胎儿民事权利能力研究
发布时间：2019-06-18 08:32
【摘要】：传统民法理论主张自然人的民事权利能力始于出生,终于死亡。由于“出生”这一法律事实的限制,胎儿并不具有民事权利能力,也无法享有民事权利。近几十年来,高科技的发展和工业的极度扩张,给人们的生活带来了很多的便利,而胎儿在生长发育过程中所面临的危险也显著增长。交通肇事、医疗事故、环境污染等事件层出不穷,要求保护胎儿利益的案件也越来越多,然而在司法实践中,法院处理此类案件时,对胎儿主体地位的认定和胎儿损害赔偿请求权的构成都没有统一的标准。胎儿作为未来潜在的民事主体,在人的生命发展过程中起着至关重要的作用。各国民法对胎儿利益的保护都给予了不同程度的关注,相比之下,我国大陆地区的民事立法对胎儿利益的保护则显得比较滞后,胎儿的保护非常有限。因此,完善胎儿保护的相关立法规定尤为迫切。本文主要从我国大陆地区对胎儿权益保护的相关案例出发,通过分析法官在审判过程中的不同的判决方法和依据,归纳当前我国法律在胎儿民事权益保护方面的不足以及法律应如何适应社会现实变化而得以完善。本文认为,侵害胎儿利益的行为较一般的侵权行为有着一定的区别,胎儿的主体地位的承认关系到胎儿利益的全面保护,如若不承认其主体地位势必给遭受侵权的胎儿以及其家人造成痛苦。因此,应赋予胎儿有限的民事权利能力,承认其主体资格。除引言和结语外本论文共分为四部分:第一部分:对胎儿是否具有民事权利能力的进行分析,从胎儿的生理学和法律含义入手,明确胎儿作为法律概念的内涵不同于生理学的含义,不能作阶段性的区分,胎儿作为法律概念的内涵是指存在于母体之内的整个阶段,即从受胎时起直至出生时止。最后介绍当前理论对是否赋予胎儿民事权利能力存在的争议,分析“否定说”和“肯定说”提出的理由以及所带来的问题。.第二部分:通过案例引出我国对于胎儿保护的立法以及司法的现状,立法上的不完善导致在司法实践中法官在审判过程中找不到法律依据,出现类似案件完全不同的审判结果。尽管我国《继承法》上已有保护保护胎儿继承利益的规定,但是这个保护是十分有限的,而对于胎儿是否享有受遗赠权的说法亦是模糊不清。第三部分:主要是通过第二部分所反映的问题,指出我国法律因为没有赋予胎儿的民事权利能力所导致的问题以及在对胎儿保护方面的不足之处。虽然对于侵犯胎儿权益的行为给胎儿和母体造成损害的,父母享有适当的救济权,但这种救济权并不能完全保障胎儿的利益。第四部分:关于如何建立胎儿的民事权利能力制度,除了要在民法总则中确立胎儿的民事主体地位,在分则中也要细化权利的种类,包括健康权、身体权、受抚养权、受遗赠权和损害赔偿请求权等权利,以及有关损害赔偿请求权的行使问题,力求做到对胎儿权益的全面保护。
[Abstract]:The traditional civil law theory advocates that the civil right capacity of the natural person starts with the birth and finally dies. Due to the limitations of the legal fact of the "birth", the fetus does not have the capacity to have a civil right or a civil right. In recent decades, the development of high-tech and the extreme expansion of the industry have brought a lot of convenience to people's lives, and the risks of the fetus in the course of growth and development have also increased significantly. There are more and more cases of traffic accident, medical accident, environmental pollution and so on. However, in the practice of the judicial practice, when the court deals with such cases, there is no uniform standard for the determination of the status of the body of the fetus and the composition of the claim for damages of the fetus. As a potential civil subject in the future, the fetus plays an important role in the development of human life. The protection of the interests of the fetus by the civil law of the country has given a different degree of attention, in contrast, the protection of the fetal interest by the civil legislation in the mainland of China is relatively late, and the protection of the fetus is very limited. Therefore, it is especially urgent to improve the relevant legislation of the protection of the fetus. Based on the related cases of the protection of the fetal rights and interests in the mainland of China, this paper analyzes the different judgment methods and bases of the judge in the course of the trial. It is concluded that the deficiency of the law of our country in the protection of the civil rights and interests of the fetus and how the law should adapt to the change of the social reality can be improved. The author holds that the violation of the fetal interest has a certain difference, and the recognition of the body status of the fetus is related to the full protection of the fetus's interests, and if it does not recognize its subject status, it will cause pain to the fetus and its family. Therefore, the limited civil rights of the fetus should be given, and the qualification of its main body should be recognized. In addition to the introduction and the conclusion, the thesis is divided into four parts: the first part: the analysis of whether the fetus has the capacity of civil right, starting from the physiological and legal meaning of the fetus, it is clear that the connotation of the fetus as the legal concept is different from the meaning of physiology, and cannot be distinguished in stages, The connotation of the fetus as a legal concept means the whole stage in the mother's body, that is, from the time of birth to the time of birth. In the end, the author introduces the present theory about the existence of the capacity of the fetal civil rights, and analyzes the reasons and the problems brought about by the "negative theory" and the "I'm sure.". The second part: through the case, our country's legislation on the protection of the fetus and the present situation of the judicial system, the imperfection of the legislation leads to the fact that the judge can not find the legal basis in the course of the trial, and the trial result of the similar case is completely different. Although the law on the protection of the child's inheritance interests has been established in the Law on Succession of the State, this protection is very limited, and the claim for the right to bequest for the fetus is also ambiguous. The third part: the problems reflected in the second part, pointing out that our country's law is not caused by the capacity of the civil right to be given to the fetus, as well as the deficiency in the protection of the fetus. While parents are entitled to the right to adequate remedies for the damage to the fetus and the mother for violations of the rights of the fetus, such remedies do not fully guarantee the interests of the fetus. The fourth part: In order to establish the system of the civil rights of the fetus, in addition to the establishment of the civil subject status of the fetus in the general principles of the civil law, the types of rights are also to be refined, including the right to health, the right of the body, the right to custody, the right to bequest and the claim for damages, etc., And the question of the exercise of the right of claim for damages, which seeks to ensure the full protection of the rights and interests of the fetus.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
