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The legal structure of the right of habitation

2019-11-21 来源: 51Due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- The legal structure of the right of habitation,供大家参考学习,这篇论文讨论了居住权的法律构造。居住权制度起源于罗马法,对世界诸多国家立法影响颇深。目前,居住权的权利义务尚未明晰,对于居住权的认知仍局限于其保障性的权利属性,欠缺居住权人的处分权益,且不允许居住权的转让和继承,人为限制了其权利价值。居住权人对其所居房屋应有占有使用的权利,出于生活所需,居住权人可会同家庭成员和必要的服务人员一起居住。此外,居住权人亦应有收益权,最大限度的对房屋予以利用。与之相对,居住权人应负有编制财物清单和提供适当担保的义务,负担日常必要开支,居住权期限届满及时返还房屋,使房屋恢复至原来的状态。

The system of right of habitation originated from Roman law and has a deep influence on the legislation of many countries in the world. Our country "property law" did not adopt this system. Now the civil code of points "to stipulate right in property rights, its legislative confirmation will be beneficial to solve the problem of disadvantaged groups of housing, but for the right subject, object, content and other aspects have made clear and systematic regulation, the concrete manifestation is: the residency rights and obligations is not clear, the perception of residency is still confined to the rights of their social attribute, the lack of residency dispose of rights and interests of the people, and do not allow the assignment of the right and inheritance, for limiting the rights value. The occupant shall have the right to possess and use the premises in which he/she lives. For the purpose of living, the occupant may live together with family members and necessary service personnel. In addition, the occupant should also benefit from the right to maximize the use of the house. In contrast, the occupant shall have the obligation to compile the list of property and provide appropriate guarantee, bear the necessary daily expenses, and return the house to the original state in time upon expiration of the term of occupant right.

The right of habitation is the right of the non-owner to live in other people's houses. The right of habitation originated from Roman law. Later, with the revival of Roman law, the civil law countries represented by France, Germany and Italy and the common law countries represented by Britain and the United States all inherited the system to a certain extent. In institutes, the residency rules are accordingly "legatee enjoy the rights of life, can't transfer the residency or gift to others, residency is not for failing to exercise or personality reduction and elimination of people enjoy the right, to the transaction of the utilitarian, according to the opinion of the maldives, cutting release decision, allow them to live in which they can not only, but also can be rent to others". When the right of residence was first established, it was due to the protection of some family members who did not have the right of inheritance and needed care and care. Therefore, the right of residence was characterized by relatively obvious personal characteristics and could not be arbitrarily disposed of.

On the basis of inheriting the system of the right of habitation in Roman law, the civil law countries broke through the limitation that the right of habitation has only the nature of servitude and evolved the right of habitation with the nature of benefit. Among these countries, Germany's legislation on the right of residence has the most typical meaning, which stipulates two different kinds of right of residence, namely the regular right of residence in the German civil code and the long-term right of residence in the residential ownership law. The content of the traditional right of residence is stable and conservative, and inheritance and transfer are not allowed. For the latter, as long as both parties reach an agreement, the right to dispose of the right of residence, including the right to rent, is conducive to the play of its value and meet the requirements of economic development. In addition, France, Switzerland, Italy and other countries also conform to the trend of The Times, the use of usufructuary property rights and the right to live in the combination of the two legislative ways to achieve the maximum use of housing.

Compared with the civil law system, the common law system and the common law system have different historical origins and no mandatory legal requirements, so the right of habitation can exist independently and become a burden right in the form of special law. In the United States, the protection of the right of residence is mostly manifested in the case and law of marital residential partition. And the ownership problem of marriage residence, reach a consensus to the parties as a principle. When the two parties cannot form an effective agreement, the final ownership of the right to use the house is generally who has the custody of the children, who gets the house, and the time limit is for the children to grow up or the spouse remarries.

