| The right of habitation originated from Roman law,which is to solve the housing problem of vulnerable groups in marriage and family,reflecting the humanistic care of law.Subsequently,the civil codes of Germany,France and other countries followed the residential right and developed.China’s civil law has repeatedly stipulated the right of residence,which is finally established in the civil code.However,the number of provisions related to the system is relatively small and more principled.Therefore,it is necessary to strengthen the research on the right of abode system in order to give full play to its function.China’s "property law" draft has made provisions for the right of abode system,but some think that its scope of application is limited,and its function can be replaced by other legal systems,the system was not included in the 2007 "property law".However,the academic discussion on the right of abode system has not stopped.Based on practical considerations,the legislature has stipulated the right of residence in the civil code of 2020.The introduction of the right of abode into the code shows that our country pays close attention to the housing problem,reflects the attention to the vulnerable groups,and has the color of humanism.However,the function of the current law for the right of abode system is relatively narrow,which fails to break through the limitation of the servitude of the right of abode.It is limited to the function of social security,and the relevant provisions are not detailed enough,which will cause difficulties in judicial application.With the development of social economy and the diversification of resource utilization,we should conform to the development of the times,recognize the investment function of the right of residence,and refine the existing provisions,so as to better play the regulatory function of the right of residence in judicial practice.The way of establishing the right of abode is single and the registration system is not perfect.According to the civil code,the right of abode can be established only by will and contract,that is,by will.Although the regulation reflects the respect for individual will,it has its limitations.The contemporary social life is complicated.It is difficult to meet the diversified social needs to set up the right of habitation in a purely intentional way.It is necessary to add the way of setting up the legal right of habitation to adapt to different social situations.For the establishment of the right of abode by will,the establishment registration should be discussed according to the situation.Testamentary succession adopts registration antagonism and bequest adopts registration effective principle,which can be coordinated with the real right system.China’s current legislation stipulates that the right of residence is free in principle and can not be transferred or inherited.This restriction can not adapt to the trend of diversified social development and affects the realization of the benefit value of the right of residence.Based on the analysis of the current situation of China’s economic and social development,this paper proposes to recognize two different types of residential rights,social residential right and investment residential right,so as to give full play to the investment function of residential right.The transferable investment right of residence can play a unique role in maximizing the use of housing,promote the perfection of China’s housing system,overcome the shortcomings of the current right of residence,and also have a positive impact on the future social development.The rights and obligations of the residents are the important content of the legal relationship of the right of residence,but there are only six provisions on the right of residence in the civil code of China,which are too general in general.The rights and obligations of the residents are not clear,which will have an adverse impact on the implementation of the right of residence.In the absence of an agreement,the law should stipulate the rights and obligations of the residents.The owner has the right to reasonable use,the right to live with family members and the right to rent.The change of ownership does not affect the right to use.The owner of the right of abode has the obligation of good faith use,maintenance and necessary tolerance. |
