Study On The Establishment Of Residence Right In China

As an important real right system,the right of residence has a long history and can be traced back to the ancient Roman era.China’s discussion on the right of residence system first appeared in the property law(Draft).Although there are many cases about the right of residence in practice,it was officially incorporated into the legal norms in the text of the civil code of the People’s Republic of China(hereinafter referred to as the civil code),and this system also officially entered the public’s vision.For a brand-new system,the legislation only uses six provisions to adjust and stipulate,which is slightly rough and can not meet many challenges in practice,which reduces the applicability of the law.Since many provisions are not clear,this thesis will study the subject scope,object scope and establishment method involved in the establishment of the right of residence,analyze the focus of controversy in the academic circles,demonstrate its appropriateness,and interpret and apply it under the existing legal provisions.For the subject scope of the right of residence,this thesis believes that it only refers to the natural person with specific housing needs,and strictly limits this subject,that is,it excludes the natural person,legal person and non legal person organization as the same person.This conclusion is not only based on the consideration of the servitude of the right of residence,but also in line with the connotation of the flexible standard of "meeting the needs of living and residence" in the article of legality.The conclusion that only natural persons are the subject of the right of residence needs to be fully understood in combination with other provisions;With regard to people living together,we can learn from the provisions of extraterritorial legislation that there is a clear distinction between people with the right of residence and people living together;Under the current economic society,legal person or unincorporated organization is in a dominant position compared with natural person,and there are few cases involving legal person or unincorporated organization in practice.To define the object scope of the right of residence,we need to define the relevant elements in article 366 of the civil code.This thesis holds that urban houses and houses with burden of rights can become the object of residence right.The former includes urban commercial houses,pre-sale commercial houses and rural villagers’ houses,and the latter includes houses with lease right,mortgage right and residence right.On the contrary,policy houses that have not obtained full property rights and houses sealed up by the people’s court shall not become the object of residence right,because these house property rights are not ownership in the full sense.In addition,the specific scope of the object of the right of residence also needs to clarify whether the object is a part of the house or the whole house when the right of residence is established in a part or a specific part of the house? Through the understanding of "the specific principle of the object of real right" and the analogy between easement and mortgage,this thesis believes that in this case,the object of residence right should be the whole house.The discussion on the establishment of the right of abode will mainly discuss three categories: the establishment of contract,will and court judgment.Among them,the establishment of residence right by contract needs to clarify the necessary provisions and other provisions of the residence right contract,and the identification of this issue needs to define the relevant provisions of paragraph 2,article 367 of the civil code;At the same time,since the residence right system is a new system and there is little experience in dealing with the dispute in practice,it is necessary to include it in the residence right contract.However,at this time,it is necessary to discuss the specific situation of unilateral or bilateral residence right registration and determine the content of the register.The nature of will and the effectiveness of residence registration should be paid attention to in the establishment of residence right by will.Because will is a change of real right not based on legal act,it can take effect without registration;However,the provisions on the effect of registration on the right of residence in the civil code are not clear.In practice,there are judicial precedents in which the court recognizes the right of residence in the form of judgment when the will takes effect.Therefore,the way of determination can certainly become the way of establishing the right of residence.At the same time,considering the effectiveness of the application of law,the court should also be allowed to establish the right of residence by judgment,but this way needs to be strictly limited.