Study Of China's System Of Habitation Right

Habitation is an ancient system that can be traced back to the ancient Rome times. The establishment of habitation in Roman law is to the weak party's demands. Actually, now we can find provisions concerning habitation in many countries'civil codes, such as Germany, France, Italy,Switzerland, etc. Currently, civil law system of our country is limited by the adoption the rule of the house ownership,lease and borrow to adjust the relation which non-owner make use of the other's house and the attachment ,but have not confirm habitation. On one hand, the reality has put forward the legislative requests for the habitation system, on the other hand, there is nothing we can count for in the code when we want to protect the concerning system in the trial practice, which results in the conflict between"substance justice"and"formal justice".As a new kind of civil right, it arises many different ideas from scholars. When drafting the"property law"in our country , this dissertation is mainly to make a research on the related problems of the legislation of habitation and comment on the provisions of habitation in The Draft of The Chinese Real Right Law for Comment. The dissertation consists of the introduction, text and conclusion. The text is divided into four parts totally:Chapter 1 gives a brief account of the institution of habitation. Firstly, it provided a background for discussing the essentiality of establishing the institution of right of habitation and drawing off a framework of the institution of right of habitation. This part introduced the traditional concept of habitation and the definition of our country's academic circles currently. After summarizing the different concepts of right of habitation, we define habitation as the right to occupy,use and eliminate interference by others with the aim of dwelling of special person.Through analysis, the writer holds that habitation is a kind of real right, a kind of usufructuary right and a kind of personal servitude right of servitudes system. The three characteristics of habitation system are that the subject must be a person, there is a time limit and it is unconvertible.Chapter 2 focuses on the essentiality of establishing the institution of right of habitation. It is discussed through four points: Firstly, establishing habitation is a kind of basic human rights. The establishment of habitation system benefits guaranteeing this basic human right. Secondly, the institution of habitation will do benefit to the disadvantaged groups—old people, nonage, divorce's side who have no house to live. Offering those people with the right of habitation embodies the protection of the minority community. Establishment of habitation is advantageous for realizing the fully use of the house. By comparing habitation with other related rights—right of house lease, right to pawn, and right of loan for use, we can see the dissimilarity of their function, and come to the conclusion that they can't take the place of habitation..Chapter 3, habitation system's establishment and extermination in our country, is the core of this dissertation. Firstly, the writer makes the legislative orientation of habitation in the property law. The writer thinks habitation should be in the property law, included as an independent part in section one - the rule of usufruct of the usufructuary right chapter. And, relevant provisions of the usufructuary right will be applied when there is no special provision. Through reviewing the legislation of Germany, France, Switzerland, etc. the writer discusses in detail the three setting models in our courtry: by-will, by law and by adjudication. Finally, the writer enumerates eight kinds of causes of extermination and designs the result of habitation exterminate.Chapter 4 is the effect of habitation. This part is divided into three sections: the right and duty of habitation person, the right and duty of the house owner, the legal protection of habitation. The author puts forward five items of right and six items of obligation of the party with habitation right, four items of right and five items of obligation of the house owner. Finally, the right of returning the required property, the right of the requirement of clearing obstacle, the prevention of the requirement of clearing obstacle and the right of requirement of remedy for damage occurs when the right of habitation is violated by the owner or the third party.