The Legal Structure Of The Right Of Residence In The View Of Civil Code Compilation

The system of the right of residence originated from Roman law,which has a profound influence on many countries legislation in the world.This system has not been adopted in the property law of China.The current Civil code(Draft)classifies the right of residence into the real right part,and its legislative confirmation will be helpful to solve the housing problems of the vulnerable groups.However,there are no clear and systematic provisions on the subject,object,content and other aspects of the right of residence,which is embodied in the fact that the rights and obligations of the right of residence are not clear,and the cognition of the right of residence is still limited to its safeguard rights,and lack of disposition rights and interests of the right holder,and do not allow the transfer and inheritance of the right to live,artificially limit the value of its rights.The right of residence has different characteristics under different rights.The right of residence under private law focuses on the worldliness of the right,and no one can infringe the right of residence.From the perspective of public law,the right of residence is considered to be the general right of residence,which is the right of all members of society to acquire and gradually improve residence.The state should protect the living rights and interests of every citizen.The living right is a kind of survival right and belongs to basic human rights.Therefore,a civil right with its own unique attribute can be established only by considering multiple attribute factors.In view of the defects existing in the system of the right to live,we should actively put forward perfect measures.The subject of the right of residence should not be limited to natural persons,but also legal persons;the object of the right of residence is generally part or all of the buildings owned by others,including houses,land and other attachments.Compared with general non-rights,this reflects the flexibility and adaptability of the right of residence;the right of residence holders have the right to own,use,and prioritize the right to the house they live in,as well as the right to income and repair the house.The obligation to use the house reasonably,to compile the property list and provide guarantees,to bear the daily necessary expenses and to return the house in a timely manner.The establishment of the right of residence should also be stipulated.For example,if the parties can obtain the right of residence by signing a contract,they can also obtain the right of residence through a one-way legal act in accordance with the parties personal wishes.Due to the extensive nature of social affairs,the limitations of legislators cognition level and the lagging of laws,judges should be granted the right to create residency based on specific circumstances.Finally,the right to reside in a time-efficient manner should also be allowed to maintain social relations that have long been established by trust.Of course,the right of residence is not unlimited.The right of residence is non-transferable,pledged and inherited.Unless the parties agree otherwise,the right of dweller cannot rent out the dwelling.The legal protection of the right of residence should be based on the legislative purpose,that is,to protect the residential rights and interests of the right of residence,to reasonably regulate the various interest relations between the owner,the tenant and the right of residence,and supplemented by the principle of fairness as the behavior guidance standard.The protection principle of the right of residence is set up in the form of written law,the interest relationship between the subjects of each right is weighed,and the right of residence is rationally regulated from the perspective of reality.In addition,fairness should also be taken as the guiding principle of justice when dealing with practical issues such as disputes over the right of residence.Effective relief for the right of residence is now more subject to the protection of property law.When the residential rights and interests are infringed by others,the right holder can protect his residential rights and interests by means of real right protection.The development of every system has to go through a process from immaturity to maturity.By analyzing the problems faced by China residence right system at different stages and solving them one by one to improve the relevant legislation,the development of China residence right system can rise to a higher level.