The criminal law protection of fetus

Ni Yequn

   China's criminal law in the fetus protection, in addition to the provisions of the pregnant women should not be sentenced to death by the indirect protection, is almost a blank. Fetal protection seriously very, in the area of civil law has been fruitful, but basically in the field of criminal law has not been systematically investigated the people, not its own point of view for a long time. After the mid twentieth Century, the fetus protection has been a breakthrough in the protection of criminal law, but in human life was still stick to the traditional view, believe that human life begins at birth. However, with the development of biological science and medical technology, due to drugs, chemicals and radiation effects, intentionally or negligently cause fetal malformation or brain disorders increasing cases of such cases, how to deal with? That a fetus can become the mayhem and murder? The criminal law protection to the fetus in this study.

   In the criminal law, the crime of intentional homicide and intentional injury crime object is the people's life and health, and the fetus is not the legal meaning of "people", therefore, the object of crime is based on "people" or "people" in the crime of aggression, the fetus is not a crime against the law, not criminal law protection the law, therefore, the damage of fetal life and body, generally do not constitute a crime. However, according to China's "serious human identification standards" provisions of article Seventy-eighth, "women damage caused by premature, stillbirth, premature separation of placenta, abortion complicated by hemorrhagic shock or severe infection" belong to serious injury; according to the "standard" identification of the body injured forty-second, "damage to pregnant women abortion", belong to minor injuries. Accordingly, injury cause stillbirth or inevitable abortion pregnant women respectively belong to serious injury and minor injuries, intentional injury crime, criminal responsibility shall be investigated according to the behavior of people. This can be called "maternal damage" and "maternal function damage", which harm the fetus, as is the maternal part or maternal physiological damage, the crime of intentional injury. Because here cause stillbirth and inevitable abortion in pregnant women, is the premise of fetal injury, visible, just the right of life and health right of the object, the subject is not the right of life and health right. So, in the absence of injury in pregnant women, only under the condition of fetal harm, it should be how to deal with the problem. Therefore, some scholars try to approach through the interpretation of criminal law to solve this problem, should consider the behavior of fetal harm identified as to after the birth of the "people". Such as the Japanese scholar Professor Fujiki Hideo think, should be the maternal fetal harm as the birth at the time of the "human" damage, will be a certain stage of fetal interpreted as "people", so as to confirm the establishment of the crime of intentional injury.[i]  Many countries have adopted this view court cases that constitute the crime of fetus. For example, in 1961 the German Schally Aed (Thailidomide) drug cases, pregnant women during pregnancy, taking Schally Aed sedative, because of the role of drugs, growth and development and the obstruction of fetal limbs, so that after the birth, formation of deformed children, but the mother's body or health without adverse effects, but the effect of treatment of insomnia. In this case, the drug's form for the deformed children, whether it should be negative manslaughter responsibility, has caused heated debate. Prosecutor in the drug influence fetal development and impede the psychosomatic healthy mothers normal role, holds that the mother was hurt crime, but the prosecution. Court held that the fetus and the mother is a two independent living body, although fetal dependence exists in the parent, but each has an independent organ with the mother, was not part of a matrix. Therefore, the drugs for the health of the mother with no adverse effects on maternal, concerned, since no room for the establishment of injury crime. As for the fetal harm, the harm behavior (affect drug) point in time, also was not hurt crime; but because of the influence of the fetus after birth, human body function, has prejudice, so in the time of birth, began to constitute assault.[ii] Finally, people responsible for the judgment of the court pharmaceutical company negligent injury on after the birth of the people. Japan also has a similar case. Some Japanese factories in Xiongben for wastewater, containing organic mercury into the sea, water pollution, to the mother eating contaminated fish, the fetal brain tissue damaged by organic mercury, arising from the so-called fetal Minamata disease patients. Xiongben District Prosecutor's office said that the factory discharged wastewater, the harm to the fetus, its harm results and spread has been born "people", "people" should be the negative damage responsibility, the company president and director of the two, to the business negligence crime prosecution.[iii] The first instance judgment that the establishment of business negligence causing death, the reason is, on fetal death, although in the fetal lesions point does not exist yet belong to the elements of the "people", but "people", because the fetus has the function of embryonic, so, in the fetal disorder, complete cause after the birth of the "people" the death risk, at the same time, since the fatal results point is "people", so, act as "people" do not exist even in the implementation, the establishment of does not prevent crime.[iv] After the mid twentieth Century, in view of America critiques, courts began to change in attitude, have abandoned the precedent, that fetal birth to live birth, the result is the birth before the infringement to live, have to claim damages for violation; before birth and death, no deaths caused by the proposed method v..[v]

