Research On The Protection Of Civil Rights And Interests Of Fetus

With the increasingly serious problem of population aging,the continuous development of social economy,and the increasing number of cases of infringement of the rights and interests of the fetus,in order to ensure the reasonable protection of the rights and interests of the fetus,Article 16 of the Civil Code of China has made provisions for the civil rights and interests of the fetus.However,this article does not make specific provisions on the scope of protection,relief methods,protection channels and other issues of the civil rights and interests of the fetus.With the increasing number of cases of infringement of fetal rights and interests in practice,the cases of infringement of fetal rights and interests far exceed those of fetal inheritance and gift.In judicial practice,due to the lack of relevant legal basis,different judgment results appear in the same or similar cases,so it is particularly important to protect the civil rights and interests of the fetus.Therefore,it is necessary for China to improve the legislation and judicial interpretation of the protection of civil rights and interests of the fetus.This thesis uses normative analysis,comparative analysis and empirical analysis to study the protection of civil rights and interests of the fetus.In addition to the introduction,this article mainly consists of the following four parts:The first part is an overview of the protection of the civil rights and interests of the fetus.First,it defines the concept of the fetus and its legal position,and elaborates the theoretical basis of the protection of the civil rights and interests of the fetus in detail,including the theory of the protection of the legal interests of life,the theory of tort liability,and the theory of right capacity.On this basis,this thesis proposes that the theory of right capacity should be adopted to protect the civil rights and interests of the fetus.The second part is about the current situation and existing problems of the protection of the civil rights and interests of the fetus in China.The existing problems and legislative defects are discussed in detail.The main problems are: the scope of protection of the civil rights and interests of the fetus is too narrow,the relief methods and approaches for infringement of the civil rights and interests of the fetus need to be improved,and the system of the right to inherit property and the right to receive gifts of the fetus still have deficiencies.The third part is about the legislative status quo and reference of the protection of civil rights and interests of the fetus in overseas countries(regions).By comparing the legislative status quo of the protection of civil rights and interests of the fetus in the countries of Anglo-American law system and the countries(regions) of continental law system,it puts forward suggestions and countermeasures that can be used for reference by China.It includes drawing lessons from the overall protection mode adopted by countries(regions) for the protection of the civil rights and interests of the fetus and adopting the right capacity theory.The fourth part is to improve the protection of the civil rights and interests of the fetus.On the basis of the Civil Code,it puts forward that China can choose the overall protection mode,expand the scope of protection of the civil rights and interests of the fetus,consider the uncertainty of the fetal damage in the calculation of the limitation of action,improve the relief methods and ways of the civil rights and interests of the fetus,and improve the system of the right to inherit property and the right to receive gifts of the fetus,in order to better protect the civil rights and interests of the fetus.