Study On Residence Right System Of Civil Code

"Land for the tiller and house for the dweller" is the aspiration and pursuit of generations of people living on the land of China for thousands of years.It embodies the thought of people’s livelihood from Mencius to Sun Yat-sen to the older generation of revolutionaries.In the west,the residence right system originated from Roman law and had a profound influence on the legislation of many countries.In the real right compilation,the Civil Code clearly stipulates the residence right system for the first time in the form of legislation,providing legal protection for the most basic housing needs of some "difficult" groups.Nevertheless,the Civil Code provides for a right of abode regime in only six articles,which is rough and general.When implemented in judicial practice,many legal disputes may lack legal basis.In this regard,this paper is mainly divided into the following three parts to styudy:The first part expounds the connotation of residence right in constitution,marriage,family,inheritance and property rights.At the same time,it introduces the foreign residence right theory,clarifies the legislative purpose of residence right system,and provides some ideas for perfecting our residence right system.The second part summarizes the existing disputes and questions about the residence right system.First of all,the paper shows the narrow scope of application of the existing social functions of the residence right system,which can only meet the common basic needs of daily life and residence,and is not enough to deal with various problems of the residence right,such as the development trend of investment residence right.Secondly,due to the lack of existing norms of the right of residence,the author expounds the current situation of disputes about the effective rules of the testamentary right of residence,the legal right of residence,the subject,object and scope of rights of the right of residence,and the conflict resolution mechanism when the right of residence coexists with the right of ownership or mortgage.The third part is based on the basic position of functionalism--the legal interpretation should be guided by the function of law to realize the right of residence system.According to the needs of the preset purpose of residence right,starting from the interpretation mode of functionalism,its functional attributes are extended to "security" and "investment".According to the function of the former,the conflict between the effective time of testamentary residence and the effective registration of general residence right is solved by taking the guarantee embodied in testamentary residence right as the theoretical basis,distinguishing the will of residence right from the inheritance of legacy,and clarifying the different registration effects within testamentary residence right.Add the right to judge the protection;According to the functional orientation of rights,the coordination mechanism between the right of residence and the right of ownership or mortgage is clarified.According to the latter function,the establishment of investment residence right is allowed,and the subject,object and scope of rights of security and investment are specified respectively.