Legislative Research On Habitatic System

Habitatio is an ancient system which history can be traced back to the ancient Rome times. Actuallay now we can find concerning provisions about habitatio in many contries' civil codes, such as Germany, France, Italy, Portugal, Switzerland, etc, and we can find such case in some Anglo-Saxon countries as in British marriage family law, in the divorce judicial precedent of Australia and the United States. But when we scrutinize our related legislation, there is totoally blank in that area.On one hand, the reality has put forward the legislative requests for the habitatio system,but on the other hand, there is nothing we can count for in the code when we want protect the concerning system in the trial practice, which results in the disparency between substance justice and formal justice.The objects that habitatio protect are the women, the old and the minor, who are belonged to the social minority community.Judging from the angle of the protection of social amblyopia ,property law should discard the traditional" utilitarianism"that emphasize the economic benefit persistently, neglecting the social benefits.At the time of drafting the "property law" in our country ,this passage is mainly to make a research on the related problems of the legislation of habitatio.This text is divided into five parts totally:The first part is "The legislation doctrine evaluation of habitatio system".This part is constituted by two aspects.Firstly, the writer do the birefly introduction of the legislation arguments of habitatio system ,namely the affirmative legislation doctrine and the negative legislation doctrine.The affirmative legislation doctrine hold that habitatio should satisfy the need of no-owner who also have the right to utilize the real estate for dwelling under the protection of law, and put forward the concrete legislative design. This doctrine occupies the dominating position, and the majority of scholars all agrees with this standpoint. The negative legislation doctrine make the disscussion from the aspects of history, system, lawmaking cost and make 'cool' criticism on the hot reform of habitatio basing on some rational suspect.Secondly, the writer make the denounce argument aiming at all kinds of negative reasons one by one, and hold that the main reason of oppositing the habitatio legislation is the addicting to conceptual law. The concept law surely important but it has not necessary to respect. Long history should not become the oppositing reason of habitatio system legislation. Actuality life has more needs for habitatio .Seeing from the legislative cost, it should guarantee the rights of dwelling of these minority communities, utilitarianism of lawmaking should be abandoned. Finally, the writer puts forward his own standpoint, which is agree with habitatio system, namely the legislation of habitatio system.The second part is" The legislative value of the habitatio system ".This part is constituted by three aspects:Firstly, the writer hold that the right of living is a kind of basic human right. The establishment of habitatio system benefits to guarantee this basic human right.Secondly,the writer think that the old man, women, minor are all social minority communities, who should be the subjects of habitatio system protect. Offering those people the right of habitatio embodies the protection of the minority community.Thirdly, In order to develop well to the house effect, as a kind of important real estate, the establish of habitatio embodies the exploitation toward real estate value.The third part is "The legislative necessity and possibility of habitatio system".This part is constituted by two aspects:Firstly, the writer make the disscussion about the legislative need of habitatio system which put forward by the actually life. Problems emerged from colorful life is the motive force of legislation. The importance of habitatio system in the real life highlights for a few problems as follows: the eldly unmarried to cohabitate, divorce verdiction and the habitatio of mino...