致胎儿死伤的刑法评价

国内关于胎儿性致死伤的讨论,往往忽略中外刑法在是否规定堕胎罪问题上的明显差异性;自愿堕胎可谓一种自伤行为不构成犯罪,计生部门依法强制堕胎因存在违法性阻却事由而不构成犯罪;凡是违背孕妇意愿伤害胎儿(未导致孕妇死亡),致胎儿在母体内死亡的,或者在母体内受到重大伤害但经过治疗而没有留下后遗症的,以及在母体内受到严重伤害留下后遗症以致出生后不久死亡或者形成严重残疾的,都是对母体健康生育机能的侵害,故意为之的构成故意伤害罪,过失为之的构成过失致人重伤罪。

Criminal Law Judgment on Conducts Causing Injuries or Death to the Fetus

In our country,discussions on conducts causing injuries or death to the fetus often neglect the apparent differences that whether abortion is forbidden by criminal laws in different countries.This paper holds that in our country,voluntary abortion is no crime but self-injury.Compulsory abortion which is required by the family planning department is a justifiable defense for illegal violation of criminal law.However,those who,against the pregnant woman’s will cause injuries to the fetus and lead to its death within the womb of the pregnant woman(without causing the woman’s death);or cause severe injury to the fetus within the pregnant woman’s womb but leave no sequela upon treatment;or cause severe injury to the fetus within the pregnant woman’s womb and the sequel result in death soon after being born or severe disability,shall constitute the crime of intentional injury or the crime of negligent injury causing severe harm,since such conducts have damaged the healthy fertility of a pregnant woman.