타인의 불법행위로 인한 태아의 손해배상 - 태아가 사망한 경우를 중심으로 -Compensation for the Loss Which Is Caused by Illegal Behavior of the Others in the Fetus - focus on the case of fetus' death -
- Other Titles
- Compensation for the Loss Which Is Caused by Illegal Behavior of the Others in the Fetus - focus on the case of fetus' death -
- Authors
- 사동천
- Issue Date
- 2008
- Publisher
- 중앙법학회
- Keywords
- 손해배상(Compensation); 태아(fetus); 불법행위(illegal behavior); 상속(succession); 권리능력(right ability)
- Citation
- 중앙법학, v.10, no.4, pp.33 - 72
- Journal Title
- 중앙법학
- Volume
- 10
- Number
- 4
- Start Page
- 33
- End Page
- 72
- URI
- https://scholarworks.bwise.kr/hongik/handle/2020.sw.hongik/22813
- DOI
- 10.21759/caulaw.2008.10.4.33
- ISSN
- 1598-558X
- Abstract
- Historically, common law courts and continent law did not permit wrongful
death actions for injuries suffered in the fetus. The fetus must be born alive in
order to acquire rights. This was because a fetus was considered a "single
entity" with his or her mother. And the right ability of the fetus is originated
from the Rome law, the ideology which the potential life right of the fetus be
protected is not reflected in this law. But currently, there is guaranteed to
protect a life of the fetus almost with like that of the person. Consequently,
even though the fetus born dead in illegal behavior of the others, his or her
right must be protected as against those who caused the death. Article 762. in
the civil law must be interpreted as the special regulation of article 3. Courts
generally must permit recovery of medical care and funeral and burial
expenses, with some going further to permit recovery based on the parent's loss
of a potential child's society or of the child's future earning capacity. Though
courts have been increasingly open to permitting civil recoveries for the loss of
an unborn child in American common law, but it could not be recognized to
all fetuses. Because the certain period undergarment fetus is uncertain that he or she will be born alive or not. Consequently, when the fetus is born,
positively the time which is the possibility of living is important. It is the fact
that the court must decide it's period. But the duration of 7 months which an
abortion is permitted in the mother and child hygienic law will become the
good standard.
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