The Establishment Of Residence Right And The Design Of Circulation Rules

The right of habitation is an important property right system in the civil code of the traditional civil law system.With the change of social environment,the right of habitation gradually breaks through the restriction of traditional human servitude and becomes arketable.The right of habitation stipulated in The Civil Code of China embodies these two different functions.In this article,through the development of national legislation example comparison and study of demand of our social life,from different angles to reveal the applicable scope of the "civil code" regulation of the residency system should not only confined to the marriage and family,inheritance,and support and other traditional areas,but also should cover for autonomy has spawned new situation of its space in consumption and investment.Therefore,this paper studies the establishment of residence right and the design of circulation rules from four parts.The first part introduces the concept and characteristics of residence right system in detail.Starting from the introduction of residence right system,the author points out that residence right is the right set up by the owner for the occupant in his house in order to meet the living demand of the party concerned.At the same time,it points out the characteristics of the right of habitation,although the right of habitation and ownership belong to the real right,but the right of habitation belongs to the usufructuary right in the real right,and the exercise of the right of habitation is the restriction of ownership,so it belongs to the burden of ownership.In addition,the paper introduces the theoretical origin of the right of habitation and its evolution and development in the civil law system and the Common law system,laying a foundation for the expansion of the function of the right of habitation in the following part.Finally,it points out the development of residence right system in China and relevant legal provisions,indicating the history and stability of the development of residence right in China.The second part expounds the establishment of the right of habitation and its consummation.It can be seen from the provisions of civil code that there are two ways of establishment of residence right in Our country,namely contract establishment and will establishment.However,there are limitations in these two ways of establishment.In order to protect the interests of the vulnerable groups’ right of residence comprehensively,the author puts forward that adjudicated right of residence and legal right of residence should be added.The third part talks about the establishment types of the right of habitation and discusses the different types of the right of habitation with empirical analysis.This section continues the content of the establishment method of the second part,and continues to demonstrate the rationality of the existence of social residence right and investment residence right in combination with China’s judicial practice.As for social residence right,the author divides it into two categories: divorce assisted residence right and survival spouse residence right,which is mainly to solve the housing interests of the people without houses in the field of marriage and family inheritance.With a strong guarantee,strict restrictions on identity requirements,and free establishment,can not be transferred and inheritance.As for the investment right of residence,it belongs to the product of China’s social development and is the right type generated by the expansion of the function of the right of residence.The author divides the investment right into the house-for-pension type right and the joint-housing type right.The establishment of this kind of right does not strictly restrict the identity of the right and the owner,and the parties can flexibly agree the consideration price of the right according to the market changes to meet their different needs.At the same time,since the identity of the right of residence is no longer limited,this type of right of residence reflects the economic investment function of the right of residence,its main purpose is to give full play to the utility of housing,stimulate the vitality of the market,and promote the effective allocation of resources.Therefore,the investment right of residence is different from the social right of residence,which can be transferred and inherited.It foreshadows the writing of the fourth part.The fourth part mainly expounds the applicable field and the legal relationship involved in the circulation of residence right.The circulation field of investment residence right is mainly in the fields of housing endowment and joint building,the content of the circulation of residence right is not the noumanal right of residence right,but the use right of residence right,and the rules are designed from the main body,object and content of the circulation of residence right.The stable development of the right of habitation in China can only be guaranteed by considering all possible scenarios and designing rules.