Research On The Right Of Residence System In "Civil Code"

In May 2020,the Civil Code was promulgated,establishing the basic structure of the right of abode system,which is one of the highlights of the Civil Code.In terms of its functions,the right of abode system serves both a guarantee and a relief function,satisfies the basic needs of a given person for survival and maximizes the "investment"function of real estate.This has a positive impact on the protection of the right to subsistence of specific groups,the realization of the benefits of real estate,and the promotion of diversification of the means of providing housing security.From different perspectives,the nature of the residency system can be defined in many ways.From the Roman law tradition,the right of residence is a kind of personal servitude;from the modern legislative perspective of "making the best use of things,"the right of residence has the distinctive property right of usufruct.The value orientation of the residency system determines the choice of the goals pursued by the design of the residency system,among which ensuring social equity and pursuing social order and security are the two value orientations pursued by the residency system.An examination of the legislative experience of the residency systems in France,Germany,Britain,and the United States shows that the personal dependence of the residency system is not unshakable,but may have a certain degree of transferability and does not require absolute compliance with the principle of free establishment.The Civil Code’s residency system is still not sufficiently adaptable to the existing property rights system,which may cause systemic risks by only emphasizing its easement properties and ignoring its usufruct properties.Therefore,it is necessary to balance the interests and needs behind the two properties in the system design.The residency system of the Civil Code is faced with deviations in function and value,conflicts with related rights that need to be reconciled,difficulties in preventing the malicious creation of residency rights,and narrow application space,which need to be overcome by further institutional design.The design of the residency system in the Civil Code should not only meet the needs of specific people to realize their residential interests,but also give full play to its characteristics as a usufructive property right so as to realize the efficacy of "making the best use of things".Therefore,while emphasizing the realization of the traditional goals of the residency system,it is also necessary to pay attention to its hidden "investment" function.In addition,the residency system of the Civil Code should be based on the original purpose of protecting the housing interests of the disadvantaged groups;the interpretation of the relevant provisions and key concepts of the residency system should be strengthened so as to enhance the operability of the system in judicial decisions and to unify the decision criteria;the issue of malicious creation of residency should be dealt with according to the rule of good faith acquisition;and the applicability of the residency system itself should be strengthened.The improvement of the Civil Code’s residency rights system should also be directed toward allowing the acquisition of residency rights for a fee and making them transferable,so as to make use of their economic efficiency as a special type of usufruct.