Research On The Right Of Abode System Of China’s Civil Code

On January 1,2021,the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")came into force,ending the era when there was no unified civil code in China.In order to respond to the needs of society and to the spirit of "a sense of security for the elderly and a sense of housing" as proposed in the report of the 19 th National Congress of the Party,the Civil Code has added the right of residence system and dedicated a chapter to it.This is undoubtedly one of the highlights of the Civil Code,but also a major progress in the construction of the rule of law in China.Regrettably,however,the content of the existing right of abode system does not satisfactorily respond to the practical needs.In life,there are many cases of purchasing business apartments for residence,but the effectiveness of establishing the right of residence on such buildings is questioned under the ambiguity of the scope of "other people’s residence";the owner of the house demands to "live under the same roof" with the right of residence.In the absence of the statutory establishment of the right of residence,it is difficult to satisfy the demand for the creation of the right of residence by judicial decision,and the system of the right of residence to protect the vulnerable groups is greatly reduced.The lack of a legal way to establish the right of residence in practice makes it difficult to meet the demand for the creation of the right of residence by judicial decisions,and the system of the right of residence to protect the vulnerable groups is greatly reduced.All these obviously hinder the proper solution of the housing security problem and make it difficult to effectively implement the goal of "housing security",which is even related to the construction and development of a harmonious society.Against this background,this thesis examines China’s right of abode system,details the problems in the application of China’s right of abode system,draws on the mature legislative experience of foreign countries and takes into account the actual situation in China,and proposes suggestions for the improvement of China’s right of abode system in order to maximize its natural value.This thesis is divided into four major parts,except for the introduction and conclusion.The introductory chapter is the first chapter,and the remaining chapters 2,3,4 and 5 are briefly described as follows:Chapter 2,Overview of the right of abode system.First,this chapter defines the right of residence by analyzing the connotation of the right of residence in different perspectives and the basic characteristics of the right of residence;then,this chapter expounds the dual attributes of the right of residence as a servitude and a right in rem;then,this chapter makes a typology of the right of residence and subdivides it into the right of secure residence,the right of investment residence,the right of social security residence and the right of family security residence according to different criteria,in order to examine the nature of the right of residence from different perspectives.Finally,this thesis reviews the current legislative status of the right of abode system in China,which is regulated by the Civil Code in six articles,from 366 to 371,in four aspects.Chapter 3:Problems in the application of the right of abode system in China and their analysis.This chapter highlights three problems in the application of the right of abode system in China through cases: First,the intentional right of abode cannot meet the real needs-at present,without the consent of the parties,the court will not be able to establish the right of abode for the vulnerable subjects because there is no legal basis for it.In addition,the first part of this chapter provides a comparative analysis of the intentional right of abode and the statutory right of abode and discusses the necessity of creating the statutory right of abode.Secondly,the scope of the object of the right of residence does not correspond to the practical reality-the scope of "other people’s residence" is ambiguous,and the effectiveness of the right of residence created by commercial buildings with residential function,such as commercial apartments,has been negatively evaluated at the judicial level.In the second part,the scope of the right of abode is analyzed and the feasibility of establishing the right of abode in residential buildings and their annexes is discussed.In the current situation,the legislation has not yet clarified whether the owner and the possessor can share the same object of the right of residence,whether the existence of the right of residence affects the mortgage execution,whether the mortgage execution can exclude the influence of the right of residence,etc.In judicial practice,"different rulings in the same case" At present,judicial practice is filled with "different rulings in the same case".Chapter 4,Examination of the extraterritorial law of the right of abode system.This chapter examines the right of abode system in England,a representative of the common law system,and the civil law systems of France,Germany and Japan,all of which provide for the right of abode in the form of statutory law,each with its own characteristics;then,the specific contents of their right of abode systems,especially with regard to the problems in the application of the right of abode system in China,are analyzed,and it is considered that their diverse ways of establishing the right of abode,recognizing all habitable It is believed that their diverse ways of establishing the right of abode and the recognition of all habitable places as objects of the right of abode are of reference significance for improving the right of abode system in China.Chapter 5: Suggestions for improving the right of abode system in China.In this chapter,the improvement of the right of abode system is considered from two levels,firstly,the improvement path of the right of abode system in China is proposed.Compared with the revision of the Civil Code and the promulgation of individual laws and regulations,the introduction of judicial interpretation of the right of abode should be the natural path for the improvement of the right of abode system in China,both from the perspective of legislative costs and from the perspective of benefits.Further,the specific improvement of the right of abode system is proposed,one of which is the creation of statutory right of abode,including legislation directly creating the right of abode for specific subjects and giving the parties the right of abode through judicial adjudication;the second is the clarification of the scope of the object of the right of abode,all buildings with residential function can be the object of the right of abode,and the right of abode automatically extends to the building appurtenances necessary to meet the needs of living and living;the third The third is to clarify the rules for dealing with the conflict between the right of residence and its other property rights,and to protect the rights and interests of both the owner and the owner of the right of residence.