Study On The Protection Of The Interests Of The Fetus-Interpretation Of Article 16 Of The Civil Code

On 2021,civil code was put into effect.Article 16 of the Civil Code stipulates that the fetus has the capacity for civil rights under certain circumstances.There are still many disputes in academic theory.The focus of the disputes mainly focuses on the legislative mode of fetal protection legislation,the nature of fetal rights and abilities,and the scope of protection of fetal interests,and the exercise of fetal rights.As for the legislative model,there are three main legislative models adopted by various countries: the umbrella protectionism,the individual protectionism and the absolute protectionism.The Civil Code of our country adopts the legislative mode of umbrella protectionism,which gives full protection to the interests of the fetus,in theory,there are the theory of protection of legal interest of life,the theory of protection of personal right and the theory of fetal right capacity.This article holds that the civil rights of the fetus is a kind of right capacity with the condition of legal rescission of "but",which is the stipulation of right capacity,not the extension of personal rights.The foetus enjoys the independent right capacity,which contains certain obligations,and the legislation only provides two specific situations of foetus’ inheritance and donation.The other situations represented by the word "etc." are different in theory and different in practice.There are four kinds of controversial situations:one is the protection of the interests of the fetus when it is injured in the mother’s body;Third,prenatal examination caused damage to the interests of the fetus protection;fourth,the fetus in the distribution of land compensation benefits protection.In the first three cases,the civil rights of the fetus should be affirmed by laws and regulations,while the right to compensation for land expropriation of the fetus is not suitable for one-size-fits-all compulsory regulation.