居住权制度的理性思考
发布时间：2019-06-25 17:01
【摘要】：以使用他人房屋为居住目的的居住权发端于罗马法中的人役权制度,并为大多数大陆法系国家所继受,英、美等普通法系国家也通过有关判例对离婚后的居住权予以规定。然而,同属于大陆法系的日本和中国台湾地区在西法东渐过程中,用益权却“消失”了,居住权更是不见踪影。我国的《民法通则》和《婚姻法》也未见有居住权的规定,其概念仅存在于离婚判例的司法实践中,可以说,在中国它还是一种新型的民事权利。2002年12月由全国人大法工委编撰公布的《中国物权法征求意见稿》首次规定了居住权制度,引起了学者的热烈讨论,但对于最终是否应设置居住权,学界却众说纷芸。 本文全面考察了国外有关居住权的法律规定与判例,剖析了居住权的概念及法律特征。依据严格区分物权与债权的观念,对居住权与租赁权、借用权进行了比较研究,彰显了居住权的独立意义。分析了在我国现实情况下,规定居住权制度的必要性与可行性。在参考、借鉴与吸收国外居住权的立法成果与离婚时婚姻住宅处理经验的基础上,结合我国的国情,对居住权制度的立法体例及居住权的取得、消灭、主体、客体、内容等具体制度的建构作了详细的探讨,提出了自己的见解。同时呼吁,我国应抓住正在起草民法典与制定物权法的大好时机,在未来民法典和物权法中明确规定居住权制度。 本文由序言、正文、结语组成,正文由居住权的渊源及立法现状、居住权的概念和法律特征、我国设立居住权制度的必要性与可行性、我国居住权制度的立法体例与制度构建四个部分组成。其中,正文第二部分和第四部分是本文的主体部分。 在序言中,就本文的背景作了概括性的介绍。 正文第一部分居住权的渊源及立法现状考察了罗马法、大陆法系诸国及英美两国的居住权制度,介绍了国外居住权制度成功有益的经验,以此作为我国居住权制度构建的理论基础。认为东亚一些国家和地区没有规定居住权制度的主要原因如下:一是各国规定的用益权都与养老有关,而养老问题在东方社会主要由家庭成员负担,使得这种主要以养老、离婚或丧偶而设计的居住权暂无存在的必要;二是居住权本身存在弊端,如不关心物的改良、转让等;三是这些国家和地区认为居住权可由自创债权予以替
[Abstract]:The right of residence for the purpose of using other people's houses originated from the system of personal servitude in Roman law, and was continued by most civil law countries. Common law countries such as Britain and the United States also stipulated the right of residence after divorce through relevant precedents. However, both Japan and Taiwan, which belong to the civil law system, lost their interest rights in the process of the gradual spread of law from the West to the East, and the right of abode disappeared. There are no provisions on the right of residence in the General principles of Civil Law and the Law on Marriage in our country, and its concept only exists in the judicial practice of divorce cases. It can be said that it is still a new type of civil right in China. The draft of soliciting opinions of China property Law, compiled and published by the legal work Committee of the National people's Congress in December 2002, first stipulated the right of residence system, which aroused heated discussion among scholars, but whether the right of residence should be set up in the end. The academic community, however, has a lot of talk. This paper makes a comprehensive investigation of the legal provisions and precedents of the right of residence in foreign countries, and analyzes the concept and legal characteristics of the right of residence. According to the concept of strictly distinguishing real right from creditor's right, this paper makes a comparative study on the right of residence, the right of lease and the right of borrowing, which shows the independent significance of the right of residence. This paper analyzes the necessity and feasibility of prescribing the residence right system in the reality of our country. On the basis of referring to, drawing lessons from and absorbing the legislative achievements of foreign residence rights and the experience of marital housing treatment in divorce, combined with the national conditions of our country, this paper probes into the legislative style of the residence right system and the construction of the specific systems such as the acquisition, elimination, subject, object and content of the residence right system, and puts forward some opinions. At the same time, it is called for that our country should seize the good opportunity of drafting the civil code and formulating the property law, and clearly stipulate the residence right system in the future civil code and property law. This paper is composed of preface, main body and conclusion. The text consists of four parts: the origin and legislative status of the right of residence, the concept and legal characteristics of the right of residence, the necessity and feasibility of establishing the right of residence system in our country, and the legislative style and system construction of the right of residence system in our country. Among them, the second part and the fourth part of the text are the main part of this paper. In the preface, the background of this paper is briefly introduced. The first part of the text examines the origin and legislative status of the right of residence in Roman law, civil law countries and the United States, and introduces the successful and beneficial experience of the right of residence system in foreign countries, which is used as the theoretical basis for the construction of the right of residence system in our country. It is considered that the main reasons why some countries and regions in East Asia do not stipulate the residence right system are as follows: first, the beneficial rights stipulated by various countries are related to providing for the aged, and the pension problem is mainly borne by family members in the eastern society, which makes it unnecessary for this kind of residence right, which is mainly designed to provide for the aged, divorce or widowhood, second, the right of residence itself has drawbacks, such as not concerned with the improvement of things, transfer, and so on. Third, these countries and regions think that the right of residence can be replaced by their own claims.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D913
