| Before the promulgation of the Civil Code,the right of habitation was not a legal real right in our country.In judicial practice,judges usually invoke the principle of civil law or other civil legal norms to protect the parties’ rights and interests of habitation.However,as to whether the "right of habitation" claimed by the parties can be recognized,whether the"right of habitation" can be excluded from compulsory execution,even in the case of similar cases,different judges will make different decisions.After the habitation right is codified,the judge can judge the cases involving the confirmation of the habitation right according to the conditions for the establishment of the habitation right stipulated in the Civil Code,which can solve the problem of different sentences in the same case in judicial practice to a certain extent.In the civil execution procedure,when an outsider raises an objection on the grounds that he enjoys the habitation right of the subject of execution,the judge does not have a uniform enforcement rule to base on,so the judge needs to exert his discretion in the specific case.However,in the specific judicial practice,due to the absence of legal norms,the simplification of the implementation of the principle of property registration,the different angles of balancing the conflict of rights,and the weak awareness of recognizing and examining the authenticity of the establishment of the right of habitation,there are different cases of the same case,which also brings convenience for the malicious parties to establish false habitation rights to evade execution.Not conducive to the development of socialist rule of law.Therefore,based on case studies,comparative studies and other methods,this paper analyzes the cases involving the execution of habitation right houses before and after the promulgation of the Civil Code,and puts forward ideas for judges to examine whether the habitation right has the effect of excluding execution.That is,when reviewing and judging the effect of the exclusion of the enforcement of the right of habitation,the judge should identify and examine the authenticity of the establishment of the right of habitation in combination with factors such as the time when the right of habitation was established and whether the house where the right of habitation is established is the only house,and when there is a conflict between the real,legal and effective right of habitation and the ordinary right of credit or mortgage,the principle of interest measurement can be used to judge.The final judgment is in line with the core values of socialism. |
