论《民法典》居住权于替代住宅上的存续

A Research on the Existence of the Right of Habitation on the Replacement Residence

基于居住权制度本身的“住有所居”和“意思自治”目的、用益物权体系构造上的一致性和实践中的减纷息争需要,居住权应在替代住宅上存续。实现路径上,存在物权回复说、物上代位说和重新设立请求权说。用益物权具备物上代位可能,先前无此主张乃因土地承包经营权、宅基地使用权皆为具有主体身份限制的土地用益物权。人役权立法例中,赋予居住权物上代位性也已比较普遍。因此,物上代位说更有助于实现社会生活的确定性、秩序性和保护居住权人权益。

The Civil Code prescribes the right of habitation in a special chapter,but it does not clarify whether the right of habitation should exist in the replacement residence when the original one is lost or expropriated.The right of habitation should exist in the replacement residence based on the goals of“meeting the housing needs of all people”and“autonomy of will”,the consistency of the system of usufruct rights,and the need to eliminate disputes in practice.On the realization path,there are three theories:the property right reply,the subrogation,and the re-establishment claim.Because the replacement residence is not the original,it is advisable to negate the theory of property rights reply first and weigh the rest of the theories.The rights of usufruct have the possibility of subrogation in material.There was no such claim before because the conventional usufruct on land contractual management right and the right to the use of curtilage are all rights of usufruct of land with subject status restrictions.In the legislation of personal servitude,the subrogation of the right of habitation has also become common.Compared with the theory of re-establishment claim,the theory of subrogation is more conducive to realizing the certainty and order of social life and protecting the rights and interests of the holders of the right of habitation.