| In China’s existing legal system,there is no effective remedy for the infringement of the rights and interests of the fetus’ life and health,especially in the protection of the rights and interests of the fetus’ life and health in the criminal law.Due to the influence of civil law,China’s criminal law denies the view that the fetus is a "person",and many scholars have expressed different views on this.However,theoretical disputes have always been the root cause of the problem that criminal law is difficult to protect the rights and interests of the fetus.However,civil law is primarily concerned with protecting people’s rights,and it is also the first guarantee of people’s private rights.When it comes to rights,it is necessary to understand the subject to which they belong.As a secondary protection law,criminal law is also a protection law,whose purpose is to protect legal interests.Regardless of the legal nature of the fetus,whether it is a person or a thing,its independent legal interests should be protected by criminal law.Therefore,this article does not take "whether the fetus is a person" as the premise and basis for analyzing the protection of fetal rights and interests in criminal law,but starts from a new perspective that the fetus is the legal interest protected by criminal law.It analyzes the theoretical basis for protecting fetal life and health rights and interests,mainly including the theory of legal interest in life,the theory of protection of rights and interests,the theory of extended protection of personal rights,and the ethical basis,to demonstrate that fetal rights and interests should be protected by criminal law,By comparing the similarities and differences between domestic and foreign legislation on the criminal protection of fetal rights and social backgrounds,this paper demonstrates the necessity and feasibility of criminal protection of fetal life and health rights and interests,and strives to explore a suitable path for criminal protection of fetal rights and interests,including fetal rights and interests under criminal protection. |
