On the protection of fetal interests in civil law.
The civil law protection of fetal interests has been an important topic in legal research since Roman law. In our country, the civil law does not recognize that the fetus has civil rights. However, with the increasing number of fetal infringement incidents, how to strengthen the protection of fetal interests has become an important issue before us. The interests of the fetus are an extension of our interests as natural persons. So the law should protect the interests of the fetus.
Keywords:: civil law legislation mode, fetal civil rights protection
I. Introduction
? June 2000, 65438+ 10/0, identified for many years? Fetal health damage compensation case? Finally, it is said that the Chongchuan District People's Court of Nantong City, Jiangsu Province ordered a hospital to compensate Shimou 106590.42 yuan in one lump sum. The verdict in this case is the first in China. Fetus? Cases in which personal rights are protected by law. ? In recent years, there are more and more similar cases, among which the protection of the civil rights of the fetus has aroused great concern in the civil law field. Since Roman law, the protection of fetal interests in civil law is an important content of civil law and an old topic in the legal field. However, although this problem has always existed, with the continuous development of new biotechnology and modern medical science and technology and the change of social policy, the research on this subject has become particularly complicated.
The civil law protection of fetal interests is a very realistic problem in the field of law in China. The current civil law of our country does not recognize the civil subject status of the fetus, which leads to the failure of our civil law to effectively protect many interests of the fetus. The current legislative situation in China is not conducive to the healthy growth of the fetus, which runs counter to the spiritual pursuit of modern rule of law in China. Perfecting the civil law protection of fetal interests should be an important part of the legislative drafting of China's current civil code.
Second, the theoretical basis of the protection of fetal personal interests
(A) the legal significance of the fetus
What is legal? The current fetal legislation in China does not clearly stipulate this, and even the relevant theoretical definitions are inconsistent. From the current laws in the world, we can know that civil law protects the interests of the fetus, and the most important thing at present is to protect the property rights that the fetus should enjoy. Therefore, if the biological or medical definition of fetus is quoted, it will be inconsistent with the spirit of legislation. If you want to define a baby more accurately, the most authoritative view is that of Hu Changqing, a jurist in Taiwan Province Province, namely? The fetus is the mother's son. That is, from conception to birth, it is called a fetus? . In other words, a legally protected fetus should refer to a person conceived by a woman.
(B) the theoretical basis of civil law to protect the interests of the fetus
The fetus is an unborn person, so when the fetus is illegally infringed, can it also apply for legal relief according to civil law like a natural person? With the development of human rights thoughts in today's society, people's awareness of rights is gradually enhanced. On the issue of protecting the interests of the fetus in an all-round way, most theorists and practitioners have reached a consensus that the rights of the fetus should be fully protected. However, the theoretical basis of protection is still a controversial issue, and there are three main viewpoints:
1.
Some scholars in Germany believe that the legal interest of life exists before the law itself and is a part of human nature and natural creation. This theory holds that only when the fetus is alive at birth can it be endowed with appropriate abilities. However, in real life, the possibility of infringement is everywhere. If an unlawful infringement leads to the death of a fetus, it will often happen that the fetus cannot get corresponding relief after its interests are infringed because it has not obtained the right capacity. The premise of this theory to protect the interests of the fetus is that the fetus has the right capacity first. Therefore, it is difficult for this theory to fully protect the interests of the fetus.
2. Theory of capacity for rights
Regarding the protection of life rights and interests, some scholars believe that the protection of fetal interests should be based on substantive law and try to prove that the fetus has rights and abilities. Acts that infringe on the rights and interests of the fetus can be remedied through the corresponding claim for compensation for fetal damage. Although the theory of capacity for rights can fully protect the interests of the fetus without being restricted by the right system, it is still controversial in theory. At the same time, the theory of legal interest in life is the main support of the theory of power ability, but Germany's research on the object of crime is its main theoretical source. If the theory of capacity for rights is directly applied to the civil law system in this way, it may cause the civil subject to abuse the theory of capacity for personal interests.
3. The theory of extended protection of personal interests
? Professor Yang Lixin, a Chinese scholar, put forward the theory of personal rights protection, that is, while protecting the personal rights of civil subjects, the protection of civil law should be extended to their personal legal interests before or after their death. ? Its basic points are as follows: first, before and after the birth of a natural person, there are predecessors' personal legal interests and continuous personal legal interests related to personal rights; Secondly, early personal legal interests and continuous personal legal interests are closely related to personal rights, which constitute the complete personal interests of natural persons. In the process of protecting personal interests, the lack of any protection link will lead to the incomplete protection of natural persons' personality interests, and their personality interests will not be fully protected; Thirdly, the integrity of individual interests and the systematicness of individual rights and interests of natural persons determine that the legal protection of natural persons must focus on the protection of their legitimate rights and interests by law and extend forward and backward. Only in this way can we protect both the early personal legal interests and the continuing personal legal interests.
Thirdly, the legislative model and evaluation of civil law protection of fetal interests.
(A) the legislative model of civil law protection of fetal interests
1. Absolutely
Absolutism, that is, absolutely denying that the fetus has the right and ability. The fetus has no legal capacity, so it is not protected by law. This is the most logical statement of law, but it also violates the purpose of law. 1964 the Soviet civil code and the general principles of China's civil law adopted this legislative model.