Chinese scholar Zhang Mingkai also agreed to this view, he thinks, fetal damage caused is after the birth of the "people" of the harm, a serious violation of the "people" after the birth of law, with the necessity of punishment. But he thinks, because the object of the crime of intentional injury is his "people" of the body, and the fetus is not human, elements of fetal harm behavior does not accord with the "others", the damage identification for the crime of intentional injury is still an obstacle, because the behavior of fetal harm as hurt him, is not conducive to the analogy human behavior interpretation, in violation of the principle of legally prescribed punishment too. He believes that "if we can prove in fetal injury cases, fetal birth to people is to harm behavior, namely to hurt people, do not violate the principle of legality". Therefore, he used the isolation crime about the interpretation of criminal law principle of time: to urgent danger has interests behavior, when the natural behavior of the perpetrators of fetal harm, because of the risk of damage to the behavior of "people" not urgent, so it is only a preliminary act; and when the fetus born "people", "people" of the risk of injury is urgent, leading to the "people" harm result. The body movement period and the harm is harm for the separation of start time: actors in the implementation of fetal harm behavior, because of the risk of injury "people" of the body is not urgent, not hurt hands; but the fetus is born to the world, the fetal harm reality previously is harmful behavior the "people", so he has to harm behavior; then, conduct in the hands when they exist as hurt crime "".[vi]

However, there exist some problems, this view first, the unborn fetus interpreted as analogical interpretation, is contrary to the principle of legality, too. Otsuka Hito thinks, "this is to give the fetus death crime penalty lay the basis for his theory, however, are beyond the boundaries of existing law explanation too. That is, whether it is a crime or damage on manslaughter, criminal law is the predetermined 'people' damage, therefore, should be considered in the implementation of infringement point clearly need to 'human' existence......".[vii] Secondly, the crime of intentional injury is a typical status crime, the law (damage results) once, crime of the crime, then even if the law is to state facts, and will not be evaluated as the facts of the crime. After the behavior of fetal harm has already happened and is associated with the presence of certain results, the crime should be accomplished, but said that the injury had not yet started, it is difficult to make out a good case. Therefore, against fetal interests exist objectively, and will undoubtedly have a penalty, especially in our country, did not provide the crime of abortion, infanticide, fetal protection of the interests of the law is completely blank, this paper argues that, fetal interests to be protected fully complete must be from the legislative confirmation is "legal status of fetus".

    Fetal protection of criminal law is the plight of the present laws that the fetus is not caused by the "people". What is the law of "people"? The traditional civil law theory believed that, human life, begins at birth, and finally death. That is to say, after the birth to people before they are born, not people. Although born standards there are different theories in civil law theory, such as pain, said a portion exposed said, all exposed said, breathing independently, but these theories differ only in the fetus when the "nuances" sooner or later in time. For a long time, affect the life circle of the criminal law by the civil law theory about human start and dominant, almost no criminal law itself. In fact, in the criminal law, how the status of how concepts, people, related to the crime is established, so its importance is self-evident. The article thinks, in the theory of criminal law, human life beginning period should have their own point of view, human life should be the level of development and modern medicine to adapt, should not be subject to the "begins at birth, the theory of civil law and finally death".

