Research On Investment Residence From The Perspective Of The Civil Code

Since the traditional right of residence is limited to natural persons and cannot be transferred or inherited,it is considered by scholars that it is no longer suitable for the development of modern society.Hence,the concept of investment right of residence is derived.When drafting the real right of the Civil Code,we also discussed whether to create the right of investment residence.Although most scholars hold positive opinions on the creation of investment residence right,it has not been adopted by the Civil Code.The residence right stipulated in the Civil Code is influenced and restricted by the traditional human servitude,and its core function lies in the protection of specific groups.Six provisions,mostly in principle,focus on "general provisions of residence sovereignty","establishment of residence sovereignty","registration of residence right","restriction of residence right" and "elimination of residence right".Although the investment right of residence has not been recognized in legislation,scholars believe that the traditional right of residence cannot fully play its proper role and cannot adapt to the development of modern economic society.On the other hand,due to its flexibility,that is,it does not restrict the subject of rights and allows transfer and inheritance,investment residence can further promote the best use of materials and bring economic benefits into play in the market.When studying the affirmative theory of investment residence,the author finds that its argumentation logic is flawed to some extent,and its reasoning process is often for the successful experience of foreign legislation in the creation of investment residence,and our country has social needs applicable to investment residence.Therefore,the inevitability of investment residence is naturally deduced.This kind of argumentative method ignores the practical problems of the establishment of the investment residence right in China as well as the historical background and social environment in which the investment residence right exerts its effect.Therefore,this thesis investigates the operational experience of investment residence outside the region.From the perspective of comparative law,East Asian countries basically do not provide for the right of residence,and the system is more inherited and evolved from the Western legal tradition.The investment residence is modeled on the dual system of residence in Germany and summarized by scholars by imitating the long-term residence system in Germany.Through historical analysis,the author finds that the long-term residence in Germany has not fully achieved its expected historical effect,and its effect is quite different in the former East and West Germany.The reason lies in that the planned economy and rent control system completely curb the incentive effect of investment residence.From historical experience,if the function of investment residence is to be played,it must be put under the mode of market economy.According to scholars’ theories and corresponding institutional space,it is feasible to set up investment residence.However,from the specific situation of the establishment of investment residence right in China,there are "soil and water not suitable".Investment residence is of great significance to "housing for the aged" and new rural construction,but it can not be applied to the situation of affordable housing.At the same time,investment residence is not an isolated system.To play its role,it needs a matching environment,including a sound business environment,market pricing system,and support from the banking and insurance industries.In short,in order to meet our current social needs,it is necessary to create investment right of residence,but it should be treated carefully.This includes two aspects: First,the creation of investment right of residence will have a certain impact on the new rural construction policy,which is a risky legislative activity,should not be directly stipulated in the "Civil Code" residence right.It may be considered to conduct preliminary tests by special methods,waiting for further empirical investigation;Second,investment right of residence is not applicable to the situation of low-income housing,and the traditional right of residence is still useful in special fields due to its non-transferability.Therefore,the creation of investment right of residence cannot adopt a monadic system,that is,investment right of residence covers the traditional right of residence,but a dual system structure should be adopted,that is,for the fields generated based on administrative behaviors and used to protect people’s livelihood.It can only be established as the traditional right of residence(that is,social right of residence),and the right of residence based on legal acts can be established as the investment right of residence according to the principle of autonomy of will.This thesis mainly studies investment residence from the following five parts: the first part is the overview of investment residence,introducing the origin,concept and characteristics of investment residence,as well as the provisions of the "Civil Code" of the right of residence.The second part is the investigation of overseas investment residence,taking Germany as an example to carry out historical analysis,analyze the effectiveness of its operation mode and specific problems,to provide reference experience and ideas for the establishment of investment residence in China;The third part is the feasibility analysis of the establishment of investment residence right in our country.Analysis of the limitation of the residence right in our "Civil Code",scholars’ theoretical support and the regulation of the "Civil Code" reservation system space,make the establishment of investment residence right in our country is feasible;The fourth part is the localization of investment residence.The localization of investment residence in our country is analyzed respectively from the security function and the investment function;The fifth part is the legislative prospect of the establishment of investment residence right in our country,and it adheres to the principle of prudent practice in legislation and puts forward some perfecting suggestions on investment residence right.