Deficiencies And Suggestions On The Improvement Of The Residence Right System In China’s Civil Code

As is specifically written in the Chapter 14 of the Civil Code · Real Right for the first time,establishment method,contract content,transfer and term of the right of habitatioare stipulated within only six provisions,serving as a solid legal foundation for the implementation of habitatio system.On the premise of it,I make a comparison among the existing habitatio laws and regulations,the each part of Civil Code(draft-first revision),the drafts of Real Rights Law of the People’s Republic of China,as well as that of Germany,France,Italy,so as to summarize the deficiencies of the existing habitatio system in China,analyze the necessity of improving it in China,and finally put forward the corresponding suggestions for optimizing the system.It is expected that the suggestions can provide a valuable reference for the possible judicial interpretation in the later stage.In view of the research objectives,the paper is organized as follows:First and foremost,the purposes and functions of habitatio system of China are expounded.On the one hand,it explores the legislative process of habitation system in China,highlighting the tortuous process we experienced when making it into the law and the significance of existing habitatio system and in the meanwhile laying the foundation for the betterment of habitatio system.On the other hand,from perspective of the historical origin,characteristics and functions of the habitatio system,the internal reasons why the establishment of habitation can achieve the corresponding goals are discussed.Therefore,in order to better realize the purpose of the habitatio system,the system shall be further improved,and the only way to improve is to analyze and summarize the deficiencies of the system,which leads to the theme of the next chapter.Secondly,for the sake of analyzing and summarizing the deficiencies of existing habitatio system of China,the existing provisions,domestic draft legislation and foreign legislation status quo of habitatio system are compared with the Civil Code(the first draft)and the Real Rights Law of the People’s Republic of Deficiencies and suggestions on the improvement of the residence right system in China’s civil code China(draft)from a domestic point of view,so as to explore the similarities and differences of the relevant provisions of habitatio system and the relevant contents of habitatio system prior to Real Rights Law of the People’s Republic of China,and find out the differences.As there are 12 provisions related to habitatio in the Real Rights Law of the People’s Republic of China(draft),including habitatio obligations,habitatio elimination,habitatio application scope,etc.,these property rights make up for the unclear part in the Civil Code.In my viewpoint,with social and economic development at a rapid pace over the nearly 15 years,earth-shaking changes have emerged in China.In terms of economic development,scientific and technological innovation,culture and education,combined with China’s current social development status and the general improvement of people’s legal awareness,there is an urgent need to clarify the above content.At the same time,in the comparison with foreign legislation,the author focuses on the content of habitatio in Germany,France and Italy,as they have developed different habitatio system on the basis of the same Roman law.Through comparison,the author seeks to find the differences with China’s existing provisions on habitatio,for example,the legal right of habitatio in foreign legislation,the situation of the elimination of the right of residence,general maintenance and large-scale repair,etc.,thus figuring out the deficiencies of China’s habitatio system.Furthermore,having proposed some deficiencies of habitatio system in China,how to better perfect the system is discussed.In order to prove the necessity of improving the right of habitatio system in China,this paper starts from the actual needs of the society,the value of the right of habitatio system itself and the requirements of judicial practice.In terms of social needs,the author expounds from the perspective of diversified use of housing,various pension methods and the protection of vulnerable groups.In the process of analysis,the author consults relevant data and strives to further explain the existing problems through data;when it comes to value of the system,the author compares and analyzes habitatio system of China with other similar systems,such as lease and financial lease,aiming to explain the value of the habitatio system.It turns out that only when China’s habitatio system is further improved can the system value of habitatio be better enhanced.Finally,the actual demand of adjudication can not be satisfied due to the lack of rules and regulations,that is,the existing habitatio system shall be further perfected as required.In this section,by means of big data query,the necessity to improve the system will be discussed from two aspects.For one thing,the large amount of judicial cases shows the necessity of improvement;For another thing,combined with the analysis of judicial cases after the implementation of the Civil Code,it is found that the relevant provisions of the existing right of habitatiocan not completely meet the actual needs of judicial adjudication.In accordance with wide-ranging analysis,it is time to put forwards some valuable suggestions.Finally,through the comparison and analysis above,the author tries to focus on the areas that need to be improved from the definition,subject and object,rights and obligations,and establishment of rights of habitatio.In the first place,the author compares the definition of habitatio put forward by well-known professors in China,analyzing the differences among them,and proposes corresponding suggestions to improve the definition.At present,according