Study On The Legal System Of The Right Of Residence

On May 28,2020,the Third Session of the Thirteenth National People’s Congress voted to pass the Civil Code of the People’s Republic of China,in which Chapter 14 of the Real Right Section specifically stipulates the right of residence system with six provisions,which indicates that the right of residence system has been formally established in the form of legal provisions in China,which is of great significance.Before the right of residence was formally written into the civil code,there were many cases of people creating the right of residence spontaneously in practice,and there were many disputes about the right of residence.According to the principle of legality of real right,judges cannot directly endow the real right effect of residence right within the framework of the existing legal system.Most judgments endow one party with the right of residence on the grounds of "public order and good custom" or "taking care of the weak",but this right is often difficult to realize due to the lack of real right effect.To some extent,the right of residence can alleviate the problem of non-compliance.But should not be ignored is that due to the abstract and general laws,coupled with the current laws and regulations are not perfect,the judicial organs in handling residency disputes will undoubtedly encounter many problems in practice,such as the judicial referee have different scales,the application of law have different specifications,and so on,these are likely to lead to chaos in the judicial the cases involved residency.Therefore,it is necessary to interpret and perfect the relevant laws and regulations of the current residence right through the research,so that it can really meet the needs of the society.This paper mainly carries out demonstration and research from the following four parts:The first part: The theory analysis of the residence right system.This part starts with the origin of the right of residence system and clarifies the function orientation of the right of residence system in Roman law.Then the concept,classification and function of the right of residence are elaborated in detail,and the necessity and essential characteristics of the legislation of the right of residence are analyzed.The second part: the judicial practice exploration of the residence right system.Through searching,summarizing and sorting out a large number of judicial decisions in China,this part first summarizes and generalizes the problem of the nature of the right of residence and the inconsistency of the judgment basis in the specific judicial practice,and further clarifies the necessity of the legislation of the right of residence.Then to these problems are evaluated and analyzed to understand the demand for the right of residence in judicial practice.The third part: the meaning and problems of the stipulation of the right of residence in the Civil Code of China.This part first compares the provisions of China’s Civil Code with the problems in judicial practice and the practical needs,clarifies what problems have been solved by the provisions of the right of residence in China’s Civil Code and what problems still need to be solved,so as to provide guidance for its improvement.The fourth part: the extraterritorial legislation of the right of residence system.This part is mainly to sort out the extraterritorial legislation of the right of residence,understand the development status of the right of residence system in the laws of different countries,draw from the useful experience,and point out the direction for the improvement of the specific provisions of the right of residence system in China.Part Ⅴ: Suggestions on the perfection of the provisions on the right of residence in the Civil Code of China.For the problems existing in the provisions of the right of residence in the civil code of our country,this part puts forward the corresponding suggestions,such as adding the legal right of residence,supplementing the rights and obligations of the right of residence holders and so on.