China's Property Law of the need to establish residency

[Abstract] residence from the Civil Law countries of the provisions of the Civil Code, we can see that the main purpose of the establishment of residency in order to solve the residence after the divorce no one husband or wife, the elderly, as the representative of the nanny the housing problem of a class of groups, this traditional residence is that some scholars called the Society of residence. In addition, with the development of society, the scope of residency should be expanded, and a breakthrough, right of residence also In addition to the field of marriage and family, in the general area of the property use and investment to play its role. Article uses economics, sociology and comparative Research methods and other comprehensive and in-depth property Law in China demonstrated the need to establish residency.

[Keywords:] residence property Law the need for social housing rights

First, the practical needs of

Whether the establishment of residency in our real needs, which is our legal system transplanted residency must first question to be answered only in an objective, in practice the existence of such residence a number of issues that need to be addressed in the legal system, only transplantation is necessary, if the objective is not this demand, there is no need to introduce such a system, no doubt this is a basic proposition. from Civil Law countries in the Civil Code provisions on the right of residence, we can see, right of residence The main purpose of the establishment is to solve the residence after the divorce no one husband or wife, the elderly, the nanny of a class of groups represented by the housing problem, the traditional right of residence by some scholars as social right of residence; In addition, with the development of society, the scope of residency should be expanded and a breakthrough can also be in residence outside the field of marriage and family, use of and investment in the general area of the property to play its role.

1. No ownership after a divorce one's housing problem of the three categories
After the divorce the husband or wife no accommodation pArty to the housing problem. Let us look at an example: in February 1989 and Sun Qian Tang Kim was married and living in Xining City, Fourth Street, Room 308, Unit 3, Building 82, the use of area of 28.58 square meters, the DepArtment of Xining City Houses Xinghai all Zhiguangongfang .1994 May, because of emotional discord, Sun Qian and Deng Jian west by the District People's Court in Xining City, the divorce mediation, child custody by Tang Jian. But At that time the pArties have not filed Lawsuits against the rental public housing, and the courts no treatment. After the divorce, the original rental housing by the Tang Kim has been living with their children. but Sun Qian unit has been unable to resolve to its housing, and The economic situation is not ideal, and therefore, its September 1994 to the west of Xining City District People's Court proceedings, to beg for their residence Tang Kim.

In real life, and have the same Sun Qian, who suffered not a minority. On the Marriage Law of China mentioned in the judicial interpretation given no home after the divorce pArty's "residency" is not a right of residence on the property law sense, The effective solution is not the housing problems of these people. And Habitation can be no home after the divorce that the party long-term, stable living in each other's houses to provide a legal basis.

The housing problem of the elderly. In real life, the elderly housing occupied by others, are common occurrences. Some experts pointed out: the current elderly housing rights violations are the following forms: (1) housing reform process, the children of funding living for the elderly have the right to purchase the housing after use, and then against the right of residence for the elderly; (2) children without permission will move into elderly housing account, the unauthorized change the head of household and property (lease) who occupied the elderly real estate; (3) with to live in order to support, care for elderly people living in the name of the agreement by the elderly, abandonment, abuse of the elderly; (4) The distribution of children living together, buying homes, still occupied housing deliberately affect the elderly the right to dispose of the property. there are some people more than the same time using several methods to achieve the purpose of housing rights occupied the elderly. In addition, the phenomenon of Chinese cities more and more elderly people living together, they do not register the marriage, in this case, one death, survival the other party and can not inherit each other's heritage. On the contrary, the death of one of the children are inheritance rights, if the death of one party to the survival of children not to live, the person may be displaced. But if the law stipulates the right of residence from one party to bequest by will or can also be obtained in accordance with the contractual right of abode, both to address the housing needs of family members, but also conducive to truly safeguard the interests of older persons to reduce the dispute in this regard.

Nanny of the housing problem. I think that, first, from a development point of view, along with social progress, economic development, general improvement of living standard and the accelerated pace of life, afford a nanny and need to hire people who will more and more, the market will be growing nanny, nanny that the housing problem will become increasingly prominent, and therefore the establishment of residence to solve the housing problem of the need for nanny will be more prominent. Secondly, Mr Liang referred "nanny" was in fact not just refer to nannies, but only on behalf of a class of people only. As some scholars have understood, where the "nanny" is representative of all housing properties has some non-immediate family members the relationship between a group of people living, such as distant relatives, shelter the homeless children, living alone, etc., and if so to understand the "nanny" meaning, then residence or has a broad legislative basis of public opinion.