[Abstract]:The traditional civil law theory advocates that the civil right capacity of the natural person starts with the birth and finally dies. Due to the limitations of the legal fact of the "birth", the fetus does not have the capacity to have a civil right or a civil right. In recent decades, the development of high-tech and the extreme expansion of the industry have brought a lot of convenience to people's lives, and the risks of the fetus in the course of growth and development have also increased significantly. There are more and more cases of traffic accident, medical accident, environmental pollution and so on. However, in the practice of the judicial practice, when the court deals with such cases, there is no uniform standard for the determination of the status of the body of the fetus and the composition of the claim for damages of the fetus. As a potential civil subject in the future, the fetus plays an important role in the development of human life. The protection of the interests of the fetus by the civil law of the country has given a different degree of attention, in contrast, the protection of the fetal interest by the civil legislation in the mainland of China is relatively late, and the protection of the fetus is very limited. Therefore, it is especially urgent to improve the relevant legislation of the protection of the fetus. Based on the related cases of the protection of the fetal rights and interests in the mainland of China, this paper analyzes the different judgment methods and bases of the judge in the course of the trial. It is concluded that the deficiency of the law of our country in the protection of the civil rights and interests of the fetus and how the law should adapt to the change of the social reality can be improved. The author holds that the violation of the fetal interest has a certain difference, and the recognition of the body status of the fetus is related to the full protection of the fetus's interests, and if it does not recognize its subject status, it will cause pain to the fetus and its family. Therefore, the limited civil rights of the fetus should be given, and the qualification of its main body should be recognized. In addition to the introduction and the conclusion, the thesis is divided into four parts: the first part: the analysis of whether the fetus has the capacity of civil right, starting from the physiological and legal meaning of the fetus, it is clear that the connotation of the fetus as the legal concept is different from the meaning of physiology, and cannot be distinguished in stages, The connotation of the fetus as a legal concept means the whole stage in the mother's body, that is, from the time of birth to the time of birth. In the end, the author introduces the present theory about the existence of the capacity of the fetal civil rights, and analyzes the reasons and the problems brought about by the "negative theory" and the "I'm sure.". The second part: through the case, our country's legislation on the protection of the fetus and the present situation of the judicial system, the imperfection of the legislation leads to the fact that the judge can not find the legal basis in the course of the trial, and the trial result of the similar case is completely different. Although the law on the protection of the child's inheritance interests has been established in the Law on Succession of the State, this protection is very limited, and the claim for the right to bequest for the fetus is also ambiguous. The third part: the problems reflected in the second part, pointing out that our country's law is not caused by the capacity of the civil right to be given to the fetus, as well as the deficiency in the protection of the fetus. While parents are entitled to the right to adequate remedies for the damage to the fetus and the mother for violations of the rights of the fetus, such remedies do not fully guarantee the interests of the fetus. The fourth part: In order to establish the system of the civil rights of the fetus, in addition to the establishment of the civil subject status of the fetus in the general principles of the civil law, the types of rights are also to be refined, including the right to health, the right of the body, the right to custody, the right to bequest and the claim for damages, etc., And the question of the exercise of the right of claim for damages, which seeks to ensure the full protection of the rights and interests of the fetus.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
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