Commentary On Gao And Zhang Elimination Of Obstacle Disputes

The December 2019 residency system was included in the draft civil code,another attempt by civil law scholars to incorporate it into the property law after 2007.It is because of the absence of the current legislation that the adjudication results of the right of habitation cases in judicial practice are different due to the different adjudication standards used by different judges.At this point,the composition of the right of habitation and the legal theory of the conflict between the right of habitation and ownership,appears to be very necessary.The right of habitation is not the right of the possessor of the house,the right to use and the right to profit.The establishment of the judicial right of residence centers on its subject qualification,right content and right elimination.The spouse,parents,children of the owner of a house may enjoy the right of residence in addition to their close relatives,divorced spouses or non-family members who live together and other natural persons with housing difficulties may also enjoy the right of residence.When the right of habitation dies,the contract of right of habitation is terminated or rescinded,the right of habitation is mixed with the owner,and the right of habitation is voluntarily waived,the right of habitation is extinguished.At the same time,the right of habitation is a usufructuary right of the realty with other property,restriction and time limit,which means that the right of habitation is exclusive,lifelong and non-refundable.Because the right of habitation and the object of ownership coincide,before the right of habitation has entered the civilcode,the right of habitation can enjoy the right based on the theory of the limitation of ownership and the function of the right of habitation.The socialization of ownership requires ownership to be dominated by social norms and laws.The obligation of the owner is to give priority to social public interests and good customs,and to guarantee the basic housing purpose of civil subjects with housing difficulties.This is also one of the contents advocated by the socialist rule of law in China.