2. Residence for the expansion of the scope of
From the origin point of view, the sense of residence emerged from Roman law of marriage and family areas and as part of personal servitude, play a major function of pension and relief, which has a physical nature, helping nature and duration of non-flow characteristics such as . Civil law countries, the major inherited the tradition of Roman law, most provisions in the Civil Code of the residence system, but due to political, economic, and cultural background differences, most countries did not fully copy the Roman law on tenure system, but in the traditional residence system increases with the content development of the times to adapt to meet the needs of modern commodity economy and society, especially in Germany, distinctive and representative legislative tenure, and its addition to the provisions of the Civil Code the traditional right of residence, but also its special civil law provides for a different social function, with a circulation of new residency form - long-term residence, because of their income is often used as a real estate investment and technology, makes the right of residence in this area is greatly weakened the ethical, legal technology, flexibility, and as is very prominent, so some scholars have said so on the right of residence as "investment residence." Dr. satellite applications, residency is the investment residence in the new era under a continuation of the evolution of its vitality, but also the social function of residence has been extended. because of its greater flexibility and adaptability of technology to meet the people use the formal property the diversity of needs, to better implement the right of the human will. in building a joint venture, joint purchase, timeshare hotel and so on, if allowed to set the investment tenure, increasing investment opportunities for people to choose the type of property and space, better results.

From the above analysis we can see in real life tenure system has not a minority subject and popular demand. As the scarcity of resources, very difficult to meet all the general, just with the ownership of the system to meet the use of real property requirement is impractical, especially in population and land area of China's national conditions and more limited economic analysis of law requires us to the point of view, to achieve maximum utilization of housing, and establish residency, you can achieve this goal.


Second, the need to adapt to the development of property law

From all to use. The traditional civil law system based on property ownership as the center. Property Law in the balance, regulating the scarcity of material resources, material resources and people on the contradiction between the needs and desires, the main is to determine the ownership of resources For the ownership and use of human relations, but nevertheless, "human non-use of outside material, you can not live, but supplies are limited, not inexhaustible, consequent regardless of any community, there must be a system to recognize the right to direct use of outside material (broadly defined property rights), leaving the non-aggression, to safeguard the use of the exact materials and security, namely, the social role of property rights have been, it is the first property is indeed a developed legal system of it. "Therefore, the legal protection of rights as enjoyed by means of specific interests, according to social and economic conditions, changes in the property has all the (vested) interests be fully protected, based on the re-emphasis on the use of property interests protection, to achieve the best use of social justice, thus contributing to a certain extent, limited ownership, improve the usufruct and other rights of position, enhance its effectiveness. The fact that the Property Law of the development process does exist, because "property (including intellectual property) is not only the expression of a 'have' well-being, or is the 'spirit of the occasion of' happiness, but also on the property, 'use' and have some happiness", "property on our already own property and are not just a question of happiness. "if only to confirm ownership of the property with the ownership and use is not enough, must also be used in addition to the usufructuary right of ownership right over the property to confirm that people relationship between the use of materials. In particular, the development of modern science and technology, methods for increasing the use of materials, the use of increasingly high, which makes the non-owner of such rights through the form of usufruct of all things to others use to meet their own survival and development of not only become necessary and possible. property law is to provide a major country and his people for the property relations. for the property relations, manifested in two aspects: on the one hand, this society's all property belongs to whom, what the people can enjoy the property. This is the ownership relationship. On the other hand, enjoyment of property (including state, collective and individual) belonging to "his" property, what rights exactly, the content of these rights what it is. in the relationship between these two aspects, China attaches great importance to the past for the former, but the latter do not attach great importance, so there are some problems. China's socialist market economy requires focus on the establishment and improvement of the property law ownership and use of role of both, which must be included in the Property Law which enrich his usufruct property rights, including the content. With the changes in social relations of production, ownership separation of its power, is the inexorable law of historical development, and establish and improve the use of interest property rights system, but also high degree of economic development imperative. Links http://www.hi138.com Research Papers Download From land to housing. In the use of human material to the outside world in order to land and housing as the main form of property, especially land occupied a particularly important role. To the east of the country or region on behalf of the agricultural economy and society of feudal society has experienced perfect form of development, the traditional emphasis on land use rather than use for housing is more lightly. But with the development of commodity economy in China, especially considering the large population of China as a country's circumstances, reasonable to solve the housing problem, it should is the basic goal of China's property law. The world urban population by 17 million per day in growth to reach 5.0 billion by 2025, the total population of 2 / 3. mankind will face the problem of how to cope with the enormous challenge of their own living. In China, economic reform, the housing allocation from the past into a paid free access, the development of productive forces, to provide housing for a large number of people possible, but because of the scarcity of material to be produced is a necessary property, housing as an important property, its construction cost is very high, so especially for those women, the elderly and other vulnerable groups, want to have a home of their own is not easy. Habitation you can solve these problems. residency can get maximum utilization of housing, to maximize efficiency; to a good balance between home ownership and housing rights of people of interest, to play its home security functions.