First, about the start of life problem, have no explicit provisions of the criminal law, criminal law scholars on this issue has long been does not have its own theory, has long been affected by the civil law about the human life from birth right system and the theory of. Power system was first established in the French civil code, the goal is to break through the feudal hierarchy, requires equal protection of each individual the same legal status and by the law, and thus provides a natural person since birth will all have the capacity for rights. Visible, civil right ability system is to solve the problem of the rights and obligations of a natural person. Due to limited to the scientific development and cognitive ability, believe that the fetus to maternal part, can not enjoy the rights nor obligations, so there is no need to give the fetus to right ability. But the modern bioethics think, "man" must have two conditions: one is life; two is to belong to the most advanced life circle of species. The fetus will have these two factors, the process of fetal development is independent of the formation of fetal life, it is different from the independent living body, two conditions to the natural person shall have to measure fetal, that has elements of personality of natural person.[viii] "The fetus is not an isolated life, but actively, keen to humans, they have feelings, understanding, learning ability and other strange potential."[ix] Since modern science has proved that the fetus is also a life body, has the feeling, understanding and learning ability, it should be admitted that the fetus is a legal person, the right of life and health right which should be respected and protected by the law, giving the fetus as the basic human right to life, the most important is the inevitable. People are all scientific basis, any scientific purpose of human existence and development, the establishment of legal science is for the purpose of human existence and development, the law should be established for the people, it is not the ultimate goal of itself to the pursuit, but people have no alternative against one's will use in the condition of means. Only in biology, physics approach to the definition of life, is consistent with the protection of the right to life, protected from danger of life starting from different social, policy, ethnic view.[x] In order to protect the legal interest of criminal law for the purpose, to human life or health of the protected object, since the modern bioethics think the fetus is a life, have the personality of natural person, so, the baby should be the legal interest of criminal law. The legislation of criminal law and civil law in the criminal law of different interests, they need not completely confined to the theory of civil law, we can put aside the right ability theory to explore the legal issues of fetal.

Second, the purpose of criminal law is to protect legal interests, rather than the protection of the rights of unborn fetus, although it may because the law does not enjoy certain rights and obligations, but life interests shall be protected by law. The life and the right to be different, what time to start the natural person entitled to civil rights, when citizens enjoy what constitutional rights, can be defined by law, but what a life time not prescribed by law. The German scholar Planck thinks, the interests of the fetus is not right, but belong to life Rechtsgut, life interests and ownership is absolutely right is different, it is not right, we can only say their rights to life Rechtsgut enjoy. Life Rechtsgut is before law, human nature is the manifestation and natural to create a. Life performance, is the essential biological autologous, biological autologous and was therefore its content, any person has the right to life are legal, the claim without any hindrance or obstacle. Any of the human natural growth of nuisance or deprivation, both against the law of life. The so-called health damage, is a nuisance for the development of life. Fetal interests infringed should be considered the life process is hindered, did not accept the natural and healthy living organisms to create the. Binding laws in this area should be a natural phenomenon, can not be ignored. Therefore, what is the health damage, not pure logical concept of legal technology and decision, health law itself is from creation, which is a natural, when the law rules and give a certain legal effect, validity of natural admit the nature.[xi]  

Third, the criminal law theory thinks, injury is the physiological function of human damage, even if the human physiological function disorder, or a health condition of adverse alteration. The fetus has the ability of natural development, also has the "physiological" survival combined function. In the fetal stage before birth, there is damage to protect the interests of, also may be violated since the occurrence. The concept of harm, although not hurt by the state is the premise of the logic, but the fetus is to "people" and gradually grow, and also has the "people" entity, so the harm to the fetus, has harm to the "people".[xii] The scholar thinks, the fetus is life "people", called "growth of embryonic life", some say, fetal refers to "from conception grow on the criminal law (NATURAL) life period of"[xiii] .

