Study On The Right Of Habitation

The right of habitation is defined as the resident right holders’ possession right and usufruct of a part or all of the houses and corresponding auxiliary facilities.In 2007,when the Real Right Law was enacted,China tried to include the habitatio in the usufruct system,however,due to the lack of system foundation and practical needs it was completely deleted in the fifth deliberation.Now the right of habition is still vacant in China’s formal law.The real right part of the Civil Code(Draft)published in December 2019 retains the relevant contents of right of residency,which means habitatioh is expected to be reserved in the officially issued real right part of the Civil Code.It is proved that now China needs the establishment of the right of residency more than ever.Three reasons are listed: firstly,the contradiction between population growth and housing shortage in China has become increasingly prominent,which shows that there are still a lot of realistic demands for housing rights in the new period.Secondly,there have been many new changes and problems in the economic life of Chinese people,and the original legal system has not been able to solve the existing housing problems effectively.Thirdly,to adapt to some development in the new era,right of residency has gradually weakened the personal specificity and non-transferability,and function of its system has expanded from the original protection of the rights and interests of the weak to the promotion of the flow of wealth.At last,in judicial practice,the “the right of habitation” of civil facts has been “established” by civil subjects for flexible housing.In summary,at the important turning point of the birth of the Civil Code,we should reconsider the entry of the right of residence system into the code from the perspective of development.Starting with basic theory of habitatio,this paper focuses on the analysis of the its value and function in nowadays society,and points out that this kind of right plays an essential and important role in stabilizing family life,improving housing security,promoting economic development and resolve residential disputes,so as to provide a theoretical basis for promoting habitatio to be included in the real right part of the Civil Code.This paper is divided into three parts: in the first part,the basic theory of habitatio is discussed.This paper introduces the basic situation of right of residency in China,then explores its causes of emergence and nature in Roman law with historical analysis method.Finally,with comparative analysis method,the inheritance and development of modern right of habitation in other countries are discussed.In the second part,the necessity of establishing habitatio is analyzed from two aspects----value and function.By using value analysis method,the basic legal values of habitatio,such as order,efficiency,justice and freedom is analyzed.Combined with the background of times,function of that such as family stability,housing security,economic promotion,and settlement of disputes over the right of residency is discussed as well.In the third part,analysis of and suggestions on the relevant provisions of habitatio in the real right part of the Civil Code(Draft),which has been published in China.In this part,the author points out that in the real right part of the Civil Code(Draft),there are some deficiencies in the scope of object and right,the way to eliminate habitatio,the registration of the change of right of residency,and there are omissions in the rights and obligations of resident right holders,then some corrections and supplement are provided in this paper.To sum up,the following conclusions are drawn: first,China should seize the oppotunity to establish a system of habitatio in Civil Code;second,habitation should be judged from the perspective of development,not subject to the traditional personal servitude.And it is necessary to establish a right of residence system that takes into account both ethics and economy according to China’s national conditions;At last,there are some deficiencies in the provisions on habitatio in the real right part of Civil Code(Draft),which need to be further improved.