Study On The Civil Law Protection Of The Fetus’ Benefits

The fetus is the inevitable stage of all natural people during the development. Every body has the process that conception to birth from mother. During the process, not only need to protect the interests of the future, some realistic interests also need to protect. However, with the development of the society, people’s life level continuously improved at the same time, facing the risk of unpredictable has also increased. The pollution of environment, medical misdiagnosis, traffic accidents and so on, all may endanger the interests of the fetus. In the judicial practice in China also gradually has some case of the fetus’s interests. However, except Article28in the inheritance law Provisions measure for fetal inheritance share, there is no rule in other aspects about fetus interests. The lack of legislation, resulting in the judicial practice in dealing with fetus’s interests problems, even the same or similar cases has different verdict and reason, make the fetus’s interests has unfair reasonable protection. Visible, China’s relevant to protect fetus’s interests of the legislation has been far from meeting the needs of the development of the reality, it’s necessary to establish relevant legislation to protect the interests of fetus.This paper mainly use methods as comparative analysis, case analysis, the analysis of the research, pay attention to the protection of the interests of foreign fetal theory and case research, and introduced to existing theories, comments, the basis of put forward my opinion, aiming to cause people to protect fetal interests to the attention of the problem, and promote the improvement of the legislation related to the fetal interests.This paper, besides the preface, has six chapters.The introduction is about the writing cause and purpose.Chapter one:Introduce the protection of fetal interests in our civil law. This part defines who is the fetus, the importance and significance of protecting fetus, then reveals the shortage from the legislation and judicial status of our country to protect fetal interests.And search for a reasonable way which suitable to China’s protection of the fetal interests. Chapter two:The Legislative model of different countries (regions). Analyze the legislation mode from the countries (regions) to protect fetus’s interestsof civil law, list the Roman law, civil law and common law to protect fetus’s interests on the legislative cases. In the analysis of various patterns on the quality, explore whether the mode suitable for the legislation of our country.Chapter three:Search for the civil law basis theory of fetal interests. This chapter is the basis of this article. Fist, introduce four theories about fetal interests from legal principle, respectively is right ability said, tort liability said, life law benefit protection said and person extended protection said. Finally, analysis and reviewed from each theory, this paper put forward about the solution ways to protect fetus’s interests:adopt the person extended protection said as the fetal interest’s theory is more appropriate.Chapter four:The scope of civil law benefit on fetus and how to exercise and protect. This chapter is the focus of this paper. First of all, according to the person extended protection, fetus enjoy life, health, identity, the body of personal law benefit, emphatically discusses whether the fetus enjoy life law benefit, this paper agree with the viewpoint. In addition, fetus should enjoy certain property benefit, such as inherit, accept bequest, put forward such as raising request of interests. Then, the paper discusses when and how to protect, and limitation of legal proceedings and so on. The author thinks that, we should not protect fetus to "live birth" for the premise, and shall protect them during the pregnancy. Due to the fetus can’t exercise its legal interests or claim for damages, we shall establish a system of fetal guardian who shall exercise and protect the fetal legal interests.Chapter five:Deal with the special problems on the damage to the fetus’s interests. The first problem is that the parents and infringement problems. Including whether parents can become tort subject, whether illegal promise to parents resistance is effective, whether the parents of the damage occurred can fault negligence offset. The second problem is "inappropriate was born,""improper life" and "improper pregnancy" claims. The debate about the lawsuit focused on whether to support the litigation, what is the scope for compensation. The problems in our country’s theory and legislation are not involved, but in the judicial practice has already been some cases. We can take example by foreign widely recognition of the approach in our country’s legislation and practice.Chapter six:Complete our country’s civil law about the protection of the fetus’s interests. Combined with earlier, this paper puts forward some improvement in our civil law to protect fetus’s interests on the legislative proposals and judicial opinions. The future civil code should clearly provide the fetal law benefits and feasible protection measures in related part. Also should establish that natural person have the right to claim for damages during the pregnancy to protect the natural person’s legitimate rights and interests full-scale. Judicial workers should set up the idea that "life first, guarantee of human rights", and constantly improve their own quality, strengthen protecting on the fetus who is disadvantaged groups.