Study Of The Protection Of Fetal Interests In Tort

Protection of fetus'right in civil law is an oldest and the realistic topic. It can be traced back to the earliest period of Roman law. Protecting the interests of the fetus reflects the respect for life, for respect for human rights. However, with the rapid development of modern society, the cases of fetushurt caused by environmental pollution and Ecological damage become more and more. Giving more protection to fetus becomes the consensus of people, but in the world, the theory and legislation of fetus'benefits are not the same. The controversy of the academia for this problem has never stopped. There are three different modes of protection of fetus'benefits, respectively is the sum-up mode, the individual mode and the absolute mode. Each mode has its supporters and it is really benevolent see benevolence wise see Moses. Fetus right issue is only mentioned in Law of Succession in China. This article will study on this problem from the perspective of tort law. It will introduce abroad legislative experience and jurisprudence and give my legislative proposals, analyses new problems, hoping to give more protection to fetus.This paper is consists of four parts besides the introduction and conclusion:The first part is some Theoretical basis. First describes the definition of fetus in law sense then introduces the origin of protection of fetus'benefit. Then analyses the civil status of fetus. This section is an important part of the article. Firstly, it introduces three different modes: the sum-up mode, the individual mode and the absolute mode and I agree with the first one because it is with the general trend of human civilization and progress. It has gradually become the consensus of the people that civil law should give more protection of fetus. The theories of the protection of fetus'benefit in civil law mainly are theory of capacity for civil rights, theory of legal interests and the extension right theory. I agree with the first one and then give the status quo and the causes of our country's legislation and legislative proposals and countermeasures. The second part is the analysis and discussion of the act of tort which is against fetus'interest. First introduces the specificity of such kind of violation. The author gives the specificity from four aspects: the diversity of violation, the indirect nature, the specific time of occurrence and the specificity of the fact. Then analyzes the elements of such kind of behavior that is harming behavior, damage fact, causal relationship and the fault, focusing on the analysis of causal relationship.The third part is about the specific exercise of the right to request. It analyzes the problem for two situations and focused on the issue of compensation for moral damage.The fourth part is a discussion of some special problems. Whether Parents can become the violations and wrongful birth, wrongful pregnancy. I believe that under nonnal circumstances parents do not assume responsibility for infringement only if the gross negligence or intentional tort. I hold a positive attitude to wrongful birth and wrongful pregnancy and believe that it is the parents who can advocate the right to sue for compensation of damages under the general situation.