解释论视角下的居住权客体

A Hermeneutic Interpretation of the Objects of the Rights to Habitation

我国民法典第366条将居住权客体规定为"他人的住宅"。在现行房地产法律和政策下,我国存在着不同类型、不同功能的住房。从解释论的视角,借鉴域外立法例,探讨这些住房上可否设定居住权,将有助于明晰居住权制度的适用范围,促进其功能发挥。对于普通商品住房、取得完全产权的政策性住房,所有权人依法享有处分权能,可设立居住权;政策允许的、符合条件可转让用于居住的商务公寓、服务型公寓、酒店式公寓,可设定居住权;已出租或抵押的住宅不需承租人或抵押权人同意,所有权人也可在其上设立居住权;政策性住房、被查封住宅在通常情况下不得设定居住权;住宅的附属设施可以依约或依必要成为居住权的客体,设立居住权之住宅一部分不是居住权的客体。

According to Article 366 of the Civil Code of PRC,the object of the right to habitation is defined as"the dwelling of others."As a variety of housings exist with different types and functions according to the current Chinese housing laws and policies,the exploration into whether the right to habitation can be created on these housings,from the perspective of hermeneutics and by drawing on overseas legislation as well,will clarify the scope for application and help to fulfill the function of such right.After a close analysis,it is found that the right to habitation can be created on the ordinary commercial housing and low-income housing that has gained full ownership,since the owners are entitled to full disposal capacity.It too can be created on the business apartments,service apartments and hotel apartments that can be converted for residential purposes and thus transferrable according to related policies.It can also be created on the housing rent or mortgaged without the consent of the leasees or the mortgagees.But it is not allowed to create it on the low-income housing without full ownership and on the forfeited housing.The accessory facilities of the housing,by contract or necessity,may become the object of the right to habitation,and when the right to habitation is created on a part of the housing,then the whole rather than the part is the object of right.