Study On The Civil Law Protection Of The Fetus' Benefits

Since the fifties of the 20th century, there took place continuously the law cases of the compensation for damages about the fetus's benefits in many countries. The judicial practice in our country also met with the problem. Abroad, the legal provisions about fetus are perfect and rather ripe in most countries. In China, it is only the 28th judicial item in《Inheritance Law》that makes stipulation about the fetus' inheritance benefits. Our law ignores and omits the protection to the fetus' benefits, the loopholes in legislation make it difficult or even impossible for judicial courts to well protect the fetus' benefits in judicial practice. The dissertation makes in-depth and thorough study about the relevant issues concerning the protection of the fetus' benefits by adopting the research methods of comparative analysis and theory analysis. Paying more attention to the theories and judicial precedent results about this question in different countries, analyzing the various situation of the compensation for damages about the fetus's benefits based on the systematic comment to the current theories, the dissertation desires to find a better solution to the question of the protection system for the fetus' benefits in civil law.Preface: It introduces the importance of the protection for the fetus' benefits.This article includes four chapters:First part: The fetus' legal status in civil law. This part discusses two questions: the concept of fetus and the fetus' legal status. The author points out that the legal concept of fetus is different from that of medical science and the biology. It refers to life before the birth. The range of natural person in modern civil law exculdes the fetus, the fetus is not the civil subject, but we have to protect the fetus' benefits in fact. So the contemporary civil law has to face the reality that how to coordinate the contradiction.Second part: The legal regulations of various countries' protection on the fetus' benefits. It introduces the conditions and features of legislation of the countries adopting continental legal system, the countries adopting Anglo-America legal system and our country. We should draw on the experience of the foreign advanced, successful legislation to protect the fetus' benefits better.Third part: The basis for the fetus' benefits. It discusses the three various theories of the protection system for the fetus' benefits in civil law: "Legal capacity"theory, "legal benefit " theory and "claim right on tort" theory, analyzes the positive effects and the negative effects of the three various theories. Then, the author basically agree with the "Legal capacity"theory. The cognizance of fetus's legal capacity should be based on legal cease condition theories: the fetus has legal capacity in unborn time unless he is a living body.Fourth part: Protection ways of the fetus' benefits after these benefits being infringed. This part discusses four questions: Our civil law should admit the fetus' legal civil subject; the range that the fetus should enjoy the civil rights as a civil subject, the author thinks that the fetus should enjoy health right, life right, property right of inheritance, pure acquisition right of interest and so on; the principle of the protection system for foetus' benefits in civil law and the protection ways of the fetus' benefits after these benefits being infringed, this part analyses some special issues of damage compensation, such as whether parents could serve as infringement subjects, whether wrongful birth, wrongful life, wrongful pregnancy could become the reasons for law cases, whether the negligence set-off principle could be used if the parents have faults for damages, whether the promise of legal elimination could be effective to the injured person; the establishment and enforcement of right for the fetus' compensation for damage.