Functional Analysis Of China's Right Of Residence Law

The right of residence refers to the right of non-owners to reside in houses and ancillary building facilities owned by others.It originated from The Roman law and was inherited by Germany,France and other major Continental European countries.The system of residence right was set up in the draft property law in 2002,but it was deleted from the draft because many scholars thought it was not necessary to establish residence right in the legislation of property right in China.In the new period,China started the formulation of the Civil Code of the People's Republic of China.Among them,there are still great differences as to whether the right of residence should be stipulated in the real right compilation.The denialists hold that it is neither feasible nor necessary to stipulate the right of residence,from the consideration of legislative structure,social foundation or the function and value angle of the right of residence itself.The affirmative argument holds that the right of residence is not only conducive to the protection of the right of residence of divorced women,the elderly and other vulnerable groups,but also conducive to the implementation of the owner's free will to dispose of property and give full play to the utility of the property.Both the denialists and the affirmatists only limit the function of residence to the traditional ethical scope,but fail to recognize the investment and financing functions of residence in other economic fields.Therefore,from the perspective of the extension of the right of residence,starting from the actual institutional needs of China,the function of the right of residence is expanded from the traditional ethical to the coexistence of investment and ethics,and it is regarded as a legitimate reason to enter the field of China's legal norms.Concretely,the subject of the right of residence should be expanded from natural person to all civil subjects,including legal person,illegal organization,and the limitation that the traditional right of residence is neither transferable nor inherited.In addition,the specific rights and obligations of the right of residence system should be left to the parties to make their own decisions,and the free will of the right holder should be fully respected.The law should not interfere too much.Only in this way,the right of habitation in our country coruscates a new strong vitality.