타인의 불법행위로 인한 태아의 손해배상 - 태아가 사망한 경우를 중심으로 -

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.