民法典中居住权的适用探论

Explorations on the Application and Value of the Right of Residence in the Civil Code

《中华人民共和国民法典》中规定的居住权是对当今时代发展之回应。作为一种新型的用益物权,居住权不仅要注重其公私属性的开放式运用,也要达到各类私权利间的利益平衡。文章以居住权的功能意图作为出发点,对居住权的要件逐步分析,明确居住权设立的法律效力,参照租赁合同的立法规范厘清居住权与所有人、抵押权人、受让人的深层次关系;凭借居住权利用财产的特点,进一步发挥投资性居住权在私法领域的作用。

The right of residence provided in the Civil Code of the People’s Republic of China is a response to the development of today’s times. As a new type of usufruct right, the right of residence should not only focus on the open application of its public and private attributes, but also realize the balance of interests between various private rights. Taking the functional intention of the right of residence as the starting point, the article gradually analyzes the elements of the right of residence, identifies the legal effect of the establishment of the right of residence, and clarifies the deep relationship between the right of residence and the owner, mortgagee and assignee in conjunction with the legislative regulation of the lease contract. By virtue of the use of property by the right of residence, the role of the investment right of residence in the field of private law is further developed.