law can not be legal inconstant in policy is relatively stable,and it is not possible to change synchronously with the society,so between law and social life are bound to exist disconnection,namely the law has lagged behind,which is unable to avoid legal defects.One of the reasons why Savigny,a scholar of the school of historical law,opposes the formulation of the German unified civil code,is that the civil code is backward when it is formulated,indicating that the law is lagging behind,which is the inherent defect of the law.Therefore,this article affirms the general provisions of the civil law sixteenth,but also puts forward some suggestions on its perfection.