On The Criminal Law Protection Of The Fetus

Due to the long-standing reality of traditional concepts and family planning policies,the “independent breathing theory” is adopted as the standard of human birth in our country.The criminal law only protects his personal and property interests of the one after birth,regardless of the fetus.The intentional infringement on the fetus is considered to be non-criminal in our country: the abortion behavior of the pregnant woman and the third party’s infringement on the fetus without harming the mother don’t constitute a crime;and the third party’s infringement on the fetus and his mother is dealt with according to the crime of intentional injury to the mother.The fetus isn’t qualified as a legal object,let alone the status of the legal subject.This article advocates the birth of the fetus as a natural person in law,and recognizes the life benefits and health benefits which have been proven in medicine in the criminal law,thus protecting the initial legal benefits of the person.If it is limited to the current laws and regulations,the criminal law can’t manage to avoid the frequent violations on the fetus in judicial practice.Deliberate infringement on the fetus refers to the act of deliberately performing the fetus abortion or post-natal casualties.There are many ways to infringe on behaviors,including external force attack,taking drugs,environmental pollution,electromagnetic radiation,irregular medical behavior,etc.The hidden space of the invading object,the incalculable time when the harm occurs,the complexity of causality judgment,etc.which pose challenges to the conviction and sentencing of violations of the fetus.From the perspective of criminal law hermeneutics,there are certain limitations in the doctrines of various theories,and it is difficult to manage to regulate the behavior.This article conceives that the crime of infringement on the fetus should be added.On one hand,it is necessary to add the crime on the fetus.From the perspective of protecting human rights,the violation of the fetus should be blamed by criminal law;from the perspective of protecting the legal interests,the violation on the fetus violates the legal protection of criminal law,endangering life and health benefits of the "unborn person",which is harmful for the construction of the socialist legal system;from the perspective of criminal policy,the protection of fetal rights is conducive to complete the criminal law network.The criminal law only incorporates a small number of acts that infringe the fetus and the mother into the criminal law,while ignoring the existence of other results,which does not solve the problems about the conviction and sentencing of infringement on the fetus fundamentally.On the other hand,the crime of infringing on the fetus is feasible.Firstly,in combination with the current case of infringing the fetus,it is often regarded as a hot topic of the media and among the people.Moreover,many people criticize the behavior of infringing on the fetus and wish the crime of infringing the fetus is established.The concept is consistent with the public’s psychological expectations.Secondly,although the case of infringement of the fetus has its particularity and complexity to prove the causal connection,it is possible to scientifically and reasonably prove the causal relationship between the harmful behavior and the harmful result,combined with modern medicine.The collected evidence of the infringement of the fetal case can meet the requirements for prosecution.In the end,many countries have set up special rules to protect the legal rights of the fetus.Extraterritorial legislation can provide reference for our country to establish the crime on the fetus.Therefore,this article believes that it is necessary to add a 234 th intentional assault crime in the criminal law in the chapter about violations of citizens’ personal rights and democratic rights—intentional infringement on the fetus.