Study On Expansion Of Fetus Interests Protection In Tort Field

In recent years, with the increase damage of fetus's interests, the need of protection in the judicial practice is even more prominent. And our country civil legislation only share limited regulation in their inheritance to the fetus interests protecting, so the fetus interest protecting legislation, particularly the tort legislation need to improve. However, due to special attributes of fetus's unborn, whether the fetus has a right to academic ability, civil dominant position, and the scope of interests protection of the fetus is a range of issues in dispute. The purpose of this paper is to explore the expansion of the protecting of the fetus's interests in field of tort.With the development of the concept of human rights and the need of judicial practice, the protection of fetus's interests is legislation needs in the field of infringement expansion. This article, beginning with compensation case for the father died of traffic accidents or disability which leads to fetal alimony and through similar cases but different judgments , summed up that China 's civil legislation in particular tort legislation in the filed of against the interests of the protection is limited and deficient. To properly protect the interests of the fetus, scholars have made some efforts, and also have formed many theories. This paper analyzes the deficiency of each theory, puts forward the view--right capacity fiction theory, and discusses in detail how to provide the fetal rights and ability by using method of implied, which in order to properly regular the tort of fetal interests, and to safeguard the legitimate rights and interests of fetus. On the basis of this, two aspects of fetal right of claim for damage compensation of traffic accidents -- the damage of embryo's personal, property interests are discussed in this paper. The fetus was custody behavior has its particularity in traffic accidents, so fetal alimony compensation request right of exercise has bigger difference from the fetus for other damages claim. This paper mainly discusses the fetal alimony compensation request right characteristics and elements, finally, in the above theory basis, put forward suggestion on issues that fetal father due to traffic accident death for disability allowance compensation.