On The Establishment Of A Testament For The Right Of Habitation

Article 371 of the Civil Code provides for the testamentary establishment of the right of habitation by referring to the relevant system of contractual establishment.This satisfies the testator’s desire to freely dispose of their property,safeguards the legitimate rights and interests of the owner of the right of habitation,and promotes the protection of the housing system.However,the design of this article overlooks the characteristics of testaments.The use of "a reference to the application" is too abstract and simple,and the legal framework is unbalanced under the binary parallel establishment model.This model does not align with the current situation of frequent disputes over the establishment of the right of habitation by testaments in judicial practice.Consequently,the law has low applicability,and its implementation effect is poor.It is necessary to conduct an in-depth study on the testamentary establishment of the right of habitation since there is a debate in the academic community on how to apply it.In this article,we conducted a study using literature analysis,comparative analysis,and case analysis.We argued that the testamentary establishment of the right of habitation is not directly applicable to the rules of contractual establishment due to the special nature of the testament itself.We also analyzed the current situation of the testamentary creation of the right of habitation and found problems such as the ambiguous scope of legal application,conflicting application of the rules of validity,rigid application of the rules of formal elements,and gaps in the rules of rights and obligations.Based on this analysis,we provided suggestions for improvement to make the system of testamentary creation of the right of habitation in China more reasonable and perfect.The main structure of this article consists of three parts,in addition to the introduction and conclusion.The first part begins with an explanation of the connotation of the testamentary establishment of the right of habitation.It explains the characteristics of creating a right of habitation through a will by comparing it with creating a contract and a will with obligations.It further explains the practical value of establishing a right of habitation through a will in safeguarding the interests of vulnerable groups,respecting the wishes of the deceased,and settling disputes,as well as the humanistic value in line with the historical origin of Roman law and traditional Chinese culture.The second part of the analysis examines the legislative,judicial,and enforcement aspects of establishing the right of habitation in China.It reveals that the establishment of this right is plagued by unbalanced legislative abstractions,inconsistent judicial applications,and immature enforcement procedures.Furthermore,it clarifies that the root cause of these problems is the lack of uniformity in the application of legislation that recognizes the testamentary creation of the right of habitation in China.The third part analyzes the main problems regarding the testamentary establishment of the right of habitation.It combines theoretical comparison and trial experience and attempts to unify the standards of application by referring to overseas rules.Firstly,it clarifies that the reference is not directly applicable,and it is necessary to expand the scope of application of the law on the testamentary establishment of the right of habitation by linking multiple codifications.Secondly,it is made clear that the testamentary establishment of the right of habitation is subject to a change in property rights from the beginning of inheritance.The division of the estate is not subject to registration as an element of validity,but it is recommended to register to protect the stability of the rights of the right of habitation.Furthermore,it is clarified that the testamentary establishment of the right of habitation is not limited to the written form,and it is sufficient that the formal elements of the testament are met based on the testamentary form.Finally,the principle of balancing interests clarifies the rights and obligations of the relevant subjects,including but not limited to the obligation of good management of the right of habitation and the obligation of the heirs to overhaul.The right of habitation does not bear the responsibility of debt settlement.Basic remedies and penalties are also provided,including the extinction of rights due to abuse of rights and the setting of an exclusion period for the exercise of rights,to guarantee the restoration of the heirs’ ownership rights intact.