On The Nature Of Housing Rights

In China,there is no systematic theoretical system for the protection of residential rights,and most scholars only study residential rights at the constitutional level.Based on the consideration of the difficulty in the protection of the residential rights in the constitution,this paper hopes to further clarify the nature of the residential rights and provide a theoretical basis for the specific right of the residential rights.Starting from the constitutional theory of residential rights,this paper first proves the existence of the constitutional residential rights and introduces the constitutional residential rights in accordance with the provisions on the constitutional residential rights in the legislation within and outside the territory,and clarifies the necessity of the specific right exploitation of the constitutional residential rights.Thirdly,this paper introduces the mainstream theories on the human rights theory,basic rights theory and related civil rights theory of the nature of the residential rights in the academic circle.Through analysis,it is found that these theories are only one-sided to determine the nature of residential rights.Thirdly,from the perspective of the dual division of public and private law,denying the specific right of constitutional residential rights into private right and affirming that the specific right of constitutional residential rights can only be transformed into social law right.Finally,it interprets the housing rights as the social right of law,clarifies the right structure of residential rights and its significance.The development of human rights,the prominence of housing problems and the development of the constitution itself gave birth to the constitutional right to residence.A review of the provisions of the constitution in and out of the region reveals that the protection of residential rights in various countries has three modes: passive defense mode,active protection mode and active protection mode with both passive defense mode and passive defense mode.Through the analysis of article 13,article 39 and article 45 of China’s constitution by the method of constitutional interpretation,it is clear that China adopts the mode of active protection and passive defense.But because our country constitution does not have the concrete stipulation to the residential rights,therefore causes to the residential rights safeguard insufficiency.In order to better protect the residential rights,we need to turn the constitutional residential rights into concrete right.What rights,but specific rights in academic circles appeared different point of view,some scholars think should stay in the aspect of public law from the perspective of human rights or fundamental rights of the residential rights for security,some scholars also can think of right of residence in terms of relevant civil rights for security,but have ignored the guarantee of residential rights of vulnerable groups.From the perspective of public and private law,the author analyzes the relationship between public right,public power and private right,makes it clear that public power is required to participate in the process of the specific rights of constitutional residential rights,and negates the specific rights of constitutional residential rights into private rights.Through the analysis of the property of quasipublic product of housing right,the author makes it clear that the specific right of constitutional residential rights should be converted into social right.This chapter is based on the third chapter which clarifies the nature of the residential rights as social rights in social law.First,we can build the correct structure of the residential rights and regulate the conceptual expression of the residential rights.It can be stated that the right to residence which is a social right in social law and the subject of its rights is every member of society,and its main body of obligation is the government.Its content is to provide equal residence opportunities for members of society to enable them to enjoy the right to residence.Second,it clarifies the residential rights as the essence of social rights.As a social right in social law,the focus of residential rights is on the protection of residence benefit of socially disadvantaged groups,meanwhile,the residential rights as the essence of social rights emphasizes the responsibility of the state and government in realizing the residential rights.Finally,as a social right in social law,the right to residence is the specific implementation of the constitutional residential rights,and it is also aim to further realize the interests of public residence.