On The Perfection Of The Establishment Of The Right Of Residence In The Civil Code

The addition of residence right system in the civil code is mainly to protect the residential rights and interests of vulnerable groups and enable them to have houses to live.It not only meets the civil oriented legislative concept of the civil code,but also responds to the requirements of the times.However,when the legislators set up the legislation,they continued the human servitude in order to safeguard the interests of vulnerable groups at the beginning of the creation of residence,and defined the function of residence right as social.Ignore the existing investment residence right in practice.The civil code only stipulates the residence right agreed by the parties in the form of contract and will.However,due to its inherent limitations-the parties must reach an agreement,which makes the people who really need the right of residence can not be better protected.The legal right of residence has the function of supplementing the intended right of residence.Therefore,legislation needs to increase the establishment of legal residence.The establishment of residence right in the form of judgment is a typical form of legal residence right,which does not break through the legal principle of real right.The law needs to respond to the needs of the development of the times and the changes in social practice,especially the residence right system.It should break through the traditional idea of residence right for human servitude,distinguish the security value and economic function of residence right,and allow the economic function of residence right-Investment residence right to play.These two are applicable to different fields,and they are not opposed to each other.On the contrary,they can be established at the same time in some cases.For example,the joint venture housing construction event between relatives belongs to the right of residence with both sociality and investment.In addition,the establishment of the right of residence can not be uniformly applied to the principle of registration establishment,and different elements should be adopted for the right of residence established in different ways.Article 368 should be amended to read that the right of residence is established at the time of registration,unless otherwise provided by law.This paper is mainly divided into four parts to discuss the establishment of the right of residence.Primarily,the typical example of the instauration of right of habitation lead to two major problems in the establishment of residence right: the legislation of the scope of subject and object is vague;The establishment method is not perfect only the voluntary right of residence is stipulated.Secondly,through the theoretical and practical analysis of these two major problems,it is concluded that the reason for the legislator’s such provisions is that limited by the human servitude attribute of the traditional residence right,the nature of the residence right is positioned as the social residence right,but mixed with the provisions of the investment residence right(such as allowing paid establishment).Such legislative provisions cause application problems to the subject of the right of residence.For example,whether the subject of the right of residence includes legal persons and unincorporated organizations,whether the object of the right of residence includes houses with business nature,and whether the establishment type of the right of residence includes investment right of residence.Finally,through theoretical analysis and examining the practical application needs,this paper puts forward that in the construction system of residence right,it should be divided into two main lines: sociality and investment,and the two should apply different rules in terms of whether to allow transfer,inheritance,paid acquisition,and solutions to conflicts of rights and interests.The legal right of residence proposed in this paper belongs to social right of residence.In order to realize the smooth connection between the residence right system and relevant systems,social residence right and investment residence right cannot be mixed in the real right series.It is suggested to design them separately.The real right series designs the general provisions of residence right,and places the legal residence right common in the field of marriage and family in the family marriage series,which can make special provisions.The investment residence right is set in the contract,so that it can better realize the multiple utilization of the house,so as to give full play to the maximum economic value of the residence right.However,neither the lawful right of residence nor the dwell right of residence can violate the principled provisions of the real right series on the right of residence system.