Research On Criminal Law Protection Of The Fetal Rights

The traditional theory of criminal law regards "whether the fetus is human" as the premise of protecting the fetus in criminal law,although it is simple and clear,it focuses only on whether the fetus belongs to human,which makes the concept of natural person bear an excessively heavy function of dividing crime from non-crime.At the same time,the general theory of criminal law does not discuss the concept of "human",but directly regards "independent breathing" in civil law as the boundary standard between fetus and human,and cannot reasonably reflect the strong demand of the public for fetus protection.From the perspective of legal norms,"whether the fetus is human" and "whether it is protected by criminal law or not" are two different issues.Criminal law protects the fetus because the act of harming the fetus undermines the stable existence of social structure and the common expectation of the public.Therefore,it is necessary for criminal law to intervene.Based on the principle of a legally prescribed punishment for a specified crime,China has not set up an independent "abortion crime" or "fetus injury crime".Therefore,the act of harming the fetus should be regulated by the crime of infringing on the person in the sub-rules of the criminal law of China.Therefore,"whether the fetus is a person" should not be taken as the precondition for the protection of the criminal law,but should be discussed in the constitutive requirements of the crime of infringing on the person.Criminal law has its own independent tasks and functions,and cannot be simply regarded as the guarantee law and backing law of other department laws.Therefore,the interpretation of criminal law cannot completely depend on the understanding of other department laws.The legal boundary between fetus and human is not independent breathing,but the existence of the right to life.Fetus with in vitro viability exist with the right to life,so hurting fetus with in vitro viability is equivalent to hurting "human",while fetus without in vitro viability should be protected by protecting the mother.