The Reference Application And The Filling Of Loopholes In The Establishment Of Residence By Will

The "Civil Code" stipulates in the length of six articles in a single chapter the residency system that is generally included in the civil law system of civil law countries and is oriented to protect the interests of individual housing.Although it is still based on principled provisions after several revisions in the process of drafting the provisions,its existing framework can still play a role in unifying the judgment results and judgment thinking of cases and solving practical problems,and its effectiveness is irreplaceable.Starting from the existing provisions,the right of residence in my country is established by intention,and it appears in two forms: contract establishment and testamentary establishment.For the latter,Article 371 of the Civil Code stipulates in the mode of quasi-applicable clauses and becomes a connection object.It is a bridge between rights and inheritance.As the initial model of the establishment of residence rights in Roman law,it is also a retroactive choice to be included in our civil law system.And this clause has also played a role in determining points and stopping disputes in judicial practiceIn view of the difference between the two modes of establishment of the right of residence,contract and will,there should also be certain differences in the construction of the right of residence system.The expression of "applying with reference" to the testamentary mode provides an open space for the interpretation of the mode of establishing the right of residence in the will.From the perspective of legal dogmatics,the article interprets Articles 366 to 371 of the Civil Code,and analyzes it by combining the legislative intent,conceptual similarity of legal relations,similarity of constituent elements,it is found that part of the norms applicable to the establishment of the right of residence by contract,such as the object of the right of residence,the characteristics of the right of residence and the elimination clause including the interpreted abuse of the right of residence can be directly applied to the mode of the right of residence established by the will.However,the subject of the right of residence,the written form clause,the main content clause of the contract,the exceptional compensation clause,the registration establishment clause,and the registration subject need to be flexibly applied by considering various factors.In this way,the purpose of protecting the freedom of expression of the testator’s will and balancing the interests of the owner and the right of residence can be achieved.