论居住权从身份性权利到契约性权利的变化——从罗马法到法、德民法

The Right of Inhabitation Changed From the Right of Paternity to the Contractual Rights——From Roman Law to France Civil Law and Germen Civil Law

本文通过对西方国家居住权制度历史沿革的考察,发现居住权制度在演进的过程中,抛弃了原有的身份性权利的性质,而转变为一种契约性权利;其制度的功能也从原有的弱者保障拓展到促进财富流转、增强物之效用。基于此,居住权在法、德等国长盛不衰,且其形式趋于多样。我国学者对居住权的理解,有一定的偏差,对居住权之价值认识不全面,对居住权的形式的理解也较为僵化。缘于此种局限,居住权制度在《物权法》中消失了。作者故撰此文,以对居住权制度有更为深入的认识。

The Right of Inhabitation no longer exists in China＇s Property law, but it doesnt mean that the Right of Inhabitation is meaningless to our country. The article begins with the history of the right of inhabitation. It analyzes the change of the structure and functions of the right of inhabitation from the Roman law to the France civil law and Germcn civil law in detail and reaches a conclusion that the right of inhabitation has changed from the right of paternity to the contractual right. The right of inhabitation of （Napoleonic Civil Code）and German civil law is a kind of modem right of inhabitation. The author supposes the right of inhabita- tion is necessary for our country, therefore, we shouldnt abandon the right of inhabitation and in fact we need to found modem right of inhabitation. China＇s Property law does not build the right of inhabitation because only the function of protecting the weakness was concerned. So, the author writes this thesis to make a overall investigation about the Right of Inhabitation