On the afternoon of May 28, 2020, the Third Session of the 13th National People's Congress voted to adopt the Civil Code of the People's Republic of China (hereinafter referred to as the Civil Code). The Civil Code, which comes into force on January 1, 2021, has seven parts and 1260 articles. In order, they are the General Principles, Property Rights, Contracts, Personality Rights, Marriage and Family, Inheritance, Tort Liability, and Supplementary Provisions. After the formal promulgation and implementation of the Civil Code, the well-known "Property Law", "Contract Law", "Guarantee Law", "Tort Liability Law", "Marriage Law", "Inheritance Law", and "Adoption Law" will withdraw from the current effective legal system. Therefore, legal workers have ridiculed themselves as "what they have learned in half their lives is destroyed in a moment." There are also jokes about "choosing a good major, and having the college entrance exam every year!" As a lawyer, we not only need to familiarize ourselves with and master every knowledge point from beginning to end, but also fully understand and absorb its legislative intent and value orientation. We can't help but sigh that there are countless days and nights of desk work and hard work.

It is precisely said that where the people are secure, the law is bound. As the first law named after the code in New China, the Civil Code is by far the largest law in New China, and is known as the "encyclopedia of social life" and "manifesto for safeguarding civil rights.". From state ownership to the land system, from birth, old age, illness, death, clothing, food, housing, and transportation, to individuals, it can be described as all-encompassing. Moreover, the Civil Code has also made clear responses to many issues that have been strongly reflected by the people. For example, it has made clear provisions for various "human flesh search" and illegal theft of information from others. It has also established a "divorce calm period system", "heir forgiveness system", "self-help behavior system", and established the "voluntary risk" rule. At the same time, it has also established a high degree of social concern for the donation of remains and organs Issues such as sexual harassment in the workplace and on campus have been strictly regulated. Therefore, the Civil Code is not only a simple compilation of several existing laws, but also a systematic and up-to-date compilation of China's civil law field in the new situation of integrating the development of social rule of law, with inheritance and innovation, which can be described as numerous highlights. In the current stage of learning, I have focused on the property rights section, with the focus on "residency rights.". "To live and work in peace and contentment", only "to live and work in peace and contentment" can one be "happy and work in peace and contentment". A separate chapter of the Property Code provides for a new usufructuary right, "the right to reside.".

1、 What is residency? What are the legal characteristics of residency?

According to the provisions of Articles 366 to 371 of Chapter 14 of the Civil Code, first, the right of residence is a right established on a house owned by others, which is a usufructuary right that can be possessed and used by others. Its establishment is mainly to meet the needs of daily living. The right of residence is only for living and cannot be used for production. Legal persons generally do not enjoy the right of residence. Secondly, the establishment of residence rights adopts the form of "written contract+registration". The right of abode cannot be established naturally. To establish the right of abode, it is necessary to conclude a written contract for the right of abode and apply to the registration authority for registration. The right of abode shall be established upon registration. Thirdly, the right of residence is established free of charge in principle. If there is no special agreement, the resident does not need to pay fees during the period of residence, which is a "grace act", unless otherwise agreed by the parties. In addition, the right of abode cannot be inherited or transferred, and residential buildings that establish the right of abode cannot be leased. Therefore, for the owner of a house, a house that has established residency rights cannot be leased. For the person with the right to reside in a house, the right to reside cannot be disposed of as an estate, nor can it be transferred (including leased). Unless otherwise agreed by the parties. The right of residence is generally established for the residence of specific related persons. If the person with the right of residence is allowed to transfer and inherit, it will inevitably violate the original intention of the establishment of the right of residence. In addition, the right of residence itself is to ensure the stability and tranquility of the residents, and the original right holders are generally not allowed to rent. Fourth, if the duration of the establishment of the right of abode expires from its agreement or if the person with the right of abode dies, the right of abode shall be extinguished.

2、 The Legal and Social Effects of Residence Rights

The purpose of setting the right of residence is to distribute the ownership of the house between the person with the right of residence and the owner, so as to meet their different needs and maximize the effectiveness of the house. On the one hand, the establishment of residence rights is essentially a restriction on the ownership of a house, or a transfer of some of the rights in ownership, mainly the rights to possess and use. If the housing involved in the case has a residency right established, the new housing owner cannot drive out the residency right holder. Suppose an elderly person establishes a "residency right" for a nanny or friend in a privately owned house. After the elderly person dies, even if the house is inherited by their children, the nanny or friend still enjoys the residency right. If there is no period of residence rights established, the nanny or friend can stay until their death. Even if the children of the elderly have obtained a real estate certificate, they cannot be evicted or rented out of the house. Therefore, in the process of handling disputes over housing sales contracts, in addition to paying attention to information such as housing ownership, mortgage, and judicial attachment, it is also necessary to pay attention to whether the housing involved has established residency rights. However, the right of residence is based on registration and is only established upon registration. Therefore, it is possible to inquire whether the housing involved has registered residence rights. If not, there is no need to consider residence rights restrictions. In addition, "residency rights" will have more applications in future civil legal relationships, such as property division during divorce, testamentary inheritance disputes, public rental housing, housing for the elderly, and other issues. "We need to be" more careful "or" keep an eye out "when reviewing or drafting relevant contracts.". For example, in a marriage relationship, because the property is registered in the name of one party, or the property is the premarital property of the other party, we can protect the interests of the other party by establishing residency rights. In family relationships, because many families currently purchase houses with the contributions of their parents, loans from their children, and property rights registered in their children's names, we can protect their parents' rights and interests by establishing residency rights. Currently, the ownership of public rental housing is generally owned by the local government, and there is only a leasing relationship with residents. It is difficult to ensure the basic rights and interests of residents. If the "right of residence" can be clearly defined, it will undoubtedly protect the rights and interests of these low-income people.

3、 Doubts about residency rights

Currently, the current law only recognizes the use of "house ownership" and "lease right" in two forms of housing, which is difficult to fully meet the diverse needs of the parties. The right of residence has both stability and flexibility, which can fully guarantee the owner's free control of the house, providing more ways to utilize the house, not only achieving housing security for specific vulnerable groups, but also flexibly meeting the other housing needs of the parties. However, the provisions on the right of residence in the Civil Code are not yet clear, and there are still some doubts in the application process. For example, regarding the effectiveness of residency and tenancy rights. The vast majority of people believe that the right of residence is a kind of usufructuary right, which belongs to real rights and has a worldly nature. The effectiveness of residency rights is higher than that of leases. "For a leased house that has been subsequently established with a residency right, the person with the residency right has the right to request the lessee to move out of the house in order to achieve the purpose of residence.". "The establishment of residency rights in a house cannot be rented out," in essence, also indicates that the establishment of residency rights in a house cannot coexist with the right to rent. However, some people believe that the sale does not break the lease, indicating that the stable residence of the lessee can counter the disposal of the house by the house owner. At this time, it is necessary to consider whether the residence owner is "in good faith". There are also issues such as whether residents have the right of first refusal and how to handle their residency rights if they are unable to pay for their residency funds when establishing residency rights with compensation.

"The people call for it, and the civil code responds to it.". In general, the establishment of residency rights can help solve social hot issues such as housing for the elderly, public rental housing, and residential issues in divorce disputes, providing clear guidance and strong protection for the social life of the people. The promulgation and implementation of the Civil Code can be described as the "Declaration on the Rights of the People in the New Era", which constructs the logical main line of the entire code with a rights standard and opens a new era of civil rights protection in China. As a legal worker, it will be our tireless pursuit to fully protect the rights of the parties and establish the foundation of China under the rule of law.

(This article is translated by software translator for reference only.)