胎兒民事權(quán)利能力研究
發(fā)布時(shí)間：2019-06-18 08:32
【摘要】：傳統(tǒng)民法理論主張自然人的民事權(quán)利能力始于出生,終于死亡。由于“出生”這一法律事實(shí)的限制,胎兒并不具有民事權(quán)利能力,也無(wú)法享有民事權(quán)利。近幾十年來(lái),高科技的發(fā)展和工業(yè)的極度擴(kuò)張,給人們的生活帶來(lái)了很多的便利,而胎兒在生長(zhǎng)發(fā)育過(guò)程中所面臨的危險(xiǎn)也顯著增長(zhǎng)。交通肇事、醫(yī)療事故、環(huán)境污染等事件層出不窮,要求保護(hù)胎兒利益的案件也越來(lái)越多,然而在司法實(shí)踐中,法院處理此類案件時(shí),對(duì)胎兒主體地位的認(rèn)定和胎兒損害賠償請(qǐng)求權(quán)的構(gòu)成都沒(méi)有統(tǒng)一的標(biāo)準(zhǔn)。胎兒作為未來(lái)潛在的民事主體,在人的生命發(fā)展過(guò)程中起著至關(guān)重要的作用。各國(guó)民法對(duì)胎兒利益的保護(hù)都給予了不同程度的關(guān)注,相比之下,我國(guó)大陸地區(qū)的民事立法對(duì)胎兒利益的保護(hù)則顯得比較滯后,胎兒的保護(hù)非常有限。因此,完善胎兒保護(hù)的相關(guān)立法規(guī)定尤為迫切。本文主要從我國(guó)大陸地區(qū)對(duì)胎兒權(quán)益保護(hù)的相關(guān)案例出發(fā),通過(guò)分析法官在審判過(guò)程中的不同的判決方法和依據(jù),歸納當(dāng)前我國(guó)法律在胎兒民事權(quán)益保護(hù)方面的不足以及法律應(yīng)如何適應(yīng)社會(huì)現(xiàn)實(shí)變化而得以完善。本文認(rèn)為,侵害胎兒利益的行為較一般的侵權(quán)行為有著一定的區(qū)別,胎兒的主體地位的承認(rèn)關(guān)系到胎兒利益的全面保護(hù),如若不承認(rèn)其主體地位勢(shì)必給遭受侵權(quán)的胎兒以及其家人造成痛苦。因此,應(yīng)賦予胎兒有限的民事權(quán)利能力,承認(rèn)其主體資格。除引言和結(jié)語(yǔ)外本論文共分為四部分:第一部分:對(duì)胎兒是否具有民事權(quán)利能力的進(jìn)行分析,從胎兒的生理學(xué)和法律含義入手,明確胎兒作為法律概念的內(nèi)涵不同于生理學(xué)的含義,不能作階段性的區(qū)分,胎兒作為法律概念的內(nèi)涵是指存在于母體之內(nèi)的整個(gè)階段,即從受胎時(shí)起直至出生時(shí)止。最后介紹當(dāng)前理論對(duì)是否賦予胎兒民事權(quán)利能力存在的爭(zhēng)議,分析“否定說(shuō)”和“肯定說(shuō)”提出的理由以及所帶來(lái)的問(wèn)題。.第二部分:通過(guò)案例引出我國(guó)對(duì)于胎兒保護(hù)的立法以及司法的現(xiàn)狀,立法上的不完善導(dǎo)致在司法實(shí)踐中法官在審判過(guò)程中找不到法律依據(jù),出現(xiàn)類似案件完全不同的審判結(jié)果。盡管我國(guó)《繼承法》上已有保護(hù)保護(hù)胎兒繼承利益的規(guī)定,但是這個(gè)保護(hù)是十分有限的,而對(duì)于胎兒是否享有受遺贈(zèng)權(quán)的說(shuō)法亦是模糊不清。第三部分:主要是通過(guò)第二部分所反映的問(wèn)題,指出我國(guó)法律因?yàn)闆](méi)有賦予胎兒的民事權(quán)利能力所導(dǎo)致的問(wèn)題以及在對(duì)胎兒保護(hù)方面的不足之處。雖然對(duì)于侵犯胎兒權(quán)益的行為給胎兒和母體造成損害的,父母享有適當(dāng)?shù)木葷?jì)權(quán),但這種救濟(jì)權(quán)并不能完全保障胎兒的利益。第四部分:關(guān)于如何建立胎兒的民事權(quán)利能力制度,除了要在民法總則中確立胎兒的民事主體地位,在分則中也要細(xì)化權(quán)利的種類,包括健康權(quán)、身體權(quán)、受撫養(yǎng)權(quán)、受遺贈(zèng)權(quán)和損害賠償請(qǐng)求權(quán)等權(quán)利,以及有關(guān)損害賠償請(qǐng)求權(quán)的行使問(wèn)題,力求做到對(duì)胎兒權(quán)益的全面保護(hù)。
[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.
【學(xué)位授予單位】：南昌大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：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.
【學(xué)位授予單位】：南昌大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D923
【相似文獻(xiàn)】
相關(guān)期刊論文 前10條
1 陳洪兵;唐海山;;胎兒利益的民事保護(hù)[J];南通職業(yè)大學(xué)學(xué)報(bào);2007年02期
2 蘇振華;李行;;關(guān)于胎兒權(quán)利保障的膚淺認(rèn)識(shí)[J];群文天地;2011年10期
3 王韻;;論胎兒的民事法律地位及權(quán)利的保護(hù)[J];企業(yè)家天地下半月刊(理論版);2007年04期
4 付翠英;論胎兒的民事法律地位[J];廣西政法管理干部學(xué)院學(xué)報(bào);2001年01期
5 袁小s，
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