Exploration Of The Habitatio System In China

Habitatio system is an important property rights system which belongs to the traditional civil in civil law country. Habitatio is a right that sets at other's house and appendage for particular person's long-term or permanent residence. Habitatio system stems from ancient Rome. In Roman law, habitatio belongs to people easements, which is a right that a person is given the living benefit to live in other's house. Most modern civil law countries are affected by the Roman law. In their usufructuary right system of Civil Code, habitatio system is ruled. From drafting Real Law until Real Law being enacted, there are different opinions about the trade-off of habitatio system in China .Real Law finally gives up habitatio system. Of all time, housing problem is the top priority of human life. It is that living is in order to live and work. In China's judicial practice, cases about habitatio are abundant, but China has no habitatio legislation. Although the Real Law eventually gives up habitatio system, but it does not mean that habitatio system in our country does not exist in the necessity and feasibility, and the judicial practice in China has used habitatio to settle the disputes. In the face of our existing economic system and judicial practice, the establishment of habitatio system will be able to provide a uniform legal base and standard for judges to resolve disputes .And it can further optimize the allocation of resources and better solve the housing problem of vulnerable groups. It can also bring off social support function. With the development of commodity economy, habitatio system can also realize the diversification of ownership of the owner to provide new ways and means. At the same time, learning from legislation experiences of overseas and joining judicial practice to our country's specific national conditions, habitatio system can help consummate usufructuary right system. It is also an important element in China's legal system. Habitatio system in practice has significant value, and it ensures the needs of the most basic function of living. China's habitatio system should be given legal status. In view of this, this article analyzes the need for China to establish habitatio system and explores content of habitatio system based on the investigation of judicial practice in China.This article is divided into three parts.The first part describs the judicial practice of housing problem. First, this section lists three cases about disputes about the right to live, to illustrate that the cases about the rights of living is increasingly universal in Chinese judicial practice now and the judges at all levels handle the cases with the widespread use of concept of " habitatio ". China's existing law has no clearly defined habitatio, and the judicial interpretation and adjudications don's make a clear and systematic rule of the concept and content of habitatio. Considering our current social reality, there are many problems associated with the habitatio. However, there are many deficiencies and shortcomings in our existing system to address the issues of housing in China. In current legislation, right like claims, such as elease or loan, can not help protect the interests of the living. Social security system has too broad coverage, which is not to address specific areas of the housing problem. The right mentioned in the marriage law is not a long-term right like habitatio. It can not form a long-term stable relationship between right and order. There is non-uniform application of the law in handling the case in accordance with judicial interpretation, so the application of law can not reach unified technology and methods and the judge has been given too much discretion objectively. In short, the current system can not completely solve the housing rights of society. Therefore, this section concludes that to establish a scientific and rational thinking habitatio system can fundamentally solve the above problems.The second part of this article explains the need for China to establish habitatio system, this part is composed of two parts. First, there are four areas to illustrate the need to establish habitatio system in theory. This paper introduces the habitatio is both property right and usufructuary right. Then, through the perspective of real right to illustrate that China need to pass legislation to set up habitatio system. The next article describes the legal foundations of habitatio determines that habitatio system should be established in China and introduces habitatio system will improve our property legislation. The second issue is that establishing habitatio system in China has necessity in practice. System is created from the needs of real life. Under the habitatio system, the house owners can achieve the diversity advantage of home ownership keeping or setting up habitatio for themselves or for others.The third part of this article is composed of two parts which describes the exploration of China's habitatio system. The first part is composed of two questions. The first problem is that to build habitatio system should use what kind of style. With the social development, habitatio system has gradually broken through restrictions of the personal servitude. The second problem is where we should put the habitatio system in the future Civil Code. Habitatio is a real right, and the numerusclausus asks that habitatio should be ruled under the property law. Next is a description of exploration of habitatio system. First of all, to obtain habitatio need include two forms: the legal establishment and the intending establishment, which should be for free. Then, the paper introduces several reasons leading to eliminate habitatio. Finally, the article analyses what rights and obligations the man who enjoy habitatio shall have from the perspective of the effectiveness of habitatio .What is the maximal purpose for the country which has established legal system? It is to give every citizen fair concern and equal attention for the interests by window of law. In summary, we believe that the establishment of habitatio system is absolutely necessary. We should consider it from establishing and perfecting angle, making it which is ancient but plausible shine in our country. However, the habitatio system in China can not just blindly, simply draw or transplant something foreign. We should consider specific situation in China and legislate into line with advanced countries according to our basic system construction. We must also take China's special national conditions and development of market economy into consideration.