Necessity of establishing residence right system in China's property law

On June 26th, 2005, the 16th meeting of the 10th the National People's Congress Standing Committee (NPCSC) was divided into six groups to consider the draft property law. This is the second time that members of the current Standing Committee have deliberated on this important draft law which concerns the vital interests of the people of the whole country. It is generally believed that the third draft of the property law has absorbed the opinions put forward by the members of the last meeting and the opinions put forward by experts, scholars and relevant parties, and has been well revised and improved. This revision highlights the key points and makes clear provisions on several key issues, which is concise and easy to understand. At the same time, members put forward opinions on further revising and perfecting the draft property law. There are about ten hot issues, among which the necessity of the right of abode system is one of the hot issues.

Second, an overview of the right of residence system

The right of residence originally originated from the personal servitude in Roman law. The so-called personal servitude is a concept corresponding to easement, which refers to the right to use other people for the benefit of a specific person. The easement in Roman law includes usufructuary right, right to use, right to live and right to use slave animals. In Roman law, the right of residence refers to the right of non-owners to live in other people's houses. The original intention of establishing this system is that with the increasing number of marriages without husband's rights and the liberation of slaves, the life of those who have no inheritance rights, lack or lose the ability to work becomes a problem every time their parents die. Therefore, husbands and householders will bequeath part of their property use rights and income rights to their wives or freed slaves, so that they can live and support themselves when they are old. [ 1]

Both the French Civil Code and the German Civil Code stipulate the system of residence right. The French Civil Code completely transplanted the dual structure system of servitude and easement in Roman law, and set up a special chapter to stipulate usufruct, use right and residence right in the second volume "Various changes of property and ownership". The right of use is defined as a usufructuary right, while the right of residence is a right of use, which is limited to the necessary residence of the beneficiary and his family. Therefore, the right of residence is also called "small right of use", and the rules of the right of use are basically applicable.

The German Civil Code stipulates the easement in the fifth chapter of the third part, which is divided into three types: easement, usufructuary right and restricted easement. The so-called usufructuary right refers to the right to use other people's things (including rights) and collect income, which can be exercised by others, but cannot be transferred or inherited. Usufructural rights are divided into three types, namely, usufructuary rights in things, usufructuary rights in rights and usufructuary rights in property, and they are restricted. Among the limited easements, the most important one is the right of residence; Article 1093 of the Code specifically stipulates: "A building or a part of a building is regarded as the right to exclude all people's houses, or it can be set as a limited easement." [2] This is the right of residence.

Comparing the legislation of Roman law with that of modern countries, the residence right system in the civil code has the following characteristics: (1) The structure and arrangement are basically the same, the division between easement and easement is recognized first, and then the residence right is regarded as a kind of easement, which is stipulated after the usufruct (or right to use); (2) Based on the personal nature of the right of residence, the design of rights and obligations mostly follows the provisions of Roman law, such as no transfer or inheritance, no lease in principle, etc. , leading to the closure and non-transferability of the right of residence. (3) The function is similar, which is mainly applicable to the following situations: selling houses that reserve the right of residence for their own pension; In order to realize maintenance and support, the right of residence and the right of residence of the surviving spouse are reserved. But in any case, the right of residence is only related to daily and family life, and it has the nature of personal and social security, but it is different in different countries. [3][ Page]

At present, the use of the word "right of residence" in China is rather confusing: some people use the right of residence in the sense of human rights and think that the right of residence is a kind of human rights, which together with the right to life and security constitutes socialist human rights; Some people know the right of residence from the aspect of social security system. For example, many countries implement the minimum housing security policy and the low rent system of public housing to protect the basic right of residence of low-income people, which shows that the right of residence is a social security and welfare system. Some regard the right of residence as the concept equivalent to the right of migration from the perspective of canceling the differential treatment of household registration system and protecting farmers' right of residence in cities and towns; Some confuse the right of residence with the right of lease; Some people interpret the right of residence as the right of residence in international immigration law. [4] The right of residence in property law is still a relatively unfamiliar concept in China. The draft property law of our country defines the right of residence as follows: it is the right to occupy and use the houses owned by others and their ancillary facilities. Although the draft property law has been revised for many times and the right of abode system has been controversial, the right of abode system has not been deleted, and the terms involved have increased, which shows that legislators favor this new system.

Third, is it necessary to set up a residence right system in China's property law?

Yao Hong, director of the Civil Law Office of the National People's Congress Standing Committee (NPCSC) Law Committee, said that during the drafting of the draft property law, Jiang Ping, a professor at China University of Political Science and Law, raised the issue of residency. He said that there is an old nanny in his family, and he thought that there are many old nannies in the city at present. If the old employer who hired them dies, the next generation will probably not continue to hire them, so the old nanny will have no place to live. Therefore, Jiang Ping proposed that the right of residence should be established in the Property Law to ensure that the old nanny can continue to live in the original employer's house for free until her death. The draft property law absorbed Jiang Ping's point of view and wrote the system of residence right into the draft. Dr. Huang Songyou, vice president of the Supreme People's Court, also believes that China urgently needs to establish the right of residence in the property law, which is also determined by the principle of statutory property rights.

However, there are also many scholars who hold negative views that the right of abode system can not play its due role in China's property law system and it is not necessary to set up this system. The main reasons are as follows:

First of all, compared with the traditional usufructuary right, the right of residence has its particularity. Its function spans property law, marriage and family law and social security law, even more obvious in marriage and family law and social security law than in property law. Since marriage law and social security law can solve the problem, there is no need to occupy the space of property law to stipulate it, and the establishment of residence right may cause conflicts with marriage and family law and social security law.

