Research On The Right Of Residence In The Compilation Of Civil Code

The residence right system originated in Roman law,and was later widely promoted by the countries of the civil law system.The original intention of its establishment was to protect the living interests of family members,and later it had a new development in the inheritance of the civil law system.China’s earliest "Right of Property Law" in 2002 stipulated the residence right system.At this point,the residence right began to become a hot issue in academia,and was finally deleted in the fifth draft of the draft due to its narrow application scope.In recent years,there have been more and more interpretations and practices of residence rights in civil and judicial practice,and the voice of the residence rights system has gradually increased.Civil law scholars also continue to dig deeper into the new functions of the residence right system,look for the living space of the residence right system in our country,and support the regulation of the residence right.The Nineteenth National Congress of the Communist Party of China also proposed "let all people live in residence" to provide policy support for the rooting of the residency system.In the process of compiling the Civil Code,the residency system was once again included in the draft.The establishment of the residence right system will provide a legal basis for China’s judicial practice and provide new ideas for solving the problems of housing pension and alleviating housing pressure in China.Therefore,it is necessary to discuss the essential attributes,functional values and existing legislation of the residence right system based on China’s national conditions.In addition to the introduction and conclusion,this article mainly includes the following four parts:The first part mainly elaborates the concept analysis and essential attributes of the residence right system.The right of residence in Roman law has a strong guarantee of the weak,which was determined by the property system,social structure and ethical customs of Rome at that time.The right of residence contains two essential attributes: the servitude attribute that restricts the circulation of the right of residence to protect the vulnerable groups,and the real right attribute as a tool that separates the ownership and use rights of property.If we only pay attention to the servitude of the right of residence,the function of the right of residence system will be imprisoned,and the applicable space will be greatly reduced.On the contrary,strengthening the property rights of the right of residence can not only realize its proper function of guaranteeing the living interests of the weak,but also play an important role in providing housing for the elderly,solving people’s housing problems,and enriching the use of property.The second part mainly discusses the actual needs and value goals of China’s stipulated residence rights system.Before the establishment of the right of residence,the public can only arrange their own property by way of debtorization.This method cannot accurately express their true meaning of disposition.In the face of the case of the right of residence,the judge has no clear basis and can only explain To protect the parties ’residency rights,which led to the court ’s varying standards of judgment.The development of society urgently needs the establishment of the residence right system.The value objective of China’s enactment of residence rights system is mainly reflected in four aspects: first,to protect the residence interests of vulnerable groups.There are still quite a few disadvantaged groups whose interests in society need to be protected.This is also what we mean by "letting all people live and live".Second,provide institutional support for housing pensions.After the establishment of the residence rights system,the elderly can solve the problem of old-age care and relieve the pressure of society and children by transferring houses and establishing residence rights for themselves.Third,ease the housing pressure in our society.China ’s current high housing prices and difficulties for ordinary families to buy a house.After the establishment of the residence right system,the housing problem can be solved by establishing residence rights on other people ’s houses.Fourth,enrich the use of property.In the occasions of time-shared resort hotels and cooperative housing construction,the residency system is helpful to clarify the rights and obligations of the parties concerned.The third part mainly examines the legislative overview of the residence rights system in France,Germany and Italy in the civil law system.The residence rights system in the French Civil Code prohibits the lease,transfer and inheritance of residence rights,and the way of establishment has changed from the establishment of testaments to the establishment of contracts,and the Roman law is "not eliminated because of unexercised" Change to "30 years of non-exercise of rights to eliminate".The Italian Civil Code still restricts the circulation of the right of residence,and makes detailed provisions on the rights and obligations of the holder of the right of residence.The German Civil Code places the right of residence under the restricted servitude,stipulating that the right of residence cannot be transferred and inherited,and can only be rented out with the consent of the owner;The Law stipulates long-term residency rights,permits the transfer and inheritance of persons with residency rights,and may make any reasonable gains.In the process of inheriting the residence right system,France,Italy,and Germany combined with their own social and economic conditions and made certain changes to the residence right system.By comparing and analyzing the residence rights systems of the above three countries,we can get the following enlightenment: China should eliminate the servitude of residence rights.The fourth part mainly discusses the legislative construction of the residence right system in our civil code.First of all,it is reasonable for our country to adopt the mode that the property rights are stipulated separately in terms of the choice of legislative style,but the provisions on the residence right system are relatively general.Second,the subject of residency should be a natural person,and legal persons cannot be the subject of residency.In addition,it is necessary to distinguish between the subject of residency and the cohabitant;the object of residency should be the whole or part of another person ’s house,as well as ancillary facilities,and the leased house cannot be the object of residency.Thirdly,the method of obtaining the right of residence should include the method of obtaining a contract,the acquisition of the will of the will,the obtaining according to the law,the obtaining of the referee,etc.;the method of signing the contract should adopt the registration doctrine,and the other way of obtaining the registration confrontationism;The acquisition should not be restricted to free,and it is reasonable for the draft to add a proviso.Regarding the content of the right of residence,the principle of the right of residence of the right of residence to the circulation of houses should be taken as the principle,with the exception of restricted circulation,but the opposite is true in the case of security.In addition,the obligee ’s obligations should include the obligation to use the house and its ancillary facilities reasonably,the obligation to pay for the daily cost of the house ’s daily use,and the duty to pay attention to the kind manager of the house.