to the Civil Code,there is no exact regulation denying that legal person and non-legal person can be the subject of habitation apart from natural person.At the same time,parents who lack the ability to work or have difficulty in making a living,and children who are under age or have no ability to live independently shall enjoy habitatio,and the residents shall have the right to live together with their family members and necessary service personnel.Secondly,as to object: on the one hand,what is stipulated in the Civil Code is to occupy and live in the house of others.However,the author believes that the object of habitatio shall be clarified on the basis of distinguishing legal habitatio and other types of habitatio.Especially for the legal habitatio,the law shall not make a narrow restriction on definition of the object,while it shall be relaxed in combination with the purpose of establishment.In the meanwhile,the whole and part of the house shall be distinguished,and combined with the "Habitatio Registration" issued by the Ministry of Natural Resources,it is explained that the same house can be registered by multiple non-conflicting habitatio,and the habitatio shall be extended to the auxiliary facilities and the common part of the house.Thirdly,in view of rights and obligations: considering the rights of the owner,the owner has the right of revocation under certain circumstances to protect their legitimate rights and interests;at the same time,the ownership also has the obligation to ensure the legal possession and use of his Deficiencies and suggestions on the improvement of the residence right system in China’s civil code housing.From the perspective of habitatio,the occupant shall have the right of decoration,the right of preemption under the same conditions and the right to obtain economic compensation,and also occupant shall have the obligation of daily maintenance and bearing corresponding expenses.The specific circumstances of major renovation shall be clarified,and under special circumstances,the occupant and owner shall share the expenses of major renovation of the residence.Fourthly,from the aspects of establishment,transfer and elimination of habitatio: the establishment method of habitatio shall also include the acquisition of the right in conformity with legal provisions or the court or arbitration commission;In addition to the existing provisions,the circumstances of the elimination of habitatio shall include: self-abandon by owner,elimination of habitatio,revoked habitatio,confused owner and occupant,the loss of the house and so on.According to the thoughts above,the author will draft the proposed judicial interpretation of habitatio on the basis of the existing legal provisions for reference.The author hopes to make a contribution to the further improvement of China’s habitatio system by sorting out the proposed draft of judicial interpretation.The innovation of this paper first lies in topic selection.It is the first time for Civil Code of China to stipulate habitatio system and related contents,which is in response to a long call.Compared with Rome,Germany and law system of other countries,China is one of the relatively late countries to establish its habitatio system.At present,the right of habitatio system in Germany,France and other countries has developed maturely and the system is relatively perfect in all aspects,which is worthy of reference in China.Now,there are only six provisions related to habitatio in the Real Right book.Therefore,as far as the author is concerned,there is broad space to accomplish and perfect habitation system of China.In view of the current situation,on the basis of the provisions of the Civil Code,after referring to a wide range of journals,legal classics and relevant documents,the author focuses on the shortcomings of habitatio system of China through comparison with domestic and foreign legislation,and comes up with corresponding suggestions,so as to improve China’s existing habitatio system in combination with the needs of China’s current judicial practice and social development.As the author is not a professional theoretical researcher,but rather engages in legal practice,the theorization of suggestions may be relatively insufficient.Thanks to the existence of drafts of habitatio prior to the Civil Code and Real Rights Law of the People’s Republic of China,they provide abundant materials for the author to make an in-depth analysis and comparison.At the same time,over the course of 20 years ’ trial practice since 2000,through the comprehensive analysis of big data,it is revealed that there is an urgent need to implement and improve the habitatio system of China.What’s more,as the main contradiction of China at present has become the imbalance between growing demand for a better life and less developed society and economy.Thus,there is broader space for habitatio system to improve.People live and work in peace and contentment and owning a home is one of the foundations of a better life.At present,the house price is generally unaffordable,making it difficult for some families to possess housing.In a word,in order to improve the diversified utilization of housing and reduce the living cost of some families,the author believes that the habitatio system should be continuously improved.General Secretary Xi Jinping once pointed out: “The Civil Code plays an important role in the socialist legal system with Chinese characteristics”.It is a basic law that secures the foundation,stabilizes expectations and benefits the long-term development.Only with the implementation and improvement of the habitatio system can the status and role of the Civil Code be fully achieved.In addition,it is also more in line with the policy direction of realizing multi-agent supply,multi-channel guarantee and combining leasing and purchasing proposed in the report of the 19 th National Congress of the CPC.