2. Umbrella protectionism
Umbrella protectionism, also known as generalization. The unborn baby is regarded as having legal capacity at birth, that is, as long as the fetus is alive at birth, it has civil rights before birth, that is, it is protected and relieved as an ordinary natural person. For example, the second paragraph of article 3 1 of the Swiss civil code stipulates: The fetus, as long as it is alive at birth, has the conditions of rights and abilities before birth. ? This provision of Swiss civil law improves the right capacity before birth. However, this one-size-fits-all protectionism must be based on the premise that the fetus is alive at birth.
3. Personal protectionism
Individual protectionism is also called individual prescriptivism, that is, the fetus has no legal capacity in principle, but some exceptions are regarded as legal capacity. France, Germany, Japan and other countries have adopted this theory in their laws. For example, Article 906 of the French Civil Code stipulates that only the fetus who was pregnant at the time of donation before death is eligible to accept donation before death. The fetus conceived when the testator dies has the ability to accept the inheritance according to the will. However, the gift will only take effect if the baby is a survivor at birth? . Paragraph 2 of Article 844 of the German Civil Code stipulates that although the fetus was not born at the time of the damage, it has the right to claim compensation for the damage caused by the upbringing. ? Article 72 1 of the Japanese civil code stipulates? As for the claim for damages, it is regarded as born? . At present, the laws of France, Germany and other countries have made great progress in the protection of fetal rights and interests, and the legislation of these countries has given corresponding relief and protection when the fetus is infringed. (2) Evaluation of the legislative model of civil law protection of fetal interests.
Advantages and disadvantages of absolutism
The advantage of absolutism is that it adheres to the traditional civil rights capacity, but completely denies the fetal rights capacity, obviously ignores the protection of the fetus, and it is difficult to protect the interests of the fetus and lacks theoretical support. It has been widely criticized by scholars, and accepting such legislation runs counter to the trend of protecting human rights in the world.
The legislation of absolutism is not conducive to the protection of fetal interests and has limitations. Under this legislative mode, it is impossible to get legal protection when the interests of the fetus are violated by illegal acts. Although absolutism indirectly protects the interests of the fetus from the perspective of protecting women's rights and interests, most of these legal provisions are formulated from the perspective of protecting mothers. The law in this model holds that protecting the rights and interests of the mother means protecting the rights and interests of the fetus. This legislative model confuses the difference between maternal protection and fetal protection. This legislative model lacks the independence of protecting fetal rights and interests, so this legislative model can not effectively protect fetal rights and interests. These regulations only protect part of the interests of the fetus, but their main interests are not guaranteed.
2. Summarize the advantages and disadvantages of protectionism
Roman jurist Paul once pointed out: When it comes to the interests of the fetus, the fetus in the mother is treated as a living person, although it is of no benefit to him before he is born. ? Generally speaking, this is a totalitarian spirit, which can fully protect the interests of the fetus. Compared with other legislative models, package protectionism is the most comprehensive and systematic way to protect the interests of the fetus. This legislative model can effectively avoid the disadvantages of personal protectionism and effectively prevent the law from being out of touch with social current affairs. For the legislative models of Germany, Japan and other countries, scholars advocate adopting a package of protectionism on the grounds that individual protectionism cannot effectively protect the rights and interests of the fetus. All-encompassing protectionism can effectively protect the interests of the fetus, which is in line with the purpose of civil law? Protecting human rights also reflects the objective needs of the judiciary in real life, so many scholars advocate adopting this one-size-fits-all protectionist model.
However, this legislative model is based on the capacity of rights, which exposes many problems. First of all, for the fetus, it can only enjoy civil rights and cannot bear civil obligations, so it is not appropriate to confirm the capacity of the fetus for civil rights. Secondly, the legislative model has shaken the foundation that civil rights capacity begins from birth and ends at death in traditional civil law, which may eventually lead to a series of unexpected problems and lead to irreconcilable problems in the whole legal system.
3. Advantages and disadvantages of personal protectionism
Although individual protectionism denies that the fetus has the qualification of civil subject in the mother, it regards the fetus as a birth on some specific issues and protects the interests of the fetus by enumerating methods. The advantage of this legislative model is that the fetus enjoys certain rights and interests in some special matters, so the application of the law is very clear and simple, and it is also beneficial to the interests of the third party and the daily civil life order. However, the scope of its protection is still relatively limited, and it is difficult for individualism to achieve the effect of point-to-point coverage. Especially in today's high-speed industrial development, matters related to the protection of fetal interests are bound to become complicated, and it is difficult for legislators to reasonably foresee in advance. Moreover, after the law is finalized, it is impossible for legislators to keep pace with the times, constantly revise and increase the protection of fetal interests in time. Therefore, this theory can not completely protect the rights of the fetus.
In short, with regard to the above three legislative models to protect the interests of the fetus, this paper thinks that general protectionism is more appropriate and reasonable. The civil law protection of fetal interests is a very complicated and comprehensive legal issue. In the discussion of this issue, we can realize people's concern and concern for the new life of mankind, and the discussion of this issue is also of great practical significance, which is also the need of building a contemporary socialist harmonious society in China.
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