我国物权法上确立居住权制度的若干问题与思考

Several Questions and Reflections on Establishment of Residing Right System in Chinese Law of Things

居住权制度的确立是我国物权立法的重大突破。我国物权法上的居住权应当指法定居住权,意定居住权应由债法调整。居住权是一种特殊的用益物权,法定性是其本质属性,但居住权的期限、权能等亦应当体现出适当的柔性。居住权的设立属于私事务,无需公权力的介入。

The establishment of residing right system is an important breakthrough in law relating to rights over things in our country. The residing right in law of things ought to refer to the statutory residing right while residing right by will should be regulated by the law loan. Residing right is a kind of special right inrem, of which being statutory is its nature. Nevertheless, duration and privileges of residing right should have appropriate flexibilities. The establishment of residing right is of private affairs, needing no engagement of public power.