Study On The Application Of The Right Of Residence System In The Property Right Section Of The Civil Code

The incorporation of the right of residence into the property rights section of the Civil Code is a far-reaching creation of a system from scratch.Its purpose is to meet the needs of specific groups of people for living and to provide an effective way to diversify the forms of housing ownership.As a new thing in China,the establishment of the right of abode system at the legal level is only a beginning,the life of the law lies in its implementation,how to correctly and effectively apply the right of abode system in judicial practice is the focus of this paper.Based on the analysis of the existing norms of the right of abode in rem,this paper lists four types of situations in which the right of abode system may be applied,and puts forward the limitations of its application in terms of establishment,scope of subject and object,legal effect and scope of competence.By combining the experience of the application of the right of abode system in foreign countries,and by effectively linking theory and judicial practice through the use of legal interpretation and other methods,we further put forward targeted suggestions to improve the application of the right of abode system in the property rights section of the Civil Code,and strive to achieve the legislative purpose and value function of the right of abode,in order to achieve the organic unity of the legal application of the right of abode and social effects.The main part of the article is divided into five chapters:The first chapter: an overview study of the right of abode system,is divided into three parts: the first and second sections introduce the history of the origin of the right of abode in Roman law,as a basis for analyzing the concept of the right of abode.The second section discusses the nature of the right of abode in the light of the characteristics of different eras,mainly including the nature of easement and property,emphasizing that the right of abode has a dual nature,and suggesting that in order to maximize the function of the right of abode system,the property nature and the investment value of the right of abode should be explored and studied.This chapter mainly prepares the necessary ground for the subsequent discussion.The second chapter: Study on the development of the right of abode system in the property division of the Civil Code is divided into two parts: the first section summarizes the theoretical disputes and judicial precedence of the right of abode in China;the second section indicates the current legislative situation of the right of abode in China and clearly interprets the legislative purpose of the right of abode,on the basis of which the legal rules of the right of abode in China are interpreted purposefully,including the legal status of the right of abode The legal rules of the right of residence in China,including the legal status of the right of residence,its establishment,changes,exercise of power,duration,etc.The three chapter: Study on the current situation of the application of the right of abode system in the Civil Code,divided into two parts: the first section analyzes what civil disputes involving the right of abode can be solved based on the specific legal provisions of the right of abode in the existing Civil Code,and lists four situations in which the right of abode system in China may be applied,namely,the living and abode of specific people in marriage and family and inheritance cases;the retention of the right of abode in home sale cases;cases in which enforcement is excluded on the grounds of right of occupancy,in which the possible impact of the establishment of right of occupancy on mortgage rights is analyzed;disputes involving the right of occupancy in a variety of housing types,where the differences and advantages of the right of occupancy compared to the right of lease are also focused on.The second section clearly points out the four limitations in the application of the right of occupancy system in China and analyzes the reasons for them,laying a solid theoretical and practical foundation for the following proposals to improve the application of the right of occupancy system in China.The fourth chapter: Study on the application experience of the right of abode system in foreign countries is divided into three parts: the first section introduces the application of the right of abode system in the major civil law countries represented by France and Germany;the second section introduces the rules of the right of abode jurisprudence in the major common law countries represented by England and the United States;the third section analyzes and summarizes the application experience of the right of abode system in the above-mentioned countries that is worthy of our reference,mainly The following three lessons can be learned: First,the law of the development of the right of abode system should be followed.Even though the right of abode in comparative law has a tendency to evolve into property and investment,the right of abode with the characteristics of servitude still has the practical necessity of existence.Second,the establishment of the right of residence by legal provisions or adjudicative acts can provide more effective housing security for the disadvantaged groups.Third,the right of residence can exist independently of easement.Although the traditional system of right of residence has certain characteristics of easement,in order to explore more application potentials of the system,the right of residence is not restricted by its easement nature,and can be established by intention and compensation,and allowed to be traded,etc.The practical experiences of the right of residence system in French and German civil law are also cited.The fifth chapter : is the focus of this article,in view of the above limitations in the application of the right of residence system,combined with the content of the fourth part of the article,targeted proposals to improve the application of the right of residence system of the Civil Code,property rights,divided into four parts: the first section reasonably broaden the establishment of the right of residence,to provide a more stringent legal protection to meet the needs of specific people’s life and residence,and increase the legal provisions,adjudicative acts of the Two types of right establishment methods.The second section correctly interprets and defines the scope of the subject and object of the right of residence,limiting the subject of the right of residence to natural persons,and extending the beneficiary subject to the family members of the right holder and people living together,etc.Legal persons and unincorporated organizations can be the subject of the right of residence;and defines the object of the right of residence as a dwelling and the appurtenant facilities necessary for living and living.Moreover,the impact of the right of residence system on the real estate registration rules in China is also mentioned.The right of residence,which takes registration as an element of validity,needs more perfect real estate registration rules to ensure its accurate application,so it is suggested that the existing real estate registration rules be supplemented and improved accordingly.The third section clarifies the legal effect of the right of residence and provides a reasonable allocation and explanation of the rights and obligations regarding the right of residence owner,as well as the rights and obligations of the owner.Moreover,it also focuses on the legal regulation or measures that can be taken in the face of abuses of the right of residence and the creation of the right of residence in bad faith.Section 4expands the scope of the right of occupancy,pointing out that the exercise of the right of occupancy should not be limited to rent,and the scope of the right of occupancy should be expanded as much as possible;moreover,in order to better meet the current practical needs of the right of occupancy system in China,and to bring into play the practical effects of housing,it is necessary not to prohibit the transfer of the intended right of occupancy.Moreover,the legislature has provided room for breakthrough and practice in the application of the right of residence by means of proviso and white space,especially for the development of investment right of residence.