A Study On The Establishment Of Residency Right System In China

Since ancient times,housing is the most basic material for a person’s survival and development.As a kind of right with a long history,the right of dwelling was born in the Roman law era.The traditional right of habitation is a guarantee right,and its essential feature is to separate the ownership of housing from the right of use to meet the living needs of the specific subject.Before the "Civil Code",the right of dwelling has never been involved in the legislation of civil law in China,but there are a lot of disputes about the right of dwelling in the past practice of judicature in China.The new system of dwelling in the system of real right is one of the highlights of the real right of real right in the Civil Code of our country,which meets the needs of the current social and economic development.Among them,the way of establishment of the right of residence is the basis and premise of the right of residence,and the parties concerned may create the right of residence by entering into a contract or making a will,fully respecting the autonomy of will of the parties concerned.However,there are some limitations in the establishment of the way of residence,so there are many challenges in the application of law.Therefore,the author discusses the problems in the way of the establishment of the right of residence,in China and puts forward some corresponding suggestions.The first part of this article focuses on an overview of the right of dwelling system through a documentary and historical research approach,starting with a discussion of the underlying theories of the right of dwelling,including the emergence of the right of dwelling system and the development,followed by a discussion of the development of the right of dwelling system in China,including the theoretical controversies,theoretical needs and practical needs for the establishment of the right of dwelling system in China,and the norms of the right of residence in our Civil Code.The second part of the establishment of the way of residence in the legal application of the difficulties faced by the law,and puts forward the problem that this article wants to study.At present,the establishment of the right of residence in China is based on the intention,including contract and will.The provisions on the right of residency contract and the way of establishment by will are too broad in the law,there are gaps in the law and challenges in the application of law.In the case that the agreement between the right holder of dwelling and the owner of the house is unclear,and there are no clear and corresponding rules when a dispute arises,disputes will arise;when the right of residence is established by will,the legal effect of the registration is unclear,which may affect the specific exercise of the right of residence;at present,the way of establishing the right of residence is limited to a certain extent,the way of establishing the right of residence is objectively unable to reach a consensus on establishing the right of abode,which cannot fully guarantee the original legislative intention of realizing the right of residence and safeguarding the rights and interests of vulnerable groups in society.The third part of the article is the exploration and analysis on perfecting the ways of establishing the right of above-mentioned problems.The Civil Code lacks in the regulation of the ways of establishing the right of habitation,and there are loopholes and conflicts in the application of laws.Therefore,it is necessary to,on the basis of understanding the connotation of the right of residence,apply by analogy to similar systems,fill in the blanks in the provisions on establishing the right of residence by contract,clarify the legal effect of establishing the right of abode by will,so as to make the right of residence play better.In addition,the author holds that it is necessary to add statutory ways of establishment under special circumstances on the basis of determining the establishment of the right of residence,so as to further improve the system of the right of residence.