On Civil Law Protection Of Fetal Interests In China

Before the promulgation of the general principles of civil law,only the inheritance law provided for the protection of the interests of the fetus in succession.According to"general principles of the civil law" article 9 of the regulations means that the rights of the citizen begins with birth and death finally,due to the unborn fetus cannot enjoy civil rights and assume civil obligations,but the "succession"and gives the fetal inheritance interests,this will cause fetal inheritance interests but not rights main body,the contradiction of the formed the conflict in the legal system.In this case the general civil law,article 16 arises at the historic moment,given the fetal part of its capacity for civil rights,enumerates the fetus two fetal interests enjoyed by the right of inheritance and the recipient with,and use"such as"leave the space for the legal development of fetus's interests,this is the progress of the civil law in our country,is the progress of the construction of rule of law civilization in our country.However,there is no comprehensive legal system,only the ever-changing reality of the society,so this provision is still open to discussion and improve the problem,the civil law protection of fetal interests is still worth sorting out,research.Based on the analysis of our country existing civil legal provisions on the fetus's interests protection,enumerate typical cases in the judicial practice,and elaborated the present situation of the fetus's interests to protect and shortage,on the basis of the paper summarizes the existing achievements to protect fetus's interests,and the related issues in the protection of fetus's interests are detailed and in-depth analysis and research.This paper consists of three parts:introduction,text and conclusion.This part mainly discusses two issues,one is the overview of the fetus and the interests of the fetus,respectively from the perspective of law and illegal definition of the concept of the fetus,and in-depth analysis of the connotation of the interests of the fetus;Second,it discusses the necessity of protecting the interests of the fetus and demonstrates it from three perspectives:the devedopment of the society riled by law,human rights concern and the current situation of fetal infringement.The second part briefly describes the theoretical foundation of the fetus's interests protection,in view of the theory of the fetus has the capacity for civil rights,the three kinds of capacity for civil rights theory has carried on the simple introduction,respectively is absolute rights said,relatively comprehensive comprehensive rights ability and part of the right ability,and adopts the model of compromise to protect fetus's interests in China are analyzed in theory;The third part mainly introduces the current situation of fetal interest protection.This part includes the status of legislation and judicial status.In terms of legal provisions,currently China's civil laws on the protection of fetal interests mainly include general principles of civil law,inheritance law,and marriage law.In the judicial practice,this paper enumerates the two types of fetal infringement cases,one is about the case of fetal inheritance,the second is about the fetus of case for compensation for damage,including maintenance,personal injury,mental damage,etc.,simply introduces the judicial practice court to protect fetus's interests.The fourth part analyzes the deficiency of fetal interest protection in China,which is also analyzed from two aspects of legislation and judicature.First,whether the fetus has the right to claim compensation for mental damage;Second,how to calculate the time for the fetus to exercise its rights;Third,whether the protection of fetal interests enjoys special limitation of action;Fourth,how should the burden of proof be distributed in the case of fetal tort.The insufficiency in judicature is mainly as follows:the basis of judicature is not unified,the subject of foetus exercising rights is not clear,whether it is necessary to further expand the scope of protection of foetus'interests.The fifth part puts forward Suggestions of perfecting our country's interests to protect fetus,aiming at the shortcomings of the from the legislative and judicial put forward the corresponding suggestion,in the legislation,the fetus enj oy the right of claim of compensation for mental injury,can exercise their rights as of the date of the fetus from conception,fetus's interests protection should apply special statute of limitations,fetus's interests protection should apply to the burden of proof upside down.Judiciary,it is suggested that the supreme people's court issue typical cases of protection of fetal interests,set up guardians for fetal interests,expand the scope of protection of fetal interests,and enhance the ability of judges to handle cases.