论侵害胎儿利益的侵权行为

侵害胎儿利益的侵权行为,是指行为人由于过错侵害胎儿人身利益,或虽无过错,但依法应当承担民事责任的侵权行为。与一般侵权行为比较,侵害胎儿利益的侵权行为具有间接性、多样性、发生时间的特定性、损害事实认定的时间性、请求权行使的特殊性等特征。我国应借鉴台湾省立法模式,明确规定胎儿出生时为活体的,视为已经出生,用概括保护的办法保护胎儿利益,以追究侵害胎儿利益的侵权行为的民事责任。

On the Infringement Act of Aggression on the Right and Interests of the Fetus

The infringement act of aggression on the right and interest of the fetus refers to infringement of the personal interest of the fetus under mistaken conditions,or unmistaken infringement for which the doer must take civil responsibility in accordance with the law.In comparison with general infringement act,this type of behaviour has the characteristics of indirectness,variety,specified time of occurrence,timely identification of facts,peculiarity for the enforcement of the right to request,etc.It is advised to learn from Taiwan province in its legal model and clearly specify that the fetus born alive must be considered a life already born so as to protect its right and interest by means of generalization protection and to ascertain where the civil responsibility for the infringement lies.