Research On The System Of Habitatio Under The Background Of Civil Code Compilation

The system of housing residence in civil law originated from Roman law and has wide acceptance in civil legislation of civil law countries.Chinese legislators recognize that there is a large number of objective needs of the right of residence in civil life in our country.This right,which has been repeatedly discussed in the process of legislation of property law but has not been set up,has been added to the current draft of the civil code,and provides for the system of residence rights as a whole.This thesis is mainly divided into three parts: the first part is the discrimination of residence right attribute.The most important characteristics of the servility of the resident are the moral assistance and personal exclusive attachment,which determine the free establishment and restricted circulation of the traditional residence right,and the function is limited to guarantee the basic living housing needs of the object in the specific identity in the family relationship.But servility is not the inherent attribute of residence right,in the evolution of residence right legislation,it is only the result of the economic and social foundation requirements reflected by rights in a specific historical stage.When the economic and social basic conditions change,the human servility facilitates the residence right to travel gradually away,the residence right function has realized the new development.France,Germany,Austria,Canada’s legal system of residence in ancient Roman law confirmed this view.The right of residence also has usufruct property,which is different from other real right of ownership and real estate usufruct related to housing.Through the in-depth study of the right of residence attribute,the right of residence representation and ontology are clear at a glance.The second part focuses on the analysis of the specific provisions of the right of residence in the draft civil code.One is to examine the value of the legal provisions of the right of residence,and to reveal that private autonomy,the protection of the weak,equal compensation,equality and efficiency are the values of the right of residence system,but the core value of the right of residence system lies in private autonomy;the other is to explain the definition structure of the right of residence,the way of establishment and the effective mode of registration,explain the content of the right of residence and the reasons for its elimination.The third part of the thesis is the perfection of the draft civil code of residence right.The opening level of current residence right legislation in China needs to be improved,and the missing content needs to be supplemented.First,the definition of rights in draft article 366 should be amended to respond to the need for the expansion and utilization of the scope of the right of residence in the new era;second,further consideration should be given to the circulation of the right of residence on the basis that the draft already allows the parties to exceptionally agree on the establishment of the right of abode for compensation and the rental of the house for which the right of residence is to be held;third,the provisions on the obligations of the parties should be added;fourth,to refine the registration of the provisions that give effect to property rights;and fifth,to supplement the provisions of draft article 371 that establish the right of residence by other means.