The Reconsideration Of Relevant Issues On Habitatio In Chinese Mainland

It is generally accepted by the theory circle that Habitatio, one sort of the ius in re aliena in Roman law, is an ancient system derives from the Roman law. It is servituded by the servitude in gross, which means that an entitled person has the right of habitation in others'houses. Most countries adopting Civil Codes in the Western Civil Law systems has inherited the Habitatio, and a portion of scholars think that there are also some relevant systems in Common Law reflecting the substances of Habitatio(such as the Marriage the Right to Housing in UK Law and the Estate for Life in US Law). In China, Habitatio has been established in the Real Law (Draft) in the 15th Chapter, the chapter with special 12 clauses and then has been canceled in the 5th deliberation for the Draft. The intense disputes of the availability of Habitatio have been highly placed during the process of the enaction of the Real Law.Based on the full observation and study of the Habitatio Legislation both at home and abroad, the essay reveals the actual overall view of research of the local Habitatio from the two methods as the current circumstances of the theory research and the analysis of practice judgment. To infer the separate characteristics of the two methods, the essay makes comparison and comes to the conclusion that theory research and practice judgment break each other in long-term period through reconsideration of the local research method on the Habitatio and meanwhile puts forward some suggestions on the relevant issues involving the Habitatio.Setting comparative law as perspective, the first chapter analyses the general situation of the Roman Law and the following Habitatio legislations at home and aborad(no limit in the Civil Law systems). By introducing the examples of the legislations at home and abroad with representativeness, this chapter tries to infer the characteristics of each legislation and shows what Habitatio is as well as how the Habitatio reforms historically.The second chapter mainly introduces the current circumstances of the theory research which is one of the two research methods on habitatio. In this part, the introduction is divided in 2 types as for-establishing-habitatios and against- establishing-habitatios, according to the contents of works from scores of local scholars. It concentrates on inferring the major points of the 2 types mentioned above, in order to stress the contradiction disputes of the 2 opposite types.The third chapter focuses on the current circumstances of the practice judgment which is the other of the two research methods on habitatio. In this section, 121 pieces of civil judgment report involving local Habitatio are regarded as research target, thus weighting the 5 types in the judgment report as the relationship of plaintiff and defendant, the type of housing at issue, the gist of Habitatio establishment, the result of claim and judgment as well as the reason of judgment. This chapter makes the statistic of the proportion of relevant problems in each type and tries to infer the Habitatio practice judgment thinking lines.Based on the conclusion of the separate characteristics of the theory research and practice judgment on Habitatio, the forth chapter compares the characteristic of the 2 methods, and then reviews the shortage of the current research on the Habitatio(such as the expounding on the fact that theory research and practice judgment break each other in long-term period) and put forward suggestions on the relevant problem involving the Habitatio. In the suggestion section, the demonstration is emphasized on 2 aspects as establishing the Habitatio currently, and the other is 3 parts as theory research, practice judgment and legislation should strength the essential interaction and enhance the establishment of the legal country.