Research On The Right Of Residence From The Dual Perspectives Of Marriage Law And Property Law

Habitatio is a usufructuary right derived from the ancient Roman law.The civil code of civil law countries such as Germany,France,Italy and Russia stipulate the system of habitatio,and the civil code of Macao of our country also stipulates the system of habitatio.Anglo-American countries do not have a system of habitatio,but their jurisdictions have the similar rights to the parties as.There is no relevant legislation in the mainland of China,but the judicial interpretations of Marriage Law gives the person who has difficult life at the time of divorce similar right.Scholars have always debated whether there is any need to establish habitatio in our country.Scholars who support the establishment of habitatio mainly seek to find arguments from the perspective of improving the efficiency of housing utilization and protecting the interests of the disadvantaged groups.,while the opponents object habitatio under the perspectives of system classification habits,institutional environment and non-realistic needs.In our country's judicial practice,a great deal of habitatio disputes exist,such as the chaotic nature of habitatio rights,the inconsistent referenda in the application of legal principles.The problems of different sentences in different jurisdictions highlight the issue of the legislation on habitatio in urgent need in our country.In order to legislate habitatio,from the perspective of the Property Law,we must fully consider the reality of the complex and diverse types of housing in our country.From the point of view of Marriage Law,we must regard the family as a common community of destiny,appreciating the family ethic,highlighting the Marriage Law's function of guidance to the family and marriage.When constructing the system of habitatio,the establishment of habitatio is divided into two forms: statutory and contract,while the subjects of habitaio include the non-proprietor during the marriage's surviving period,the minor or the child who can not live independently,the parents of difficult living,and the other person authorized by the house owners.Persons who have habitatio may,together with their relatives,exercise their right of possession and use of the house,enjoy preemptive rights when the owner of the house grants the house,and at the same time,have petition right and damage claim.However,the occupier must use the house within a reasonable limit and shall not knowingly damage the ownership and the legitimate interests of the owner,and shall return the house when the term of residence expires or other circumstances in which the right of abode is destroyed.When the residents violate his obligation,the owner can revoke the habitatio or apply to the court for revocation.