Protection Method for Interest of Fetus
|School||East China University of Political Science|
|Course||Civil and Commercial Law|
|Keywords||Fetus Right to claim damages Capacity for civil rights The basis of claims|
In addition to the protection of fetal interests inheritance law is clearly defined in the law of inheritance relationship, did not do the other interests of the fetus protection clearly defined, which led to the judicial practice in dealing with the protection of fetal interests, different verdict. Protection of fetal interests of mining absolutism the legislation, that the legislation greatly criticism; ineffective protection of fetal interests at the same time, most of the countries and regions in the legislation, both the protection of fetal interests to make special provisions. Investigated from a comparative law perspective, fetal interests to protect in the judgment gradually recognized, and increasingly sophisticated to meet the practical needs. Provisions on the protection of fetal interests, first appeared in Roman law. Civil law countries inherited and developed the tradition of Roman law on the protection of fetal interests, and have expanded the scope of protection, but protection in countries experiencing certain differences. Common law countries, the protection of fetal interests, through a system of case law has been developing rapidly. Fetal There are three interests protected the legislation, namely All in all protectionist individual protectionism and absolutism. The absolutism of the mining legislation of extremely detrimental to the interests of the protection of the fetus, the majority of scholars have proposed that China should adopt In conclusion protectionism, most thorough protection of the interests of the fetus, in accord with the trend of the Civil Code progress. Mining family protectionist way to solve the problem of fetal interests not of the optimal choice. First, will cause great changes in the capacity of civil rights theory; Secondly, mining In conclusion protectionism will lead to many problems still need legislative coordination provisions. The presence or absence of capacity for civil rights has become the most important issue of the protection of fetal interests involved. Around the capacity for civil rights, \Around the rights of the ability to investigate the protection of fetal interests, in line with the traditions and customs of the civil law, but ignored the normative sense of the system's capacity for civil rights. And For the protection of fetal interests do not confer the necessity of the fetal capacity for civil rights. Capacity for rights issues aside, the direct recognition of the natural person entitled to compensation claims for damage suffered prior to the unborn, and that \As the theoretical basis to request the right foundation said \Insist on the right to request body, the fetus can not bring claims of natural persons. Natural person has been able to bring claims for damages before the birth, is the extension of rights protection and tort liability causality imputability reasons exist. Fetal interests protected by certain natural persons suffered its fetal stage undermine the enjoyment of the right of claim to be a natural person after birth, as the general tort only particularity is to have been infringed upon, does not yet have the qualification of civil subject. The fetal stage required the protection of the interests of natural persons alive after birth, should enjoy rights have been violated shall prevail. Exercising the powers of natural persons, shall determine the time of the request for exercise of the right, the right to request the limitation of actions starting, mental damages applicable. Especially when the parents involved in the violations, should be read in conjunction with the deliberately degree of identified parents strict tort liability; parents when there is no fault, appropriately contributory negligence to reduce the liability of the offender in relation to third party perpetrators.