| Fertility has enabled human beings to continue to develop and reproduce.The family and society have paid enough attention to fertility,and have carried people’s expectations and wishes for a better life.With the development of China ’s economy,people ’s quality of life is constantly improving,and the concept of eugenics and ubiquitous education has also become popular.Due to the development of science and technology,prenatal genetic testing has become increasingly popular.It has become possible to pre-detect the defects of the fetus during the maternal period.Eugenics will perform prenatal inspections to reduce the risk of having a defective child.However,while technology has brought the gospel to humanity,it has also brought unexpected challenges to lawmakers.Due to the doctor’s negligence in the prenatal examination and treatment activities,he failed to provide parents with information about fetal congenital defects,which led him to believe that the fetus was physically and mentally normal,but did not terminate the pregnancy in time,and eventually gave birth to a severely defective baby.His birth suffered physical pain and mental torture that should not have been suffered.As a result,the child with a defect filed a civil lawsuit with the medical party and demanded that the medical party bear liability for damages.This is a complaint of improper life.The concept of the law of improper life originates from the specific type under the concept of prenatal negligence in the United States.There are a wealth of scientific and case studies outside the domain,which has been a hot research topic in comparative law.The complaint of improper life in China appeared relatively late,but it has been controversial since its appearance.In academia,scholars are thinking about the relationship between physiology,ethics and law,but still have not formed a systematic professional study.In practice,because there is no "improper life" in China’s legislation,the handling of this type of litigation is relatively chaotic in practice,especially regarding the plaintiff’s basis of claim,its litigant qualifications,and the burden of proof of both plaintiffs There are large differences in the improper appraisal procedures and the determination of the scope of damage.With the conflicts of "compensation justice" and "life value" brought about by the development of science and technology and the increasing number of such cases,China’s judicial practice urgently needs the academic support and judgment standards of improper life claims in order to unify the improper life claims.Relevant verdict.Based on China’s judicial practice,based on the analysis of foreign classic jurisprudence and the use of foreign experience and existing research results,this paper proposes that China should affirm the claim of improper life,that is,retreat from the myth of life value and negate the plaintiff’s It argues that it is neither necessary nor fair,and answers to the problems existing in judicial practice and puts forward its own opinions.Finally,it proposes to improve the litigation mechanism of the improper life lawsuit in order to benefit the practice of the improper life lawsuit.In addition to the introduction and the conclusion,this article is divided into four parts with a total of more than 40,000 words.Part 1: the legal problems and causes analysis of the improper life in China.By sorting out China’s judgment documents on improper life dispute cases,we have discovered the current judicial status of the improper life case disputes in China,in order to understand in detail the different attitudes and treatment methods of courts in China regarding improper life complaints,and thus find improper judicial practice.The legal problems in the lawsuit of life,and the scientific analysis of the cause of the problem from the level of theoretical research and legislative provisions related to the lawsuit of improper life in China,in order to seek a clear and targeted solution corresponding to the cause of the problem The way to the problem.Part 2: the review of legislative examples of extraterritorial missuits.As the theoretical research and practical development of the complaint of improper life have rich experience and achievements outside the region,it has research significance in comparative law.Therefore,this section is mainly represented by the United States,the Netherlands,the United Kingdom,France and other countries.It focuses on the legislation and typical jurisprudence of these countries’ complaints of improper life.Reasons and backgrounds for opposing views.The focus is to evaluate the conflicting views one by one,and finally put forward a personal opinion that the reason for negating the claim of improper life is substantially difficult to establish and fully explain and explain it.Part 3: Theoretical Reconsideration of Complaints of Improper Life.Both the legislative provisions and judicial practice’s improvement of the complaint of improper life are inseparable from the scientific knowledge of this type of litigation theory.This section first analyzes the suitability of improper life disputes from the perspective of substantive law and procedural law,and puts forward the view that the right to claim for improper life damages should be affirmed in view of the current actual situation in China,and then passed through the improper birth Compare the lawsuits and summarize the particularity of the lawsuit of improper life,so as to clarify the theoretical connotation of the lawsuit of improper life and the nature of the lawsuit that is more suitable to be handled as a lawsuit of tort.Finally,the content of the claim for compensation for improper life and the lawsuit of improper life are clarified.Subject matter of the lawsuit.Part 4: the improvement of the litigation procedure of improper life in China.Combining with the previous re-understanding of the relevant theories of improper life suits,this section focuses on specific suggestions for the deficiencies in the litigation process of improper lives in China,focusing on determining the qualifications of the plaintiffs of children with defects in improper life suits.During the trial,according to the current laws and regulations and the discretion of the judges,the parties’ fair and reasonable allocation of the burden of proof of proof of the parties was proposed.At the same time,in conjunction with the latest "Evidence Provisions" published in 2019,suggestions and countermeasures to improve the rules for accepting medical opinions were adopted,and how to strengthen the judge’s improper trial Proceedings of life litigation and how to determine the scope of compensation for children with defects,put forward their own views,with a view to safeguarding the lawful rights and interests of the parties through litigation procedures,properly exercising litigation rights,ensuring the smooth progress of litigation procedures,unifying the court for improper life litigation judgments,and improving Proposal of judicial credibility and authority. |
