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Fetal interests in tort protection issues

Author: MengJie
Tutor: LuoXiaoJing
School: Zhengzhou University
Course: Legal
Keywords: Interest Protection Tort Damages
CLC: D923
Type: Master's thesis
Year: 2009
Downloads: 67
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Abstract

Fetal interests of the protection of an ancient reality, the earliest dating back to Roman law period, the fetus should get more because of its weak civil law protection, but in fact national civil law protection for natural persons and the protection of the interests of the fetus less. With the advancement of technology, modern society due to environmental pollution, ecological damage because lead against fetal right to life and health of the growing number of cases, people come to realize that the fetus interests should be given more protection. But worldwide, the theory and legislation are not the same. Academia protection of fetal interests is flourishing contending a variety of academic and theory and so forth, for example, there has been civil law in the protection of interests of the fetus three legislative Example: blanket protectionism individual protectionism and absolutism. Scholars in favor of each of the legislation has the championed reasons of their own in favor of the legislation is benevolent see benevolence and the wise see wisdom. For the theoretical basis of fetal interests protected rights and the ability to say, life legal interest, personal rights extend protection said. The law of civil law on the interests of the fetus is only the law of succession in the special Portion a legislative very immature. This article through the study of the the fetal interests of Civil Protection of problem from the perspective of tort law, introduce and learn from the experience in legislation and case law of the protection of fetal interests abroad, to put forward legislative proposals and analysis of of the fetus infringement new issues, hoping to better ground solve the fetal interests of civil law protection. In addition to the introduction and conclusion, is divided into four parts: the first part of the fetal interests to protect legal basis for protection in tort. This section first defines the concept of the fetus, and discusses the origin of the problem of the protection of fetal interests. Then the fetus civil subject status, the part of the Theoretical Foundation of the fetus interests protected by the Civil Code, which is an important part of the article, this part of the first three legislative model of fetal interests protected by the civil law: In conclusion protectionism individual protectionism and absolutism, for three of the legislation, I agree with umbrella protectionism gradually become the consensus of the people because the sum up of protectionism is more in line with the general trend of the civilization and progress of human law, increase the protection of the interests of the fetus . For fetal interests of the protection of the theoretical basis of the doctrine mainly have rights the ability to say, Lives Act benefits said, personal rights extend protection to say, the author on the basis of analysis, Review of the merits of the various doctrines of proposed their claims that in favor of capacity for rights that then our legislative status quo Causes and legislative proposals and countermeasures. The second part of the analysis and discussion of the behavior against fetal interests. This part of the first violations particularity of the fetus, indirectly the specific occurrence time, the particularity of the facts identified from the diversity of the violations, the violations discussed several aspects; then the against fetus interests and behavior analysis constituent elements that harm behavior, damage to the facts, causation and fault, with a focus on the causal relationship. The third part is the exercise of the right to claim damages, divided by the case against related health damage and fetal birth analysis by the case of infringement caused death in two cases before birth, which analyzed the problem of mental damages. The fourth part is a discussion of some fetal the special interests infringement problem. Parents can become a fetus born infringement and improper improper pregnancy whether the request for compensation. I believe that parents under normal circumstances, parents do not bear tort liability, only, only intent or gross negligence, tort liability. Whether for Wrongful Birth improper pregnancy could claim damages, I hold a positive attitude and that parents of children under the Wrongful Birth general right to sue and claim damages.

Fetal interests in tort protection issues

Abstract

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