On The Protection Of Fetal Rights And Interests By Criminal Law

"Pregnant in October,give birth at one time",from a fertilized egg to the birth of a baby,it takes quite a long time.The newly promulgated "Civil Code" clearly stipulates the rights of the fetus to inherit inheritance and accept gifts,but the premise is that the fetus is born alive.If they die before birth or are dead after birth,then these civil rights stipulated in the "Civil Code" become a dead letter.Taking a step back,is it that the rights and interests of the fetus deserve protection only in civil rights?Under the premise that the right to life and health is greater than other rights,why the legislation only attaches importance to protecting the property rights of the fetus and ignores the right to life and health? In the context of my country’s full liberalization of the second child and the implementation of an inclusive population policy,shouldn’t the criminal law more comprehensively and directly protect the rights of the fetus?The answer is yes.This article does not use "whether the fetus is human" as the prerequisite and basis for analyzing the criminal law to protect the rights and interests of the fetus,but starts from the fetus as a "living body",and strives to explore the path of the criminal law to protect the rights and interests of the fetus.First,using the literature analysis method,based on the analysis and integration of the current medical,biological and legal regulations on the starting point of the fetus,it is confirmed that the legal fetus is a living body with a gestation period of more than 8 weeks and before birth.By analyzing the theory of the legal nature of the fetus,it is concluded that the fetus as a potential person has special rights independent of the pregnant woman,and further confirms that the fetus has a quasi-legal personality status.Comparing the similarities and differences between the rights of the fetus and the rights of natural persons,it is clarified that within the framework of the current criminal law,protecting the life and health of the fetus is the top priority of the current criminal law.Therefore,the scope of the current criminal law to protect the rights of the fetus is the life and health rights of the fetus.Using the empirical case analysis method and the comparative analysis method,the violation of the fetus is divided into two categories based on the different results of the violation of the fetus,and the typical cases of abortion and fetal death and injury caused by the abortion of the pregnant woman are listed.,Germany,Japan and my country’s criminal legislation,reviewing the insufficiency of my country’s criminal legislation in protecting fetus rights and interests,my country’s criminal law should strengthen the protection of fetus rights and interests,and should learn from the principles and ideas of foreign criminal legislation.Secondly,clarify that the protection of fetal rights in the criminal law is the need to improve the criminal law network and to protect human rights.The protection of fetal rights in the criminal law is consistent with the people’s concept and does not conflict with the current population birth policy.It further clarifies that it is necessary and necessary for the criminal law to protect the rights and interests of the fetus.feasibility.Finally,using the logical analysis method,starting from the theoretical exploration of the criminal law to protect the rights and interests of the fetus,analyze the inadequacies of the "maternal injury theory,the "independent injury theory" and the "reproductive rights infringement theory",and advocate that the criminal law should create a new crime of "intentional infringement of the fetus".",and further clarified the constituent elements,statutory punishment and aggravated circumstances of the "crime of deliberately infringing on a fetus",and analyzed the principles and principles of punishment for this crime.Combining "fetal gender identification behavior","surrogacy behavior" and " Special circumstances such as “compulsory family planning behaviors” have concluded that China’s criminal law should focus on protecting the life and health rights of the fetus,keep pace with the times,coordinate with the current population policy,and more comprehensively protect the rights and interests of the fetus.