From Guarantee To Investment:Research On The Expansion Of Residence Right Function

The Civil Code of the PRC(hereinafter called the Civil Code)set the right of residence in the real right section,forming a new type of usufructuary right and improving the usufructuary right system.From Article 366 of the Civil Code "to meet the needs of life",Article 368 "the right of residence is established free of charge",Article 369 "the right of residence shall not be transferred or inherited" and Article 370 " If the right of the resident person dies,the right of residence shall be extinguished." It is able to discover the right of civil stipulated in the Civil Code of China is not separated from the easement attribute of the traditional right of residence,and its function is correspondingly limited to the scope of the traditional right of residence,but at the same time,the Civil Code leaves room for the autonomy of meaning.The civil subject can satisfy the allocation and exchange of resources through the autonomy of will,which leaves the space for the right of residence to break through the traditional guarantee function and expand the investment function.From the perspective of hermeneutics,this paper studies the function of the right of residence in the Civil Code of China,and provides theoretical guidance for the application of the right of residence in practice.Excluding the introduction and conclusion,there are four parts.The first part analyzes the basic function of guarantee is the right of residence.First by hermeneutics of the civil code of residence legislation,through the "civil code" "to meet the needs of life living","civil code" article 368 "residence set up free of charge,except as otherwise stipulated by the parties" and "civil code" article 369 "residence shall not transfer,shall not inherit" the legislative provisions of the use of meaning interpretation and historical interpretation method,analysis of the "civil code" provisions of residence has easement attribute,safeguard function is its basic function.Secondly,compared with the provisions of the right of residence in the French Civil Code and the provisions of the German Civil Code of China,the guarantee function of the French Civil Code and the provisions of the German Civil Code of China is explained.The second part is about the understanding of the function of the right of residence.In the orientation of the right of residence,there are "limited to the guarantee function" and "can be expanded to the economic function".The security function of the right of residence is refined from the perspective of maintaining family life stability and social fairness and justice,and the security function of the right of residence can be refined into two types: family security function and social security function.The right of residence mainly plays a role in the field of marriage and family.Based on the ethical basis of family mutual assistance for the disadvantaged members,the establishment of the right of residence can effectively solve the problem of real estate division in the field of marriage and family and maintain the stability of family life.The government effectively avoids it by setting up the right of residence for the vulnerable groups and retaining its own housing ownership.The third part examines the function of the right of residence in the operation of judicial practice.Through the statistical analysis of the dispute of residence right in the case database of "Peking University",it can be concluded that the residence right has the dual functions of security and investment developed in practice.The essence of the legal system is the response to real social demand,therefore,this paper then through the questionnaire survey form research the public demand for residential function,it is concluded that people demand for residential security function is larger,in addition to the security function,also reflects the people for residential investment function also has strong realistic demand.The fourth part discusses the feasibility of expanding the function of residence under the framework of the Civil Code.First from the "civil code" of residential legislation,using the method of hermeneutics interpretation,found that the scope is not limited to family members,open to booking commercial housing,serviced apartments,residential part can become the object of residence,and residence can be paid,the civil code for the residential investment function play left a space.Secondly,on the one hand,the right of residence has the investment function from the perspective that the right of residence can be separated from the service property;on the other hand,the investment function of the right of residence is analyzed from the perspective that the right of residence belongs to the property right.