On The Right Of Claim For Damages In The Protection Of The Rights And Interests Of The Fetus

For the first time,<The General Provisions of Civil Law >clearly stipulate the fetus’ capacity for civil rights.The fetus,as an early stage of human life,deserves protection and preferential treatment.<The General Provisions of Civil Law> made clear that the fetus was regarded as having the civil rights in respect of succession and gift,etc.However,the cases that infringe the rights and interests of the fetus occurred frequently in practice,and it was not uncommon for it to be found on the juridical website of the Chinese legal document search related to the fetus Reached 12,592 cases(up to January 8,2018),involving more than half of the total number of cases involving the keyword " compensation for damages " and " compensation for personal injury ".From this we can see that except for <The General Provisions of Civil Law> Provisions of the area of inheritance and gift,tort damages and fetal rights and interests are closely related.Therefore,based on the codification of Civil Code and based on <The General Provisions of Civil Law>,this paper focuses on the analysis of the claim for damages in the protection of fetal rights and interests:The first part is the brief introduction of the development of China legislation on the protection of the rights and interests of the fetus,starting from the two aspects of the rights and rights range,analyzing the changes in the protection of the fetus’ rights and interests and the reasons for the changes,and enumerating the extent of protection of the fetus’ rights and interests;Afterwards,it pointed out the unresolved issues left by <The General Rules of Civil Law>.Then discuss the main forms of infringement of the rights of the fetus,this part is the difference of infringer points of view as a starting point for the classification discussion,due to the fetus own particularity,its constituent elements in the infringement,is different from the general natural person infringement.The first is whether parents can become infringers,this part will combine the foreign cases and the actual cases in China to analyze the rationality of their existence,and then type the situation;followed by the third person as the infringer,this situation is mainly to discuss the infringement Time and infringement of the consequences of the identification of two issues;finally,the third parent and the third person to infringement,the main part of the joint tort to the fault.The study of this part is mainly to classify the infringement patterns of fetus’ rights and interests under the current legal framework,so as to provide some new ideas for judicial trial.The following part deals with the realization of the fetus’ claim for compensation for damages.This section deals with three issues in the case that the above-mentioned infringement forms are established,from the main body of the exercise,the limitation of action,and the response of the fetus to the effect of stillbirth.The solution of this part of the problem will make the protection of the rights of the fetus no longer be talked about on paper and become practically feasible in order to realize the value of law.The fourth part of the fetus damage compensation claims in other special issues to demonstrate,mainly in the two aspects of liability and compensation of three special issues,the first is whether the parents of the promise and self-trap risk can hinder the responsibility;followed by the fetus is Should bear the fault of the parents;the final issue is the compensation for the mental damage of the fetus.This part will further study the details that have not been touched on in the hope of protecting the relevant civil rights of the fetus more effectively.The protection of the fetus is a respect for life and a hope for the future of mankind.To clarify the similarities and differences between infringement compensation of fetuses and infringement of general natural persons is the basis for the establishment of the system of claim for fetal damages and make use of the existing legal framework to define the similarities and special places are to be constructed in the future legislation and judicial practice.