胎儿的民事权利及其诉讼救济机制的完善

中图分类号：D915.2 文献标识码：A D0I:10.7535/j.issn.1671-1653.2025.05.009

Civil Rights of the Fetus and the Improvement of Litigation Relief Mechanisms

WANG Dexin，HAN Yingying (LawSchool，ShandongNormalUniversity，Ji'nan25o358，China)

Abstract: In recent years， cases involving fetuses，artificial test-tube babies，and frozen embryos have drawn considerable atention. However，there are stilldeficiencies in China's legislation for the protection of fetal civil rights and interests. The relevant provisions in the Civil Code of the People's Republic of China are relatively vague and imprecise. the Civil Procedure Law of the People' s Republic of China lacks clear regulations on litigation for the protection of fetal rights and interests. In civil law,it is advisable to define a fetus as "a life form conceived and developing in the mother's womb". Artificial test-tube babies and frozen embryos，as "quasi-fetuses"，can be protected in a similar way after being implanted into the mother's womb. Although fetuses have capacity for civil rights，their property rights should be limited to purely beneficial interests，and their personality rights should be restricted to material personality rights. On this basis，the litigation capacity of fetuses should be recognized，and a special litigation relief mechanism should be established around the supplementation of fetal litigation capacity，the timing of litigation，and the litigation procedure, so as to achieve the connection and integration of substantive law and procedural law in the protection of fetal civil rights and interests.

Keywords: fetus；civil right；capacity for litigation right； litigation relief procedure

一、引言

法律主体理论是整个法学理论体系的核心，“法律真正的目的，不在权利这里，而是在被授权者那里"，换言之，“主体当是法律所寻找的基点"[2]。（剩余13357字）