Study On The Balance Of The Conflict Between Residence Right And Other Rights

The nature of residence right is usufructuary right,means the right to establish residence for others on his building,there are two ways of establishment:contract and will.The right of residence already existed in ancient Rome.Later,France,Italy,Germany and other countries inherited this system and adjusted it according to different needs of their own countries.In 2002,when the Property Law of China was drafted,the provision of the right of residence was added.But there was a great controversy on whether the right of residence should be established in the academic circle.However,the right of residence was not retained in the Property Law due to various factors.Since 2014,China has entered a new era of compiling the Civil Code.In order to respond positively to the concept of guaranteeing citizens’ "having a place to live" proposed by General Secretary Xi Jinping and the increasing social demand for setting up the right of residence,the Civil Code finally added the right of residence.But in practice,the same house there may be a number of rights,such as the ownership of the house people set up residency in his house,and then set hypothec for others or yourself to housing as collateral,is also likely to betray a house or rent to others,this will cause right accumulation and even the phenomenon of conflict,and when the right to implement this conflict will show more obvious.This paper takes the effect conflict between the right of residence and other civil rights as the breakthrough point,clarifies the settlement rules when the right conflicts,in order to supplement and perfect the system of the right of residence.Firstly,this paper studies the basic theory of residence right from different angles,like concept,historical evolution,differentiation and value,so as to clarify the logical starting point for the discussion of the settlement rules of the conflict between the right of residence and other rights in the following paper.The original intention of setting up the residence right system is to meet the housing needs of the disadvantaged groups in the society and realize the function of social support.Later,with the reference of different countries,the content of the right of residence changed,so the right of residence also jumped out of the traditional frame of the nature of human service,and developed to investment,consumption and other functions.The right of residence has its uniqueness,which is different from other rights,especially the right of lease.After classifying it,it reflects two different value orientations,and the degree of legal protection should also be different.The right of residence embodies the value of justice,freedom and benefit,and the study of it can help us to analyze which right should be protected first when confronted with the conflict of rights.Then the author analyzes the possible conflicts between the right of residence and mortgage,creditor’s right and ownership,and puts forward the resolution rules.For example,the sequence of time when the general rules for the realization of the right of residence and mortgage are observed,and the rule establishment when the rights conflict occurs under the circumstances of different situation.In the condition of the debtor’s malicious establishment of the right of residence to evade the debt,the creditor’s relief and the judgment of malicious establishment,according to different situations to distinguish the right of residence in the face of the creditor’s enforcement of the way to protect the right;When the occupant rents the house illegally,the relief of the proprietor’s right and whether the occupant has the preemptive right.The theoretical significance of this paper lies in that clarifying the rules when the right of residence conflicts with other rights can enrich the connotation and application of the right of residence on the basis of the existing provisions of the right of residence and fill the legal vacancy.The practical significance lies in providing the basis for the judge to deal with similar cases in judicial affairs.