试论胎儿权益的民法保护

On the Protection of Foetus Interests in Civil Laws

胎儿的权益保护在我国立法中很不充分,以致现实生活中胎儿权益受损时无法得到应有的补偿。适值民法典立法之时,有必要重新反思胎儿的法律地位以及我国目前立法对胎儿权益保护的妥当性,以确认其享有的权利范围;应当在采取附条件保护主义对胎儿利益进行保护的同时,扩大对胎儿民事权利的保护范围,对胎儿在健康权、继承权、抚养损害、受遗赠权以及程序法上作为诉讼主体的权利等方面予以确认。此外,立法上还应对胎儿民事权利保护的方式作较为详细的规定。

Protection of fetus fights is inadequate as stipulated in China＇ s civil law, In real life, foetus＇ rights,if hurt ,often do not get effective protection and proper compensation. Just when Civil Law is legislated, it is necessary to reconsider the legal status of human foetus and the appropriateness of the protection of human foetus by legislation at present in China so as to affirm in legal form the limits of rights enjoyed by human foetus. While taking conditioned protectionism for foetus＇ interests, we should also expand the domain to protcct foetus＇civil rights. We ought to affrm in legal form human foetus following five rights, i. e. health right, property heirship, right of being brought up, right of presenting a gift, and right of being regarded as procedural subject in Procedural Law. In the meantime, legislation should give more detailed stipulations on the protection mode of the foetus civil fights.