On The Personal Servitude Breakthrough Of The Habitatio

As one of the legal systems in Roman law,the system of habitatio was adopted by the countries of continental law system.On the basis of the original system,these countries make different breakthroughs in different ways and to different degrees to meet the social needs of their own countries.At present,China has not established the right of residence under the system of real right,but has mentioned the right of residence with personal service in the field of marriage law,but has not made specific provisions.The civil code(draft)once again included the right of residence in the usufructuary right system,but still insisted on the personal servitude of the habitatio.However,from the perspective of China’s social reality,whether it is the level of legislative feasibility or the level of social reality demand,the breakthrough of habitatio’s personal servitude is due.Breakthrough of habitatio’s personal servitude,can the habitatio from living in the field of marriage and family security rights to live within the scope of social security rights,can expand the property of the habitatio using functional again,meet the social needs of multi-level,therefore,breakthrough of habitatio’s personal servitude is the necessary requirement of our habitatio legislation,around this proposition,this paper mainly discussed from four parts:The first part is to analyze the causes of the personal servitude of the habitatio,conclude the legislative purpose of the habitatio through the induction of the social basis of Rome at that time,and combined with the specific performance of the personal servitude characteristics of the habitatio,draw the conclusion that personal servitude is the system design for the purpose of safeguarding the habitatio.The second part introduces the practice of extraterritorial law for the personal servitude breakthrough of the habitatio,and on the basis of sorting out the different paths of the civil law countries that inherit the habitatio to the survivability breakthrough of the habitatio will expand the economic function of the right to reside.The third part is based on China’s real right system,social basis,economic development and other realistic conditions,combined with the institutional characteristics of the habitatio under the limitation of personal servitude,the analysis concludes that the legislation of the habitatio in China will be stuck in a dilemma.The fourth part discusses that the breakthrough of habitatio’s personal servitude will expand the inhabitant security function and expand the property function.On the one hand,the expansion and expansion of this kind of function endows the right of residence with strong institutional advantages and guarantees the existence and development of the system of the habitatio.On the other hand,it can meet the realistic demand for the habitatioe at the individual level,the legal level and the public interest level,and conform to the social development.Therefore,the habitatio in China’s civil code should be the right that breaks through personal servitude.The fifth part summarizes the characteristics of the residence right that breaks through laborability,and proposes specific legislative proposals on the right to reside in accordance with the content of the civil code(draft).