Second, the right of residence may hinder the normal economic efficiency of the house. Because once the right to live in a house is established, its term will generally be very long, and the owner's ownership is actually an empty right, that is, it can't be occupied, used or guaranteed, so no one may want to buy or rent this house. Therefore, the establishment of the right of residence is actually at the expense of the mobility of the house, which will inevitably hinder the normal economic efficiency of the house. [Page]

Thirdly, the right of residence is not suitable for the national conditions of China, and it is too expensive to set up a separate system in the property law for the benefit of a few people. The main purpose of the right of residence is to provide for the aged. Our country has always had the traditional virtue of family members helping each other and supporting the elderly, which has been stipulated in the marriage law and inheritance law, and it is not necessary to repeat it in the property law. Some people put forward the right of residence in order to pay attention to the rights and interests of nannies, but in China, there are not many nannies, and nannies generally have their own families and houses. It seems unnecessary to stipulate the right of residence for this particular group in the property law. The protection of nanny's rights and interests can be achieved through other channels.

However, based on the realistic needs of social life in China at this stage and the unique property right that other systems can't replace, it is imperative to establish the system of residence right in the property law:

First of all, the right of residence provides a legal guarantee for protecting people's basic housing rights. With the rapid development of China's economy, the disparity between the rich and the poor is getting worse and worse, and house prices are soaring. A large number of rural people flock to cities, which makes the urban population over-concentrated. As a result, some houses are so well-off that few people live in them. But there are also some people who can't afford to buy a house or rent a house, belonging to vulnerable groups or special groups. They also enjoy the right to housing. The establishment of the right of residence system provides a realistic and possible choice for those who can't afford to buy a house or rent a house to enjoy the long-term and stable right of residence, and it is guaranteed by law.

Second, the right of residence is conducive to the maximum utilization or use of houses. In modern society, the first principle of property is to maximize value. In other words, the house, as a kind of real estate, should maximize its utility from the perspective of economic analysis law. Utility is a factor that must be considered in legislation, judicature and people's real right behavior. Establishing the right of residence can achieve this goal. Moreover, the establishment of residence right can better distribute property ownership and property use right. The establishment of residence right optimizes the allocation of property ownership and property use right, which is the ideal allocation of social wealth ownership and use right.

Third, the establishment of the right of residence is also determined by the legal principle of real right. Whether the right of residence should be incorporated into legislation cannot be simply considered from the cost. More importantly, it is a right, the protection of which can not be ignored, and legislation can not be delayed because it only involves the interests of a few people.

Common sense in life tells us that the water capacity of a barrel ultimately depends on the height of the shortest board. Similarly, to measure the degree of rights protection in a society, to some extent, it is not how many rights have been confirmed by legislation, but how many rights have not been confirmed; It is not the degree of protection of the rights of the majority, but the degree of protection of the rights of those minority groups in society. With the analysis of "barrel theory", the rights of vulnerable groups constitute the "shortest plank" for the protection of social rights. From this point of view, it is an inevitable requirement to incorporate the right of residence into the property law to enhance the "ability" of the whole social rights, whether it is the content of rights or the subject of rights. [Page]

Fourth, the right of residence has different functions from house leasing. The establishment of the right of residence can take effect because of legal provisions or agreements, and must be combined with registration. After it takes effect, it has the effect of real right against a third party. The term of this right is long-term, generally for the life of the obligee. Although housing lease also has some property rights, the term is relatively short, which can not provide long-term and stable protection for the obligee. More importantly, the right of residence is generally free, which is mainly set up to help the weak and solve family problems, while the house lease is set up based on a two-service paid contract and does not have the function of helping the weak. In addition, conditional sale can't make the seller give up the ownership and reserve the right of residence for himself. The contract concluded due to conditional sale is not publicized, but only has the effect of debt, and the attached conditions cannot be used against a bona fide third party. Transferring ownership to others on the condition of maintaining the right of residence is subordinate to the contract of creditor's rights, so the established right of residence can only be effective to the other party, but not to the bona fide third party.

Fifth, the establishment of the right of residence system can better solve the housing problem of the temporarily homeless party after divorce. With the rapid development of economy, the increase of employment opportunities, the equality of social status of men and women, the dependence of husband and wife in family members is weakened, and their independence is obviously enhanced. The infiltration of western ideas and the weakening of traditional family values have also made modern family relations unstable, and the number and frequency of divorce cases have greatly increased. After divorce, one spouse usually has no room to live in. In the past, China's judicial practice mainly solved such problems by applying Article 27 of the Interpretation of the Supreme Court on Several Issues Concerning the Application of Marriage Law (I), that is, the divorced spouse has the right to live in the original house. However, the effectiveness of judicial interpretation is weaker than that stipulated in the Basic Law. Only by stipulating the right of residence in the property law can we better provide sufficient legal basis for solving this problem, better define the rights and obligations of both the owner and the right of residence, and reduce disputes.

Sixth, the establishment of residence right can fully respect the will and desire of property owners and coordinate family interests. The owner of the house can establish the right of residence for others through wills, bequests and contracts, and leave the ownership to the legal heir. Leaving the property ownership to the younger generation and the right of residence to the spouse is not only in line with the traditional concept of China people passing on their houses to future generations, but also takes into account the interests of all parties in the family and achieves the purpose of coordinating family interests. [3]

Of course, while affirming the necessity of establishing the right of abode system, we must seriously consider the problems related to the legal system (that is, whether the right of abode system can be integrated into the framework of the existing system), the coordination of interests between the right of abode and the owner, and the connection between the common law rules and the special law rules.

Four. Conclusion:

It is necessary to establish the right of residence system in China's property law, but the rights and obligations between the owner of the house and the owner of the right of residence should be reasonably stipulated. Property law should make general provisions on the right of residence system, and its specific application should also be reflected in the special provisions of marriage law, inheritance law and real estate management law.