Discussion Of The Rights Ability And The Protection Of The Unborn Fetus

The fetal phase is a must phase for every natural person,protecting the interests of the fetus is essentially the protection of the interests of natural persons,the value orientation of the protection of fetal interest is worthy of recognition,It embodies the deeper respect of human rights in civil law.The protection of the fetus in civil law is reflected in the protection of the fetus’ s civil rights,civil rights are limited to civil subjects,there is inseparable between fetal protection and fetus’ s rights ability.The "General Principles of Civil Law" have made a new regulation on the fetus protection model,providing an opportunity for the discussion of this article.Before the implementation of the "General Principles of Civil Law",benefits of the fetus are mainly protected by the "General Provision of Civil Law" and the "Law of Succession",the degree of protection of the fetus by these two laws is extremely weak and there is a loophole in the system.Article 16 of the "General Principles of Civil Law" empower rights ability to fetus,however,there are still unclear places in this rule,rely solely on this rule is impossible to establish a clear fetal protection system.When does the fetus have rights ability? In what areas are the fetus been protected?That’s all the topics that this article is going to explore.This article compares and analyzes the model of foreign legislation,and study the case of judicial practice in China,at the same time,with the help of logical analysis of legal provisions,to explore the mode of fetal protection in our country and put forward some ideas about the fetal protection system.This article is divided into two chapters,the first chapter "analysis of the status of the fetus",mainly to analyze the shortcomings of China’s previous fetal protection model,as a way to pave the way for the introduction of the current mode,and then discuss the limitation which law made for the fetus;the second chapter “The scope of protection of the fetus” mainly studies our country’s model of protection scope,discusses the characteristics of China’s model,and finally analyzes whether a specific type can be included in the protection system by extended explanation.The first chapter begins with analyzing the shortcomings of China’s previous fetal protection model.Article 9 of the "General Provision of Civil Law" negates the fetus’ s rights ability with absolutism.Therefore,the fetus cannot enjoy civil rights and the fetus cannot be protected.Article 28 of the "Law of Succession" also negates the fetus’ s rights ability with absolutism.The special protection exist logical loopholes.Article 16 of the "General Principles of the Civil Law" adds special provisions to the principle that the ability of the right begins with birth by adding supplementary provisions.Because the fetus has rights ability,there is a more complete interpretation of the understanding of Article 28 of the "Law of Succession." The law gives the fetus rights ability,but at the same time it imposes certain restrictions on the status of the fetus.These restrictions are reflected in the non-unity of fetal rights and obligations,the conditional status of the fetus’ s rights ability,and the limitation of the type of fetal protection.The second chapter begins with the word "etc." in Article 16 of the "General Principles of the Civil Law",because the article has added the word "etc." after enumerating the two specific types,which means that there are other types which may be able to be included in protection system.However,the word "etc" does not refer to a specific type,so it is necessary to discuss it.Based on the complexity of social life,protect all types does not meet the social practice in China.Therefore,we must adopt the individualism model.The individualistic legislation on fetal protection in China does not mean that only the two types of enumeration are protected.Because there is the existence of the word “etc”,the individualism model in China is an elastic individualism.This article discusses the types of damages and the types of requestsfor child support.In addition to the two types of enumeration discussed in this paper,whether other types of interpretation can be included in the protection system depends on the judgment of the judge combined with the specific situation.