Study On The Application Of The Law To The Right Of Abode System

The system of the right of abode,which originated in Roman law,gave the holder of the right of residence the right to occupy and use the residence of others.China’s 2002 Draft Property Law made detailed provisions on the right of abode system,which was deleted due to too many disputes.After full demonstration,the academic community once again affirmed the value of the right of abode system.Since the implementation of the Civil Code in 2021,the number of cases based on disputes over the right of abode has gradually increased,reflecting the controversy in practice over the subject and object of the right of abode,the time of obtaining the right of abode in the form of a will,and the priority judgment of rights when the right of abode and mortgage coexist.The reason for this is that there are different understandings of the six articles of the right of abode system,resulting in different judgments in the same case.Although most cases take the right of abode dispute as the cause of action,it is still a matter of property division,whether it is the redivision of property after divorce or the disagreement between children on the division of property left by their parents,reflecting that the right of abode system is still used to resolve disputes between kinship relationships,and the application is too narrow."Home ownership" is the most basic value expectation,the integration of urban and rural development continues to advance,the market economy is moving forward,we should see that the right of residence system has an incomparably broad application space,from the purchase of small property rights to the establishment of residence rights on rural collective construction land,to achieve the legal use of rural housing by urban residents,or to allow residential owners to establish the right of residence for their future on the residence,the significance of the right of residence system is not only to protect basic housing rights,but also to match the continuous development of social needs.The right of abode system should be given sufficient space for development.From the perspective of interpretive theory,this paper analyzes the scalability of the subject and object of the right of residence in the application of law,analyzes the impact of different ways of setting the right of residence on the acquisition of the right of residence,explains the resolution of the conflict between the right of residence and the mortgage right,and expounds the thoughts and ideas one by one in the form of chapters,explains the views and ideas more clearly,puts forward humble opinions,and hopes that the right of residence system will be fully applied in judicial practice.This paper discusses the legal application of the right of abode system in four different dimensions:The first part is the scope that should be covered by the subject of the right of residence.It is clear that the co-occupant of the right of residence must not necessarily obtain the qualification of the subject and safeguard the interests of the owner of the residence.The right of residence obtained without compensation,combined with Article 19 of the Civil Code,may be acquired without retrospective recognition by persons with limited civil capacity.Legal persons and unincorporated organizations have the possibility to become subjects of the right of residence,and strive for more possibilities for the establishment of the right of residence for investment.Urban residents who wish to purchase houses on rural collective land can obtain the right to use rural houses through the right of abode system.The second part is the type of housing that should be included in the object of the right of residence.One clarifies the specific connotation of "others" to provide a reasonable space for the homeowner to establish his own right of residence for himself in the future.The second explains the possibility and rationality of commercial housing,apartments,rented houses,seized houses,and houses with limited property rights,and the components and ancillary facilities of residential buildings becoming the objects of the right of residence.The third shows the realistic possibility that the right to use small-ownership houses can be legalized through the right of residence system.The third part is the rules for changes to be followed in the acquisition of the right of residence.There is a time lag between the time when the right of abode established through a will is obtained and the effective time of the will,so it is discussed whether the right of abode established in the form of a will should follow the registration validity doctrine or the registration adversarial doctrine.In view of the fact that a will becomes effective upon the decedent’s death,the registration adversarial doctrine is applied to balance the relationship between the effective acquisition of the will and the registration of the right of residence.The same applies to the confirmation of the acquisition of residency through a legal instrument in force.The fourth part is the resolution of the conflict between the right of residence and the right of mortgage.When the right of abode corresponds to a usufruct right and a mortgage corresponds to a security right,one right may hinder the realization of the other.The author should determine the priority of the right of residence and the right of mortgage,and then by referring to the settlement path of the existence of both mortgage and lease contracts on the residence,the criterion is whether the mortgagee and the holder of the right of occupant are bona fide,especially the time of obtaining the right of residence and the authenticity of the acquisition so as to resolve the contradiction between the right of residence and the mortgage.