Fourth, from the legislative point of view, the subject of the right to life that the fetus is legislative trend. At present, the world has 9 countries constitution stipulates clearly the fetal life right. In American, although not recognized the fetus is the subject of the right to life, but viable fetus is subject to legal protection, therefore, have to admit viable fetus rights and its dominant position in fact. In April 1, 2004, the president signed American Bush fetal bill of rights "victims act" violence unborn, will hurt the fetus in pregnant women as a criminal offence. Its origin is 2004 in America Pedersen a corpse two homicide cases. The decision of Pedersen wife first-degree murder and two counts of murder and infanticide. In addition, many states America, has allowed for birth before the damage and deaths have proposed the illegal people death action. In Australia, also have the protection of fetal life interest case. They believe that, when the injury caused by pregnancy termination pregnancy and abortion, soon against the health right of pregnant women, but also violates the early fetal life interests. In Germany, by the courts through judicial review to determine fetal life right subject. The German courts think, "basic law" second paragraph second about "everyone should enjoy the right of life" in the provisions of the "everyone" means that every living person, or in other words, each have a life of the individual; therefore, "everyone" also includes the unborn human, and not limited to all people born after the "". The protection of the right to life should include to still in the mother's body in the development of life, because the biological knowledge basis, 14 days after conception, have been independent of the mother's life, which began development is a continuous process a cannot distinguish stage, even after birth, this development continues in; and, from the legislative purpose of the basic law, protect the right to life of is still in the development of the protection of life. On the protection and development of life, provided from section first basic first on human dignity, human life once existed, it has the right of human dignity. According to the basic law spirit, countries must give priority to the protection of the embryo's life.[xiv] The organization of American States in November 22, 1969 by "the American Convention on human rights" fourth (right to life): "everyone has the right to respect the life. This right from the embryo when he should be protected by law. No one shall be arbitrarily deprived of life." In 1989 October in the international criminal law held in Vienna by the Association for the fourteenth session of Congress "about criminal law and modern biomedical technology problem resolution" also pointed out: "in principle should be combined with the sperm and egg from the time when the human life protection, regardless of the early fetus should be known as the 'people' or a enjoy basic rights' existence'...... ".

Fifth, legislation to address the fetus protection of criminal law is more urgent for our country. Provisions of China's no crime of abortion and infanticide, criminal law protection of fetus is blank. In foreign countries, the traditional theory although also believe that human life begins at birth, finally died, but the crime of abortion provisions to protect the legal interests of fetus. Such as the Japanese scholar thinks, the provisions of the criminal law crime of abortion, independent protection of fetal life. The action begins, there is only the special object of the fetus, can not be established to the other charges outside in the crime of abortion.[xv] Crime of abortion, refers to the natural childbirth, artificially from the mother or fetus from separation behavior. Generally speaking, the protection of law crime of abortion, fetal life, physical safety, followed by the mother's life, physical safety. Abortion cause fetal or maternal discharged from the fetal killed in utero, constitute the crime of abortion accomplishment. Abortion is generally divided into two categories: his crime of abortion and other crime of abortion. The latter, and can be divided into agreed to abortion, abortion, different agreed business crime of abortion and agreed to abortion, abortion deadly injury blame does not agree with the deadly injury blame, business abortions injury crime etc.. In some countries, also stipulates the infanticide, infanticide is generally refers to the mother in the production or Fu production after the infants born to kill behavior. In general, stipulates the crime of abortion and infanticide, the protection of the fetus is still incomplete, but still on fetal interests or some protection, but China's criminal law, the law has no protection of fetus. Today, in our country criminal abortion and infanticide is not realistic, therefore the interpretation and legislation to resolve the problem of fetal interests protecting becomes more prominent.

In short, the criminal protection of the fetus is most scholars call. For example, Japan Otsuka Hito, although think, Minamata decision, "exist beyond current interpretation of law limits too", but, "in today's society, cause fetal death behavior will undoubtedly have a penalty, therefore, it is necessary to seek the legislation on its rapid solution".[xvi] In recent years, our civil law scholars are appealing to perfect the legislation on the protection of the fetus. If Jiang Ping thought "the fetus was born to sooner or later, so the future interests to keep. So, it is prescribed fetal right ability."[xvii] Mr. Liang Huixing also called for: "protection legislation should pay attention to the fetus, Shun human sentiment and progress trend of civil law."

Three, against fetal rights crime

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