Residency System Research

Dwelling right system is an ancient system which can be traced to theancient Rome times. Actually most countries or areas of the civil law system,such as France, Germany, Italy and Switzerland have succeeded and developedRome's dwelling right in their civil code;even countries of the case law system,for example , England, the United States ,have similar dwelling right system intheir Family Law or the divorce judicial precedents. However, in the course of"the West Law spread to the Orient", both usufruct and dwelling right havedisappeared in the civil codes of Japan and Chinese Taiwan area. 《the Civil LawGeneral Rules 》and 《the Marriage Law 》of our country have not the rules ofdwelling right, and relevant concept of dwelling right just exists in the judicialfulfillment of our country' divorce cases. So we can say, dwelling right is still akind of new civil right in China. In the year 2002, 《the Right of SubstanceLaw(draft asking for opinions) 》edited by the law work committee of theNational Peoples Congress ,rules dwelling right system for the fist time, whichbring a hot discussion among the scholars, but there are many different optionsof whether we should establish dwelling right system at last.Through the investigation of the history development of dwelling right, thearticle studies and analyzes relevant countries or areas' legislature andjudicatory practice. Then the article defines the concept of dwelling right, sumsup its main legal characters, and compares it with some similar rights. In thefoundation of investigation and analysis of the situation of our country, thewriter inquires into the necessity and possibility of establishing dwelling right inour country, and brings forward many idiographic assumptions, hope to offersome beneficial references for our theories and practices of dwelling right.In addition to the foreword, the article is divided into five parts totally.The first part uses the method of history analysis to introduce the origin andthe history development of dwelling right. Then the writer uses the method ofcomparison to study the dwelling right system of a few representational civil lawsystem countries, and clarifies each one' contents and features, and so on. Afterexplaining the disappearance of usufruct and dwelling right in the course of "theWest Law spread to the Orient", the article introduces the similar systems inEngland and America, and compares them with the dwelling right system of civillaw system countries.The second part defines the concept of dwelling right, concludes its mainlegal features, and compares it with house leasehold, house borrow right andhouse hock right, thereby elucidates the independent-existence value of dwellingright system.The third part arguments the realistic necessity of establishing dwelling rightsystem in our country from the society fulfillment needs aspect and systemscheme needs aspect. Subsequently, the article arguments from four aspects thepossibility of establishing dwelling right system in our country. This part is thetache which contacts the front two parts with the fourth part tightly, and it isalso the tache which contacts tightly the dwelling right system with our country'ssubstance right legislation.The fourth part mainly elaborates the establishment problem of the dwellingright system in our country. In the foundation of reasonably use the relevantlegislations and judicial practices abroad for reference, the writer puts forwardher own suggestions for the establishment of our country's dwelling right system,and brings forward some opinions about how to deal with the conflicts ofdwelling right and other rights in the course of actualizing dwelling right.The fifth part is a conclusion. This part sums up the basic points of the holearticle, reiterating the writer's eager hope of establishing the dwelling rightsystem in our country.