China's existing laws, is the ownership and leasing, borrowing (with borrowing) to adjust the non-owner relationship to others the use of housing, did not confirm residency or in connection with similar property of rights. Although the right of the Housing Code in China is a right to judicial protection, but in China <<Civil Code "> and other laws do not provide for the right of the Code, the property law of this re-orientation of land has always been light housing criticized by scholars. From China's social development status and development trends, property law in China should recognize the right of residence in the form of his property.


Third, the need Numerus

Property legal doctrine, its meaning and content of that type of property and other laws and unified by civil identification, does not allow parties and the meaning of the creation of their own freedom, to change. Summons of right to the civil legislation, in particular the legislation of the basic requirements of property is the type of property defined by law, rights holders can enjoy all kinds of real content, at least the basic aspects of these rights must be made clear by the mandatory provisions of law. In addition, the parties concerned, the legal principle property the behavior of the parties puts forward the basic requirement that the parties can only be prescribed by law, property type and content of the exercise of property rights and property rights for the relevant legal acts, such as the establishment, transfer, change or destroy property rights and so on. If the parties the establishment of a property, the law can only set up some type of clearly defined property rights. If the law provides for no right of residence, then there is the practice of law for this problem can not be adjusted. For example, the Supreme People's Court on the judicial interpretation of the Marriage Law (a) Article 27 provides: "the time of divorce, one party to personal property of the housing difficulties of life to help those in the form of residency or ownership can be a house." But there is only judicial interpretation, the effect was significantly lower than the NPC and the Standing Committee formulated the basic law, and, in the legal provisions in our legislation, has not yet appeared, "residence" of the word, it highlights the right of residence here, a bit of a coin too. In addition, "<Shanghai elderly Rights Protection Act>> also provides the elderly with their children or other relatives of co-financing the purchase, construction of housing, older persons legally entitled to the corresponding home ownership and residency, there is also facing the same problem : This Ordinance and the legal basis for the effectiveness of the problem. I believe that the only property law in China, established residency before they can effectively solve these problems. as ponderosa a judge said: "The property law is the person to adjust the use of materials scope, the scope of this right is recognized, a way of life of people involved, therefore, property law also should be close to our real life. in which property law, this right is recognized right of residence is the quality of property law should have a reflect. "

References:
[1] application satellites. Vision to expand and function of conversion: the necessity of the establishment of Habitation Multiple Perspectives. China Law, 2005, (5).

[2] Xining City Intermediate People's Court February 27, 1995 hearing of a case, the data source: http://www.jtsgzx.com/fc-fca1044.asp, 2006 �� 7 3rd.

[3] Yuan Zhengrong. Divorced women thought the protection of housing rights. Social Sciences Review, 2001.

[4] Guo Li days. On the tenure system is established. Law, 2005, (3).

[5] Research Group. Elderly living arrangements in old age - a street in Beijing Exploratory Research (B). Journal of Women's University, 2000, (6).

[6] Hu Zijing. The draft property law focus of debate in the comments. The Government law, 2005, (10).

[7] Professor Liang. Why am I not in favor of the provisions of "residence". Http://www.iolaw.org.cn/showar ticle.asp? Id = 1245,2006 on May 8.

[8] Zhu Caixia. Tenure system in China. Cangzhou Teachers College, 2005, (3).

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