| The residence right system can be traced back to the period of Roman law.It provides institutional guarantee for the residence of specific families and liberated slaves,and has a strong personal attachment attribute.The system of residence right in civil law countries has evolved for a long time,and the content of rules has been continuously developed and improved.There are systems similar to the content of residence right in common law systems.When China enacted the property law in 2007,legislators believed that the function of residence right in China could be replaced by other systems without writing it into the law,but there are still judgments on residence right from time to time in judicial practice.After years of trial practice and scholars’ research,the civil code finally stipulates the right of residence,so as to alleviate the housing difficulties of vulnerable parties in marriage and family,the housing difficulties of specific social groups,the absence of children’s maintenance obligations and other social security problems.There are only six articles on the right of residence in the civil code,which are the right nature,establishment method,registration,circulation restriction and term of the right of residence.The existing regulations are not enough to maximize the social security function of the right of residence.Firstly,the definition of the subject and object of the right of residence still needs to be clarified;Secondly,the relevant provisions on the right of residence do not systematically clarify the contents of the rights and obligations of the right of residence,which is easy to cause the problem of right vacuum and lack of responsibility,which is not conducive to the settlement of disputes over the right of residence;Thirdly,the right of residence has not been well coordinated and connected with marriage and family series and inheritance series;Finally,it does not consider the protection and relief of the right of residence after the loss of the house in reality.Based on the legislative experience of foreign countries and the logic and basic theory of abiding by the law,the scope of the subject and object of the right of residence in the civil code still needs to be clearly explained.Secondly,other supporting rules should be added to better realize the social security function of the right of residence.First,the rights and obligations of the parties to the right of residence should be clarified.The right of residence holder has the right to use the house reasonably,the right of preemption of the house,the right of reasonable repair and the right of claim on the property of the right of residence.The right of abode shall bear the obligations of reasonable use,proper management,payment of daily expenses,general repair and hazard notification;Second,formulate the rules of legal residence right,stipulating that after divorce,the person without a house has the right to live in the other party’s house,the surviving spouse has the right to live in the house as an inheritance,and the elderly without a house and with poor economic ability have the right to live in the house owned by adult children,so as to realize the connection with marriage and family series and inheritance series;Third,the addition of the rules of subrogation in rem of the right of residence is conducive to the protection of the residential interests of the right of residence after the loss of the house,but its achievement conditions should be strictly enforced. |