The right of habitation is also recorded in the universal declaration of human rights and the United Nations convention on economic, social and cultural rights. In view of this, countries take the protection of citizens' right of residence as the starting point, and most of them stipulate this right in the constitution or constitutional law. The constitution of the German democratic republic, adopted by Germany in 1986, for example, gives every citizen of the country the inviolable right to a house he or she owns or obtains from a family member who lives together. In addition, some countries put citizens' right of residence into administrative law departments. For example, the British housing act imposes strict requirements on Homeless housing support. The housing law of the United States stipulates the low-rent housing system to protect the housing rights of this group.

The draft of the property code has set up a chapter on the right of habitation, which contains four articles, including the establishment, registration, disposal and termination of the right of habitation. According to the draft, the right of habitation is the possession and use of a non-owner's house to meet the needs of life. The right of habitation is agreed by both parties and concluded in a written contract. Unless otherwise agreed, the right of habitation shall be extinguished upon the death of the occupant. However, no systematic provisions have been made on the subject, object and content of the right of habitation. The understanding of the right of habitation is still limited to the basic protection of rights, while there are no specific provisions on the right of disposition, and no transfer or inheritance is allowed, which artificially limits the value of the right. In view of the above system defects, this paper puts forward a concrete system construction scheme for the right of habitation.

The applicable subject object of the right of habitation only includes natural person. However, the use of housing by legal persons is for the purpose of profit management and is not necessary for living and living, so it is not included in the subject of right of residence. Moreover, the leasing system can provide sufficient operating requirements for legal persons. In addition, the scope of the subject of rights should be limited to close relatives and other family members supported by the owner of the house. Family members, who live together because of their rights or the provision of family services, should be included. Of course, for the purpose of protecting the weak, only the specific groups in vulnerable positions, such as nowhere to live or living in difficulties, can become the subject of the right of residence to safeguard their living rights. Along with the judicial practice, the disputes of residence rights are increasing, especially the public property right houses and investment houses. Therefore, people who are related to the ownership of houses should be included in the main body of the right of residence.

The right of habitation is based on the right to use the house owned by others, so its object is generally the part or all of the building owned by others, including the house, land and other appendages. This reflects the flexibility and adaptability of the right of residence compared with the general right of absence. Because the object of general property right can only be an independent thing, for a part of the thing can not establish property right, reflects the independence of its object. However, the right of habitation has its own characteristics different from other rights, which can be set up on the whole of the house, or the part of the house can be set up as the carrier. Considering that in real life there are still some cases in which the owner and the occupant share the same room, the object scope of the right of habitation needs to be further subdivided. Second, in order to maintain the rights and interests of the co-residents, and the related public property house without legal provisions, should be included in the object category of the right of habitation, agreed to set the right of habitation on the public property house.

On the premise of residence, the occupant has the exclusive right of possession and use of the house in which he lives, and is not subject to the interference of the third party and the owner. If the occupant wants to use the house, he must first take possession. In the face of others' hindrance to their rights, the occupant has the right to exclude the hindrance and protect himself. The use of housing by the occupants is necessary for survival. For the purpose of living, the occupant may live with family members if he/she moves into the house. In addition, the right to make full use of the housing, the right to use all kinds of ancillary buildings and equipment of the housing, attached to the housing of other rights can also be used. At the same time, the occupant shall not pay the use fee for the house, unless otherwise agreed by the parties.

As to whether the right of residence can be rented, there is a great controversy in the theoretical circle. However, through comparison, it can be seen that although the legal nature of transferring the right of residence and renting the house are different, the results obtained are similar. The point of view of this paper is that the reason why some countries strictly control the rent of the residence of the occupant is that the systematic division standard of concept avoids the whole dispersion of servitude. Because in the civil code, these countries include content of system of personal servitude is more, not only have a residency, and usufructuary right and the right to use, and rental rights belong to a kind of usufructuary right, and not the use of simple, to be a clear distinction between, so the strict limits on housing rental rights, in order to distinguish the usufructuary right and the right. However, there is no system structure of personal servitude and easement in China, and there is only one personal servitude in usufruct, that is, the right of habitation, with clear rights and no confusion of rights. In addition, if the right people to rent houses, can maximum limit for housing to be used, in today's resource shortage has practical significance, and ease the predicament of residency of life, there will be no impact to owner interests, meet the demand of both sides of their respective, therefore, our country legislation about residency, according to whether agree to rental housing, agree in our country. However, the lease right shall not be completely unrestricted. The lease term of the house shall be within the period of the right of residence, so as to avoid the damage of the owner's rights and interests.

