Research On The Legislation And Practice Of Habitatio

Habitatio is a usufructuary right on other people’s residence for dwelling.Its core functions are possession and utilization.The localized expression and practice of Habitatio in China are significant and realistic problems.Nobody could survive without dwelling.More important,Habitatio is always related to disadvantaged groups’ fundamental rights protection in present China.To go deeper,Habitatio is not just guaranteeing the survival of vulnerable groups,but also the stability of the society.The start point of this dissertation is the local needs of China,and the specific approach is to study the drafts of property law,local regulations and judicial documents.As a saying goes,law is local knowledge.It has to be clear that the research on habitatio must entertain the reality of China.Therefore,other than the popular comparison method,this dissertation is to incline towards the positive analysis method.Legal documents contain the understanding of the legislators on reality and reading these documents could find out the situation of reality reversely.Comparing the drafts of property law would helpful to the present legislation.Summing up the local regulations may produce some rules that would work in the whole nation.Last but not least,judicial documents could bring up new perspectives on the research of habitatio because the real world is highly verified.Habitatio of China have no choice but to give special consideration for the elderly people and divorced women.Habitatio carries the mission to protect the vulnerable people since its emergence.For the elderly people,habitatio means the right to dwell in the house that they made some financial contribution but with no property rights.For the divorced women,habitatio means a transitional dwelling right with some strings attached.The period would be 2 years in most cases.To protect the vulnerable people,it is quite justified to allow the public power to intervene,that is,to allow judgments to set up habitatio rather consensus.Even though there exist no direct legislation on habitatio,there exists plenty of cases related to Habitatio.Pursuant the numerus clausus principle,so-called or self-claimed habitatio may not be recognize as property right while the results of judgments are nearly unacceptable.Hence,the judges appeal to the public order and moral principle to dismiss the claims from the owner.But this solution is with some flaws in logic of argument.Finally,this dissertation recommends enacting judicial interpretation documents to find a balance.There are still some marginal problems.For instance,the regulation on period is overly rigid.The present legislation fails to regulate the responsibility on legal subject who own perpetual habitatio.And the present legislation just be of omission of the extinguishment clause of Habitatio.Last but not least,as the civil code has been established,it would be pragmatic to draw up judicial interpretation documents to enhance the Habitatio system.