Research On The Compensation For Damage Of Fetal Interests

With the improvement of medical level,people have realized that the fetus is not a part of the mother's organs,but a forming person,with independent personality elements.With the development of society,incidents that infringe on fetus are endless,and countries have also continuously improved legislation and judicial practices.Before the promulgation of the General Principles of the Civil Law,China only protected the reserved portion of the fetus.The implementation of Article 16 of it ended the lack of explicit protection of fetal interests,and under certain circumstances,the ability to grant fetal civil rights.In judicial practice,the types of cases show a trend of diversification.In addition to infringing on the right to inherit and beneficiary,other types of cases frequently occur.For example,the fetus is violated during pregnancy,resulting in physical disability or disease after birth.Obligation to support the fetus due to traffic accidents,death or incapacity,resulting in violation of the right to support of the fetus.So the protection of the fetus' s right to inheritance and beneficiary is not compatible with judicial practice.However,the usage of the word "etc" in the legal provision is rather vague,making the scope of protection of fetal interests ambiguous.Therefore,whether the scope includes the right of claim for damages and the realization of the right are the issues to be discussed in this paper.This paper will discuss by studying relevant cases in China and abroad.The text is divided into four chapters:The first chapter is the analysis of the status quo of the judicial practice.First of all,according to the different causes of violations,the cases are divided into two categories: the fetus itself is infringed and the fetus' s parents are infringed.This paper will analyze the cases with opposite conclusions,summarize the basic position of the court and the problems in judicial practice.Combined with the provisions of legislation,and the views of scholars,this paper discusses the causes and disadvantages of the problems in judicial practice.The second chapter discusses the exercise of the right to claim for damages of the fetus.This paper first makes a comparative analysis between the infringement of the fetus and the general infringement,so as to clarify the necessity of independent protection of the interests of the fetus.The exercise of the right can be divided into two types: claim for personal damages and claim for maintenance damages.The discussion is based on time and according to different situations.Cases are used to elicit problems,combined with scholars' theories,and drawing on extraterritorial legislation to discuss and answer questions such as whether the fetus has the right to life,when and how to exercise the right to claim damages.The third chapter discusses the scope of damages.For fetal personal damage compensation,discuss the details of each compensation item in combination with the case.For fetal maintenance damage compensation,the relationship between maintenance and death compensation is analyzed.For the issue of whether the fetus can get compensation for mental damage,this paper will explain the reasons for support.The fourth chapter discusses the issue of time validity.Regarding the limitation period of litigation for fetal personal compensation,the discussion is based on the time difference between the infringement and the fact of the damage.For the limitation period of litigation for fetal maintenance damages compensation,it is necessary to clarify whether the right is applicable to the limitation of action,and the difference between the claim for maintenance damages and the claim for maintenance.