The Construction Of The Right Of Habitation System Under The Background Of Civil Code's Codification

Since the codification of civil law in modern times,the right of habitation system originated from Roman law has been widely adopted in European countries,and there are similar systems in UK and US.In the process of legislation of the property law in China,the right of habitation system had been prescribed in the property law(draft)for several times,but It was completely abandoned in the end.With the development of economic and society,and further study on the right of habitation,quite a number of arguments against the introduction of the right of habitation more than a decade ago have been no longer hold.The first revision of the property volume(draft)in Civil Code added the right of habitation system in the usufruetuary right with four articles in an independent chapter,the second revision further refined it.But there is still a great controversy about its preservation or abolition and how to design it specifically.On the basis of justifying the right of habitation system in the law,the concrete content,protection and interest coordination of the right of habitation were designed in this article.Problems were raised in the first section.Whether the right of habitation system should be codified is still controversial.According to the fact that the right of habitation system has irreplaceable functions in protecting the interests of special groups and realizing the diversification of housing utilization,such as the systems of house leasing and mortgage loan.The usufructuary right of housing in China is far from sufficient.So it is necessary to incorporate the right of habitation into the law.According to the theory and practice of the right of residence system,it can be integrated into China's property law system and expected to have excellent legislative benefits.In a word,it can be concluded that the right of habitation is feasible.The concrete content of the right of habitation system was constructed in the second section.Based on the investigation of the right of habitation world-wide and the specific domestic conditions,the following opinions were put forward.The way of obtaining the right of habitation should be diversified,the right of habitation can be obtained by law and court judgment besides contracts and wills.The rights and obligations of the right holder shall be clearly defined,the right holder has the right to possess,use or even benefit from the residence of others,but the right of habitation with personal specificity cannot be transferred,inherited or leased.The residence should be kept properly by the right holder and necessary expenses be afforded as well.During the term of the right of habitation,if the owner transfers the real estate,the right holder shall enjoy the preemptive right under the same conditions.The right of habitation has the effect of recourse,the change of the owner does not affect its validity.The right holder may claim compensation accordingly in case of loss of residence.Registration antagonism should be adopted in the change mode of the right of habitation.The protection of the right of habitation and the coordination between the right of habitation and other rights were attempted in the third section.Justiciability of the right of habitation should be clarified firstly.The right of habitation can be protected by confirming the right of habitation,the right of returning residence,the right of eliminating nuisance or eliminating danger,and the right of damage compensation.The systems were designed to coordinate the right of habitation with the right of ownership,mortgage,etc,so that the right of habitation can coexist harmoniously with other rights.