The Introduction And Improvement Of The Right Of Habitation In Civil Code

The right of habitation is an ancient system of personal servitude originated in Roman law.Since the modern codification movement,the habitation right system has been generally adopted by various European countries,and has been improved and developed to varying degrees.In the process of our country’s real right legislation,the right of habitation once entered the "Real Right Law(Draft)",but it was finally abandoned.Nowadays,the work of compiling civil code is coming to an end,and the right of habitation appears again as a new usufruct right.However,there is still a great controversy in academic circles about its existence and its concrete construction.On the basis of demonstrating the necessity of the right of abode system,this paper amends and supplements the provisions on the nature,establishment,subject and object,rights and obligations of the right of abode,in order to give full play to its function.The main part of this paper is composed of four chapters,each of which is as follows:The first chapter introduces the argument of the right of abode in the theoretical circle and the sublation of the system.Since the establishment of property law,the academic debate about the right of habitation has not stopped,the author listed a more representative point of view.The right of habitation originated from Roman law,but not all countries of Roman law system passed on it.For example,the civil law of Asian countries has rarely been found.Chapter two and chapter three demonstrate the necessity of the right of abode entry from the aspects of theoretical function and actual demand.In the second chapter,the author discusses the theoretical significance ofestablishing the right of habitation from three angles: the right of habitation can effectively ease the deadlock of the legal real right,make up for the deficiency of the system of usufruct right and perfect the system of personal servitude in our country.In the third chapter,the author firstly introduces the judicial practice,the existing system in the face of the plight of the right to live,and then from the right of habitation can be used for the realization of the government housing security system,the effective implementation of the will of the parties,the realization of diversified use of housing and other aspects of the real significance of the existence of the right of habitation system.The fourth chapter is the perfection of the right of abode provisions in the Civil Code(Draft).Through the investigation of foreign legislation,combined with the national conditions of our country,the following views are put forward: the establishment of the right of habitation in addition to the contract agreement and will to obtain,but also to add bequest,legal way.In principle,the right of abode with strong personal specificity may not be transferred,inherited or mortgaged,nor may the house be leased,unless otherwise agreed by the parties.It is necessary to further improve the rights and obligations of the right-holder,who may have the right to benefit and dispose of the house in addition to the possession and use of the house.Similarly,the purpose of establishing the right of habitation may have other purposes besides meeting the needs of living and living.In addition,we can draw on the preemption rights of the co-owner and lessee to give the same rights to the resident during the duration of the habitation right.The resident should also use other people’s houses properly and fulfill the duty of good management.We can also refer to the provisions in the gift contract that the donor obtains the legal revocation right and the successor loses the inheritance right in the inheritance law,so that the owner has the right to revoke the habitation right under certain circumstances.