Legislative Perfection Of The Disposition Right Of The Right Of Habitation

The disposition right of the right of habitation refers to the right holder’s freedom to dispose the right of habitation and to establish new secondary usufructuary rights,including transfer,mortgage and other right disposal activities.The Civil Code of the People’s Republic of China adopts the principle of absolute prohibition on the disposition of the right of habitation,which is derived from the "principle of intransferability of personal servitude" of the traditional right of habitation in Roman law.The right of habitation in China has retained its original intention of providing protection for the residential rights and interests of specific groups of people.Although it has broken through the restriction of family members’ identity,it is still in the fetter of the concept of non-transferable and non-inheritable traditional personal servitude.Under the historical background of the transformation of the housing concept from "one has the housing ownership" to "one has the house to live in",this kind of rule design makes the applicable space of the right of habitation system very limited.It is of profound significance and value to discuss the possibility and feasibility of disposition right in the system of right of habitation.The discussion on this topic can really promote the establishment of the "multi-subject supply and multi-channel guarantee" housing system,and regulate the housing price to return to the rationality of market value,so as to realize the transformation of the housing policy goal from "one has the housing ownership" to "one has the house to live in".How is it possible to dispose the right of habitation? Firstly,the social basis of the pure personal servitude legislation has been changed;secondly,the disposition of usufructuary right is the development trend;thirthly,from the perspective of value,including order value,freedom value and benefit value,the essence of the disposition right of the right of habitation is benefit value,so as to realize the essence of making the best use of the usufructuary right.Moreover,in the cooperative building,PPP mode cooperative development projects,timeshare resort hotels and other scenarios,the disposition right of right of habitation can be used.Finally,the application of the disposition right of the right of habitation will lead to the formation of a unified habitation right market outside the traditional housing market,and the two markets can go hand in hand,jointly responsible for the diversified supply of housing.In the process of spreading of law of habitation right from the West to the East,the eastern countries reject the right of habitation due to cultural differences,but the European continent,America and other major countries have established a unique system of right of habitation.By observing the legislation of habitation right in continental law system such as Germany,France,Italy,and in Anglo-American law system such as the United Kingdom,the United States,the advanced experience of other country,we get the enlightenment that the design of habitation right system shall break through the limit of traditional personal servitude,adopt the legislative orientation of both personal servitude and property right,open up the restrictions on the disposition right of the right of habitation to a certain extent.Through the legislative perfection of the disposition right of the right of habitation,the transformation of the right of habitation from ethical right to technical right,from the traditional personal servitude to the real usufructuary right is achieved.On the jurisprudence method,through the study of the classification of the right of habitation,to explore the applicable scope of the disposal right of the habitation right,is conducive to provide a possible basis for the legislative perfection of the disposition right of the habitation right.The dichotomy between the right of social habitation and the right of investment habitation is generally accepted in the academic circles of our country.In addition to the mainstream view,the right of habitation can be divided into legal right of habitation,intentional right of habitation and adjudicated right of habitation according to the different ways of establishment.Based on the analysis of the data of the right of habitation,it can be divided into family right of habitation,social right of habitation and investment right of habitation.The applicable fields,personal dependence and transferability of the three above are different.Therefore,different types of right of habitation should be legislated separately.And the disposition right of habitation right should be designed differently,which is beneficial to the construction of a complete spectrum of right of habitation and the flexible expansion of the function of the system of right of habitation.The legislative perfection of the disposition right of right of habitation involves the overall arrangement of legislation and is related to the internal logic of the legislative system.After all,different types of right of habitation not only have different transferability,but also need to be adjusted and carefully considered in connection with other contents such as the way of establishment,rights and obligations,and circumstances of elimination.As for the system design of the legislative perfection of the disposition right of right of habitation,we can consider making general provisions on the right of habitation in the Book of Real Rights,making special provisions in the Book of Marriage and Family and the Book of Succession,and adopting administrative regulations to make supplementary adjustments.Different specific rules are designed to achieve the balance between different interests,so that the disposition right of the right of habitation can conforms to the characteristics of different types of right of habitation,and only in this way,we can truly highlight the essential property of the right of habitation as a usufructuary right to make the best use of everything,and only in this way,the right of habitation,a superior concept,can play an active role in different areas of today’s social and economic life,and only in this way,the right of habitation can assume the important role as the only usufructuary right of building in China.