| The concept of "the right of habitation" originated from Roman law,came from marriage and family relations,and is closely related to property inheritance.The traditional right of habitation has distinct character of personal servitude,which refers to the right to occupy and use other people’s houses,and has the characteristics of identity specificity and forbidden to be transferred.With the Social and economic development,Germany and other countries have developed a system of investment habitation right focusing on usufruct,liberalizing the restrictions on the subject of right and the circulation of right,and promoting the diversification of real estate utilization.China included the right of habitation into the draft civil law in 2002,but there was a great dispute about the necessity of establishing this provision.Finally,after the fifth review of the draft,the legal Committee of the National people’s Congress deleted the relevant provisions of the right of habitation.However,this decision did not quell the dispute over the right of habitation.In 2018,with the continuous increase of related cases,the right of habitation was once again included in the draft civil code,and appeared as an independent chapter in the Civil Code of the people’s Republic of China(hereinafter referred to as the Civil Code)issued in May 2020,which shows that the right of habitation still has a realistic voice and significance that can not be ignored.This article believes that the reason why the right of habitation in our country has been accompanied by the controversy is that the right of habitation as one of the personal servitude can not meet the needs of the times,so the opponents think that the legislative cost is higher than the practical effect,neither can the proponent demonstrate the social value of the housing right system.Therefore,we should clarify the nature and form of the right of habitation,and divide the habitation right into social habitation right and investment habitation right.On the one hand,we should standardize the investment habitation right and give it usufruct functions,such as inheritance,transfer and lease,and the burden of rights,so as to give full play to its institutional vitality and advantages under the condition of high house prices and increasing aging in today’s society.On the other hand,the norms of social habitation right of personal servitude shall be defined in specific fields,and strictly restricted,such as identity specificity,and forbidden to be transferred,inherited or leased,so as to play its traditional function of safeguarding the basic living needs of specific subjects.The importance of the habitation right is reflected in the special chapter of the Civil Code,but six articles alone may not be clear and comprehensive enough.Moreover,the law strictly limits it to servitude,which makes the application of habitation right lack vitality.This article believes that we should further clarify and perfect the system of habitation right in our country,so that it can add impetus to the economic and social development.Specifically,this paper is divided into five parts: The first chapter is about the basic theory of residence right.This paper will trace the origin of the concept of habitation right,analyze it with the relevant concepts,and analyze the positive significance of perfecting the system of habitation right in China.The second chapter is the analysis of the judicial operation of the right of habitation system in China,from the macro and micro angles.The third chapter is the experience and enlightenment of the extraterritorial habitation right system,analyzes and draws lessons from the relevant legislation and judicial situation of the habitation right of the foreign countries,from which summarizes the experience beneficial to the improvement of the habitation right system in China.The fourth chapter is the main part of this paper,will put forward the concrete suggestions to perfect the habitation right system,including seven aspects: The legal orientation of the right of habitation system,the establishment of the right of habitation,the subject of the right of habitation,the object of the right of habitation,the rights and obligations of the owner of the habitation right,the rights and obligations of the owner of the real estate and the elimination of the habitation right.The fifth chapter mainly discusses the connection between the system of habitation right and the system of common property right house and inheritance system,in order to maintain the harmony and unity of the legal system and give full play to the positive role of the system of habitation right. |
