论民法典物权编中居住权的若干问题

Some Issues on the Residency Right in the Chapter of Property Rights in the Civil Code

居住权属于用益物权,也是具有人身属性的人役权。民法典物权编拟增加居住权制度回应社会的现实需求,值得肯定,租赁制度无法替代其制度功能。设立居住权能够完善住房保障体系,提升房屋的利用效率,有助于应对老龄化的挑战、保障拆迁安置住户的居住权益以及机关事业单位工作人员家庭成员的居住权,实现"住有所屋"的目标。民法典物权编草案(二审稿)准确界定了居住权的人役权属性,但相关规则过度地受到传统人役权的影响和限制,尤其是将居住权的设定限定为无偿,从而使该制度的作用被削弱。因此,有必要突破传统人役权的界限,对该制度进行必要的改造和重构。

The residency right belongs to usufruct and it is also the personal servitude with personal attributes. The chapter of property rights in the Civil Code has prepared for adding the real servitude system in response to the real needs in society which deserve a mention, because the renting system cannot replace the function of renting. The establishment of the residency right benefits to achieving the objective of" residents having life" and promotes the use of housing. It is also an important system for improving housing security, helping to address the challenges of the aging population and meeting the housing needs of relocated households and family members of the staff from government agencies and institutions. The draft of the Civil Code’s property chapter(the second draft) accurately defines the personal attributes of the right to residency, but the relevant rules are excessively influenced and limited by the traditional one, especially defines unpaid residency rights making the effects of the system reduced. Therefore, it must break down barriers of traditional personal servitude and make transformation and reconstruction.