Research On The Issues Of Legal Protection To Fetal Rights And Interests

In recent years,cases for compensation for damages to fetal rights and interests occur frequently in China.Stipulated on inheritance and acceptance of gifts in the Civil Code introduced in 2017,which empowering the fetus to the capacity for civil rights to live birth,but Legislation still does not meet the needs of judicial practice.Some factors cause damage to the fetal rights and interests,for instance,environmental pollution,traffic accidents,medical disputes and so on.The rights and interests are not limited to the right to inheritance and gift-receiving,rights in custody,health,life,etc.also need legal protection.Legislative ambiguity causes that legislation do not completely solve problems in judicial practice.Civil legislation on fetal rights and interests still need improvement.This article is focused on the fetus,which analyzed related theories of fetal rights legal protection and analyzed the rationality of granting fetal civil subject status based on the civil rights capacity system.And the article is introduced and analyzed the scope of fetal rights and interests that should be protected.It is concluded that the fetus should enjoy relative personal rights such as the right to life,health,dependence and other personal rights and inheritance rights,the right to be gifted,and the right to claim damages.Based on the current legislative review and judicial case analysis of compensation for fetal rights legal protection in China,in terms of fetal rights and interests protection in China,it is concluded that there is an unclear position of the civil subject of the fetus,the scope of fetal rights and interests to be protected is controversial,the compensation for fetal damage is not established in legislation,lack of specific provisions on fetal rights and lack of prescribed period for litigation,lack of rules of evidence and the subject of exercising the right of action of legal procedures for fetal protection,and inconsistent in determining the scope of rights,inconsistent eligibility of litigants and judicial judgement basis in judicial issues.By examining and drawing on the legislative experience and judicial experience of foreign countries,combined with China’s national conditions and practical needs,the article is put forward suggestions to improving China’s fetal rights legal protection compensation: Firstly,our country should improve the relevant legislation on fetal protection.In the civil legislation,it is clear that the fetus has the status of a civil subject.It adopts the model of collective protectionism to give it full capacity for civil rights.The relative rights to life,health,and dependency were clarified,and the provisions on the right to claim damages to the fetus were added to Torts of the Civil Code(draft)to achieve coordination with other specific tort liability clause systems.Secondly,the specific provisions of the refinement of fetal rights are mainly the elaboration of the right to inheritance,the right to receive and the right to claim for damages.Thirdly,the improvement of the legal procedures for the protection of fetal rights and interests starts from the exercise of the right of action,the distribution of burden of proof and the limitation of action.Finally,our country should put forward judicial suggestions to the judgment focuses on the protection of fetal rights,issue guidance cases by the Supreme Court,and improve the overall legal literacy of judges.In short,the protection of fetal rights and interests is the embodiment of the humanistic spirit of civil law,and the protection of fetal rights and interests should be comprehensively improved.On the basis of clarifying the civil subject status of the fetus,this article proposes targeted solutions to legislative and judicial problems.On the one hand,it can provide theoretical support for fetal rights legal protection,and on the other hand,it also strives to achieve protection of fetal rights and interests and to strive for effective relief for fetal legal protection.