| The right of habitation originated from Roman law.Its original intention is to meet the housing needs of vulnerable groups in families(such as surviving spouses,divorced women and the elderly),and implement the legislative purpose of protecting the rights and interests of survival.Human servitude is its fundamental attribute.Later,with the transformation and development of social economy,new models of housing security continue to emerge.Its basic feature is to expand the scope of application of the right of habitation while inheriting the servitude of the right of habitation,allowing the parties to carry out investment transactions of the right of habitation through contracts or wills,and the family ethics and personal attachment of the right of habitation continue to be weakened,Gradually evolved the intended right of habitation that can be circulated and traded.China has always maintained a cautious attitude in the transplantation of the right of habitation.After more than 20 years of discussion,it has finally been incorporated into the real right series of the civil code,but only the intentional right of habitation has been introduced,rather than the legal right of habitation which is more concerned in theoretical research and judicial practice.The lack of legal habitation right system makes it difficult to solve the habitation right disputes among family members in China’s judicial practice,such as the housing security of non property right spouse of marriage habitation,the housing security of spouse with difficult life due to divorce,the housing security of surviving spouse under inheritance law and the housing security of other weak family members.Based on the analysis of difficult and complex cases in judicial practice and the experience of relevant systems abroad,this paper attempts to build a legal settlement right system model.According to the right model,the text includes four parts.The first part is an overview of the legal right of habitation.Firstly,from the evolution of the concept of habitation right in Roman law,civil law countries and China,the legal habitation right can be defined as family members with housing needs or housing difficulties.Based on the legal provisions,they claim the right to live and use the marriage and family house from the owner of the marriage and family house.Secondly,the legal right of habitation is compared with similar concepts,such as the right to settle down,the social security legal right of habitation,the right to rent public houses,etc.,to confirm its characteristics of real right,legality and ethics.Finally,it further summarizes the theoretical basis and existing value of the legal right of habitation,such as meeting the ethical requirements of family collectivism and protecting the weak,realizing the beautiful vision of "living and living",and enriching the types of real rights.The second part is the comparative study of legal habitation.From the perspective of right norms,this paper first makes a comparative study on the establishment mode,type and scope of legal habitation in civil law countries.Secondly,it introduces the legal right of habitation system in common law countries,such as the marriage Housing System in Britain,the special reservation system in the garden and the lifelong real estate system in the United States.Finally,it summarizes the system construction experience of the protection of the residential rights and interests of vulnerable family groups abroad,that is,China’s legal habitation right system should be constructed in the way of the combination of general norms and special norms with reference to civil law countries,and the marriage and family housing system should be added at the same time.The third part is the necessity and feasibility analysis of the construction of legal habitation right,which is the key research part of this paper.In terms of necessity,first of all,the high house price,the serious individualistic tendency of marriage legislation,the aging and the rising divorce rate make it impossible for everyone to retain the ownership of the house.It is necessary to add the legal right of habitation.Secondly,the function of the right of settlement in the real right compilation of the civil code is not clear,and the lack of family ethics and other legislative deficiencies make its application limited.The relief system for the weak in the field of marriage and maintenance can not provide corresponding assistance for the weak in the field of family support.Moreover,in the face of the disputes over the right of abode in the family field,which only increases but not decreases in judicial practice,the legislation must be followed up.On the other hand,the legislative and judicial exploration on the construction of legal habitation system abroad also provides a reference for the legal habitation system.The fourth part puts forward personal opinions on the system design of China’s legal habitation right from the perspective of legislation,in order to provide some ideas for the entry of legal habitation right into the code in the future.Firstly,the legal right of habitation should be positioned as a right with both the attribute of real right and the attribute of identity right,and its legislative model should adopt the "three part collaborative system" to better coordinate the various parts of the civil code.Secondly,the subject of legal habitation right should be limited to family members,and the object should be marriage and family habitation.At the same time,the specific application of the legal right of habitation is not fully listed to ensure the openness of the system.Moreover,the legal right of habitation originates from the express provisions of the law,and registration has antagonistic effect.Finally,it briefly summarizes the right conflict and coordination in the process of exercising the legal right of habitation. |
