Research On Damage Compensation For Fetal Interests

The fetus is the initial stage of the life of a natural person,the interests of the fetus and the interests of the natural person are inseparable and interrelated,the protection of the interests of the fetus is the protection of the interests of the natural person in the future,the natural person can claim damages according to law when the interests of the natural person are damaged,but whether the fetus can claim damages according to law when the interests of the fetus are damaged?How to claim damages?Article 16 of the Chinese Civil Code expressly provides funds to protect the interests of the fetus,but it does not clarify the problem of compensation for the damages of the fetus.As a result,although the cases of infringement of the interests of the fetus emerge endlessly in daily life,judges are "unable to rely on" when dealing with such cases in the trial practice,and there are many cases of the same case and different judgments under the discretion of judges.Therefore,whether the fetus has the right to claim compensation and how to exercise the right are the issues to be discussed and analyzed in this paper.This paper will study the compensation for fetal interests in three parts through case analysis,literature review and other methods:The first part analyzes the current situation and dilemma of compensation for fetal interests.In terms of legislation,the current effective legal provisions concerning the protection of fetal interests include:Article 16 of the General Provisions of the Civil Code and Article 1 1 55 of the Succession of the Civil Code.Article 16 of the Civil Code makes it clear that fetuses are regarded as having the capacity for civil rights when it comes to fetal inheritance and donation,but it does not make it clear whether fetuses have the right to claim damages.In addition,article 1155 of the Civil Code provides that the share of inheritance shall be reserved for the fetus.In the judicial aspect,through the summary analysis of 125 relevant legal documents in the trial practice,and further comparison of relevant specific cases,the author concludes that the fetal interest damage compensation issues are faced with many difficulties.First,the fetal damage compensation legislation is vague,that is,whether the fetal damage compensation belongs to the scope of fetal protection stipulated in the 16th Civil Code is not clear;Second,the scope of fetal interests to be protected is unclear.The scope of fetal interests to be protected in Article 16 of the Civil Code of the word "etcetera"has not been given a clear reference by any legal norms.The third is the lack of rules for exercising rights,which is manifested in the unclear time of exercising rights,the unclear scope of the subject of liability,the unknown subject of exercising rights and the unknown scope of damage compensation.The second part is the legitimacy of fetal damage compensation.Firstly,the connotation and extension of the fetus as the subject of rights in the legal sense should be clarified.The"fetus" in the legal sense should be defined as the living entity from conception to the completion of birth.Frozen embryo does not belong to the extension of the fetus in the legal sense.Secondly,with the help of the theory of capacity of right,combined with the provisions of Article 16 of the Civil Code,the method of legal interpretation is used to seek legal basis for the rights of fetal damage compensation.The word "etcetera" in article 16 of the Civil Code should include fetal damage compensation rights.Finally,the scope of the protected interests of the fetus as the object of rights is clarified,which should include the health interests of the fetus,the interests of inheritance,the interests of receiving the gift and legacy,and the interests of being brought up.The third part is the discussion of the specific rules for exercising the right of compensation for fetal interests.In terms of the time to exercise the right of compensation for fetal damage,the pre-delivery theory is obviously more conducive to the protection of fetal interests,that is,the fetus can claim compensation for damages to obtain legal relief when its interests are damaged during the maternal period.On the subject scope of liability for fetal damage compensation,Chinese women’s legal right to terminate pregnancy determines that if both parents or the mother decide to terminate pregnancy,the parents of the fetus need not bear tort liability;From the point of view of balancing family ethical relations and protecting the interests of the fetus,the parents of the fetus do not need to bear tort liability if they fulfill the obligations of raising the damaged fetus according to law after birth.On the contrary,if both parents of the fetus or the infringing party refuse to fulfill the obligation of supporting the fetus and there is intentional or gross negligence,the infringer shall bear tort liability for the damage of the fetus.In terms of the subject of the right exercise,if the interests of the fetus are damaged but the living body is delivered,the parents of the fetus shall act as the legal agent of the fetus and exercise the right of compensation for the damage in the name of the fetus.Where the interests of the fetus are damaged and the fetus is delivered alive but dies immediately,the parents or other close relatives of the fetus shall exercise the right of compensation for the damage to the fetus and file compensation for the death compensation,funeral expenses,etc.;In the case of the parents of the fetus as the infringer,a new guardian may be determined for the fetus in accordance with the provisions of the guardianship system.After the new guardian of the fetus is determined,the legal agent shall exercise the right to compensation for damages in the name of the fetus.Finally,the scope of damage compensation should include the property damage compensation and mental damage compensation for the fetus.