论居住权的类型及其司法适用

An analysis on the type of residence and its judicial application

居住权问题属于事实判断问题,社会实证方法是其最重要的研究方法。在司法实践中,涉及居住权的案件大致可分为拆迁安置型、公房租赁型、离婚帮助型、家庭亲属型四种类型。因法律的缺失,居住权事实上成为司法创设的一种权利,在适用中存在较大的争议,受法官自由裁量权影响较大。

The question of residence belongs to the judgment of facts and the social positivism is one of themost important research methods to study it. The cases relating to the residence in the judicial practice can be divided into four types, such as demolition resettlement type, public housing rental type, divorce helping type, and family and relative type. For the absence of legislation, the question of residence in fact becomes a right of judicial creation where exists many controversies in the judicial application and may be greatly affected by the judge＇ s discretion.