On "etc" In Article 16 Of The Civil Code

About the legitimacy of fetus' s interests protection,there are generally five viewpoints in the academic circle: the theory of legal interests of life,legal capacity doctrine,the theory of extended protection of personal rights,the theory of tort liability and the theory of enterprise separation.As for the choice of legislative mode for the protection of fetal interests,there are three propositions:absolutism,blanket protectionism and individual protectionism.Legal capacity doctrine has an extremely important influence on the legitimate basis of the protection of fetal interests.Article 16 of our civil code adopts legal capacity doctrine.In some cases,the fetus is regarded as a civil subject with capacity for civil rights,which will have a strong protective effect on the fetus.At the same time,the word "etc" in Article 16 of the civil code adopts the form of "enumeration +generalization",which essentially optimizes the basic individual protectionism and maintains the balance between legal stability and openness.Although Article 16 of the civil code only explicitly stipulates that the fetus' interests should be protected under the circumstances of inheritance and donation,the word "etc" take said not listed completely,which means that the protection of fetus' interests in China is not limited to these two situations.First of all,the fetus is appropriately protected within the scope of personality interests.Despite the fetus is a living creature,the legal recognition of the fetus' s right to life will produce irreconcilable conflicts with the mother's rights,China's population policy and the content of the provisions.So their lives are not protected.Although the fetus is dependent on the mother's body,we should still treat the health of the fetus independently.Where the health interests of the fetus are involved,its health should be protected.Though we carry out special protection to the fetus,we should not overextend the protection scope of the personality interests of the fetus.The fetus should not become the subject of interest in other personality rights such as name rights,portrait rights and reputation rights.The second is to protect the identity interests of the fetus.Although the fetus is not born,it naturally forms a parental relationship with its parents from the moment of successful conception.Parents have the right and obligation to protect and discipline their children in both personal and property aspects.At the same time,the fetus should enjoy the benefits of dependant based on the identity relationship.When the benefit of dependant is infringed,the fetus has the right to claim the compensation for the upbringing.The third is to give certain protection to the property interests of the fetus.The fetus has the right to benefit according to the contract and can become the beneficiary of the third party's benefit contract.Because of the particularity that land expropriation compensation is for collective members,fetuses have no reason to obtain land expropriation compensation costs.Finally,the interests of the fetus under special circumstances will also be included in the scope of protection.It is an established fact that the behavior of the injurer damages the health of the fetus and the interests of the dependent.The injurious behavior has caused intangible spiritual loss to the fetus.Therefore,while supporting the right to health and the right of compensation for the maintenance,we should also remedy its spiritual damage to a certain extent.But it is not feasible to support the lawsuit of wrongful life.Of course,this does not mean that the medical institution with fault is completely exempt.The parents of the fetus can sue for compensation for wrongful birth so as to protect the special care costs of the fetus after birth.The scope of protection of fetal interests has not been fully determined,and the realization of interests has not yet formed a perfect mechanism.The theory of "etc" has not been fully listed can not be implemented.In the claim mechanism of the realization of fetal interests,the claim subject,the claim period and the burden of proof should be clear.The fetus is most similar to the person without capacity for civil conduct in cognition and rationality,so we should regard the fetus as the person without capacity for civil conduct and apply the relevant provisions of the person without capacity for civil conduct to it.The system of guardianship shall be applied to the fetus,and the parents of the fetus shall act as guardians and agents.In addition,before the birth of the fetus,the agent of the fetus should be allowed to claim rights on behalf of the fetus to protect the interests of the fetus.At the same time,the three-year limitation period of civil action and the maximum protection period of 20 years should be applied.However,these periods can be specially adapted to a certain extent.In order to maintain fairness,the burden of proof should be balanced between the fetus and the infringer.The burden of proof of causality is reversed,and the fetus is the one who proves the birth of the fetus.In addition to solving the above problems,the special situation of the relationship between the fetus and its parents should also be properly handled.Generally speaking,parents are not regarded as the subject of infringement,but if the parents have intentional or gross negligence for the loss of the fetus,they should bear the responsibility.The effect of the parents' blocking the illegal promise extends to the fetus,and the counterpart can defend accordingly.In real life,even if the parents of the fetus and the infringer jointly cause the fact that the interests of the fetus are damaged or the damage is expanded,the infringer cannot claim to reduce his responsibility because the parents of the fetus are at fault.Last but not least is that the fetus' s civil rights capacity is subject to dissolution conditions.When the fetus is dead at the time of delivery,all the interests of the fetus no longer exist retroactively.