Research On The Establishment Of Residence Right

Before the promulgation of the Civil Code,there was no residential system in China,but the cases of residence had emerged endlessly in practice.When dealing with such disputes,the courts often fell into the dilemma of having no law to follow,and it was difficult to guarantee the residential rights and interests of vulnerable groups properly.Fortunately,the right of residence system which shows humanistic feelings and value orientation of civil legislation in China stipulated explicitly after some ups and downs.Till now,the Civil Code has been in effect for more than a year.how well does it work in practice? Can it meet the legislator’s expectation of setting up the system?If the density of the right of residence system is insufficient,how to expound and renew it? There are many problems that need to be studied.For a long time,the academic research on the right of residence system mainly focuses on theoretical analysis.Before the promulgation of the Civil Code,the research focused on the legislative issues,that is,whether China should legislate the right of residence system,how to legislate the right of residence system;After the promulgation of the Civil Code,the academic research focus began to shift from the legislative theory to the interpretation theory,aiming to overcome difficulty of law application with legal interpretation.However,due to the lack of specific practice of the system,there is no way to study the case of the right of residence with real right significance,so the academic research on the right of residence system is mostly based on the perspective of “should be”.Nowadays,the system of the right of residence has changed from theory to practice,and the supporting measures of the right of residence have been gradually established.The conditions for studying the right of residence from the new perspective of judicial practice are increasingly mature.The right of residence originated from Roman law which entangles with many other legal relations,and has been endowed with new functions with the development of the times in comparative law.Facing many prominent practical problems,so subject of this paper is narrowed down to the establishment of the right of residence.This paper sieves out 357 juridical cases about residential rights disputes after the right of residence comes into effect,among which 105 cases are attached great importance by sorting focuses of controversy and juridical basis,combined with legislative purpose and realistic value,finally extracting difficulties in applying law in current juridical practice.Putting forward targeted solutions to eliminate juridical differences and improve legal system based on hermeneutics in addition.First of all,in the way of contract establishment,the identification of residence agreement is prominent.In practice,the disputes focus on three aspects.One is the dispute on the standardization of residence contract,that is,what type of agreement can be regarded as residence contract and what elements of the agreement are considered terms of residence.A legal and effective written agreement between the parties concerned is the prerequisite for registration,and such issues are not clearly identified,that is,the establishment of the right of residence cannot be successfully completed.For example,some courts believe that divorce agreement and purchase agreement can be regarded as the contract of residence,but some courts do not recognize it,and believe that it is not the contract of residence stipulated in the Civil Code;Second,the dispute over the validity of the non-written conclusion of the contract.Only oral agreement will produce what kind of effect;The third is the dispute over the legal nature of the public rental contract.There is debate as to whether such contracts should be regarded as residential or rental agreements.In order to better connect historically reserved issues,and for the consideration of the specific identity of the parties concerned and the need to expand the application scenarios of the right of residence system,the identification path should be unified: the identification of the type of the residence contract should be lenient,so that the vulnerable groups can smoothly register and obtain the right of residence;According to the “contract cure” rule to distinguish the effect of signing the residence right contract without written notice;Public rental housing should be included in the protection of the right of residence system to reverse the unbalanced state of protecting the interests of these groups in practice.Secondly,in the way of the establishment of the testament,there are unclear rules.Although the adoption of“reference application” legislation technology of testamentary residence has realized the simplification of legal norms,but because testamentary residence has its own characteristics,people from all walks of life hold differing views on how to “reference”,which has affected the specific application of testamentary residence.It’s found that main focus is on forms of testamentary disposition,registration effect,and registration subject according to case trial.As to forms of testamentary disposition,it should not be limited to written requirements if a true-meaning testamentary comply with requests of establishment of the right of residence system;As to registration effect,it should adopt registration antagonism against registration effectiveness,but for the bequest,registration effectiveness should still be adopted.As to registration subject,administrator of inheritance is a better selection.Finally,massive cases indicate that it is hard to protect the residential interests of particular groups by means of a single voluntary establishment.It is easy for the court to fall into a judicial dilemma when judging such cases without residence contract or testamentary in condition of three current methods all have insufficiency.Strictly follow the rules of establishment of the right of residence to judge,the parties’ interests of residence will be lost;No theoretical support for a direct judgement that the right of residence deriving from the parties;Seeking the judgment of basic principles such as public order and good customs is the same as the thinking of the trial before the Civil Code came into force,and the legislative value of the right of residence system is suspended.It is suggested to expand the existing way of establishing the right of residence,clarify the validity of the right of residence,gather the consensus of the judgment,and treat the same case equally.At the same time,the specific applicable rules for adjudicating residence right should be determined,and the establishment standard,establishment scope and establishment period should be narrowed down,so as to prevent the unlimited expansion of discretionary power.