| Chinese scholars have given a number of different interpretations to the provision of "a fetus is deemed as having the capacity for enjoying civil-law rights" in Article 16 of the Civil Code, but there is still room for improvement in the interpretation to this provision. It seems that scholars are unable to rid themselves of the influence of the concept system of rights when analyzing this issue, and they all unconsciously follow the formal logic path from rights capacity to rights, which leads to the theoretical focus on the question of whether the fetus has rights capacity. However, the concept system of rights lacks explanatory power in the situation where the subject does not exist definitely. The far-fetched use of the concept to explain the protection of fetal interests will destroy the stability and logical continuity of the system. We may accept the deficiency of the concept system of rights, and make up for it with the concept of estados de vincula??o (state of constraint), which belongs to the category of objective law, so as to create a situation in which the two concept systems, namely the system of subjective rights and objective law and the system of rights and estados de vincula??o, go hand in hand. When the subject exists, it is described by the concept of right; when the subject is absent, it is defined by the concept of estados de vincula??o. As far as estados de vincula??o is concerned, although there is no subject, the interest is still under the protection of law. After the subject appears, it becomes a right. In the concept of estados de vincula??o, no question is asked about whether one has the rights capacity, whether one is the subject of rights, or what kind of legal relationship one has. Besides the protection of the interests before birth, the concept of estados de vincula??o can also be applied to the protection of the interests of the deceased and the interests before the establishment of the legal person. |
京公网安备11010102006664号 京ICP备2023015853号