论住房的双重性质 基于家法则与契约自由原理的观察

On the Dual Properties of Housing An Observation Based on the Principle of Family and

在我国宪法与法律中,“房屋”是个财产性的概念,“住宅”与人格直接相关,是个人格性的概念。有一个自己的家,同时拥有一定的财产,是中国人民在不同历史时期为之奋斗的基本善,也是宪法上的人身权与财产权保护的对象。在计划年代,城镇居民的住房是以社会总产品为后盾并参照家法则配置的住宅;住房制度改革后,住房转而逐渐成为基于契约原理形成的房屋财产。家法则与契约自由原理形成双重可变的复杂关系。“房住不炒”是以人民为中心的住房理念,是恩格斯住房观的中国化。贯彻“房住不炒”,既要反对市场家庭化,也要反对家庭市场化。建设更好的市场需要对不完全契约进行修正,而家法则作为“隐秩序”,可以托庇在较好平衡了契约自由话语与公共服务属性的非商品化公租房合同之中。

In the context of China's constitution law and statutes,the term"housing"is a concept of property while the term"residence"is a term related directly to personality.Possessing a residence and a decent amount of property has been the basic good pursued by Chinese people throughout history.As a result,private residence and property are under constitutional protection via personal right and property right stipulated in the Constitution.In the period of planned economy,the housing of urban citizens was backed by gross social product and was distributed according to the"principles of family".After the reform of the housing system,houses were gradually transformed into real property,which is formed through the principle of contract.As a result,the principles of family and the principle of freedom of contract have formed an interactive relationship."Houses are for living in and not for speculative investment"is a people-centered ideal.It is the sinicization of the Engels's viewpoint concerning housing.To put into practice the policy of"houses are for living in and not for speculative investment",both the idea of"familizing the market"and the idea of "marketizing the family" should be rejected.The amendment to incomplete contracts is a necessity for establishing a better market.Principles of family as hidden norms can be borne in contracts for de-commodified public housing that well balance the freedom of contract and public services.