Research On The Codification Of Right Of Habitation Under The Background Of Civil Code Codification

The right of habitation is originated from Roman law,as the right to possess and use others' house.The right of habitation's character including personal,exclusive,non-transferable and inheritable.The right of habitation is different from the right of usufructuary and the right of use,but they are also related.After Rome,many civil law countries have stipulated and developed the right of habitation system in their civil codes,and some common law countries also have recognized the right of habitation system through legal precedents.Thus,China also can gradually adopt the right of habitation system according to its own national condition.The right of habitation has appeared in China's property law(draft for soliciting opinions)and the first four drafts for deliberation.The discussion on the right of habitation has never been stopped between academic researchers.Besides,in the field of judicial practice,there are many cases and distributed almost all over the country.In China,the right of habitation is closely related to people's living and housing.The18 th and 19 th CPC National Congress have repeatedly proposed to improve people's livelihood and ensured all the people should have their own adequate housing.According to the design style and layout of Subdivisions of the Civil Code of the People's Republic of China(Draft),it is highly practical to incorporate the right of habitation system into China's civil code.The practical demand analysis and theoretical discussion about the right of habitation's codification will become a necessary procedure in civil code's construction and also reflect the new spirit of legislation in 21 st century China.In the new environment,the house including both traditional housing function and new economic function,the social demand status for Houses-for-pension,the protection of vulnerable group's rights and interest,the maintenance of judicial credibility,all above have some connection with the right of habitation,thus the right of habitation's codification is necessary and inevitable.Meanwhile,from the perspective of legislative spirit,the right of habitation's codification accord to Civil Code's Autonomy of Will and Property Law's Turn Material Resources to Good Account.From the perspective of China Property Law,the right of habitation suits the system and hasits unique value in theory and practice.Thus it cannot be replaced by social security system or the creditor's rights in house lease,or the regulations from Marriage law and judicial interpretations.Currently,according to the Subdivisions of the Civil Code of the People's Republic of China(Draft),the right of habitation should make sure the subject is natural person,the object is house(the entirety or portion),complete the resident's rights and obligations,such as jus fruendi,right of claim in rem,right of first refusal,the duty of a good administrator,the duty of daily maintenance,the duty of bear the cost,the duty of house's return and so on.What's more,there should be two patterns when it comes to establish a right of habitation,include statutory establishment and verdict establishment.And there also need to complete the exterminating situation of the right of habitation to sustain its system construction,that's why we still need the cooperation from the field of legislative allocation.