本文编号：2505846
[Abstract]:The right of residence for the purpose of using other people's houses originated from the system of personal servitude in Roman law, and was continued by most civil law countries. Common law countries such as Britain and the United States also stipulated the right of residence after divorce through relevant precedents. However, both Japan and Taiwan, which belong to the civil law system, lost their interest rights in the process of the gradual spread of law from the West to the East, and the right of abode disappeared. There are no provisions on the right of residence in the General principles of Civil Law and the Law on Marriage in our country, and its concept only exists in the judicial practice of divorce cases. It can be said that it is still a new type of civil right in China. The draft of soliciting opinions of China property Law, compiled and published by the legal work Committee of the National people's Congress in December 2002, first stipulated the right of residence system, which aroused heated discussion among scholars, but whether the right of residence should be set up in the end. The academic community, however, has a lot of talk. This paper makes a comprehensive investigation of the legal provisions and precedents of the right of residence in foreign countries, and analyzes the concept and legal characteristics of the right of residence. According to the concept of strictly distinguishing real right from creditor's right, this paper makes a comparative study on the right of residence, the right of lease and the right of borrowing, which shows the independent significance of the right of residence. This paper analyzes the necessity and feasibility of prescribing the residence right system in the reality of our country. On the basis of referring to, drawing lessons from and absorbing the legislative achievements of foreign residence rights and the experience of marital housing treatment in divorce, combined with the national conditions of our country, this paper probes into the legislative style of the residence right system and the construction of the specific systems such as the acquisition, elimination, subject, object and content of the residence right system, and puts forward some opinions. At the same time, it is called for that our country should seize the good opportunity of drafting the civil code and formulating the property law, and clearly stipulate the residence right system in the future civil code and property law. This paper is composed of preface, main body and conclusion. The text consists of four parts: the origin and legislative status of the right of residence, the concept and legal characteristics of the right of residence, the necessity and feasibility of establishing the right of residence system in our country, and the legislative style and system construction of the right of residence system in our country. Among them, the second part and the fourth part of the text are the main part of this paper. In the preface, the background of this paper is briefly introduced. The first part of the text examines the origin and legislative status of the right of residence in Roman law, civil law countries and the United States, and introduces the successful and beneficial experience of the right of residence system in foreign countries, which is used as the theoretical basis for the construction of the right of residence system in our country. It is considered that the main reasons why some countries and regions in East Asia do not stipulate the residence right system are as follows: first, the beneficial rights stipulated by various countries are related to providing for the aged, and the pension problem is mainly borne by family members in the eastern society, which makes it unnecessary for this kind of residence right, which is mainly designed to provide for the aged, divorce or widowhood, second, the right of residence itself has drawbacks, such as not concerned with the improvement of things, transfer, and so on. Third, these countries and regions think that the right of residence can be replaced by their own claims.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D913
【引证文献】
相关博士学位论文 前1条
1 李允;中国大都市保障性住房政策实施的困境与出路分析[D];吉林大学;2012年
相关硕士学位论文 前2条
1 高蕾;对我国设立居住权制度的思考[D];华东政法大学;2010年
2 郭士丽;我国居住权制度研究[D];华东政法学院;2006年
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