In order to meet the needs of normal life, the occupant should be allowed to make appropriate repairs to the house to give full play to the utility of the house, such as decorating the house and adding auxiliary facilities. It should be noted that "although the occupants are allowed to carry out maintenance and necessary repairs to the house, matters relating to structural changes such as restructuring cannot be changed at will." But both parties agree otherwise or agree via building droit person except. If the parties have agreed on the expenses for the repair and maintenance of the house and residence, the agreement shall prevail. In the absence of an agreement, such expenses shall also be borne by the holder of the right to live, because the holder of the right to live is the owner of the right and the main beneficiary of the renovation, and the burden on the owner of the premises shall not be increased.

The preemption right of the occupant should be mandatory stipulated by the law, and should not be agreed by both parties. From the legal nature of the right of habitation and the objective requirements in social life, the property law should clearly stipulate that the owner of the house should notify the right of habitation within a reasonable period of time when selling the house.

Concerning the house in which the house is located, the occupant shall fulfill the necessary duty of care, strictly require himself as a kind manager, and use the house and ancillary buildings within a reasonable and appropriate scope. The occupant's use of the residence shall be limited to residence, and shall not change the use of the house at will, and shall not be used for commercial activities and profit therefrom. As mentioned above, in order to meet the needs of daily life, the occupant has the right to repair and maintain the house properly, but not to modify or change the main structure of the house at will.

The entry of the right of residence law is for the purpose of protecting the right of residence, which partly limits the interference of the owner of the house. Since the house is within the right of the occupant, the interests of the owner are likely to be infringed. In order to protect the relevant rights and interests of the owner and avoid the occurrence of interest conflict, the interests of the two should be weighed. At the beginning of the establishment of the right of habitation, the occupant shall undertake the obligation of compiling a list of properties for the house. The owner has the right to demand adequate security from the occupant if the occupant's behavior is suspected of harming the interests of the owner. In addition, the owner may appeal to the court for judgment to provide the corresponding guarantee or stop the infringement. For this obligation, European countries legislation, there are also relevant provisions. Of course, if the owner believes that the behavior of the occupant has a causal relationship with the damage to his rights and interests, the owner should bear the corresponding burden of proof for this fact.

The necessary daily expenses of the right of residence include house repair fee and property fee. According to the Roman law, the necessary expenses are mainly maintenance, repair and taxes, while the maintenance fee is not included. In principle, the major maintenance expenses of this part shall be paid by the owner, unless otherwise agreed by both parties. However, if the maintenance fee is caused by the owner's failure to maintain it in a timely manner, there is no doubt that the cost should be borne by the owner. In addition, the occupant shall keep the house reasonably during the period of residence and shall not commit any act of damage to the house. If there is a hidden danger of damage or loss of the house, the occupant has the legal obligation to inform the owner in time, or take corresponding measures to repair the house. If the owner refuses to repair or intentionally delays the repair, the right of residence can pay the repair cost in advance, and then claim compensation from the owner. During the period of the right of habitation, the right of habitation should fulfill the duty of care of the kind manager, reasonably use the house and the attached buildings, and restore the house to its original state. Upon loss of the right of habitation, the holder of the right of habitation shall return all of it to the owner. In the event of the death of the occupant, the successor of the occupant shall return the house in which he lives on behalf of the occupant. If the house is damaged or lost, which is not due to reasonable use or meeting the needs of life, and cannot be returned in time, the occupant shall be liable for compensation. Under normal circumstances, the occupant shall not be liable for wear and tear, depreciation, etc.

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