Viewpoint | A Brief Analysis of the Application of the Right of Residence in Social Life
Published:
2021-12-10
Since the implementation of the Civil Code this year, the right of residence has been more and more applied to social life. Compared with other systems, the right of residence has strong personal attributes, and the addition of the right of residence system also provides more legal support for people to make rational use of other people's real estate. 1. the Legal Evolution of China's Right of Residence System In 2001, the Supreme People's Court on the application.<中华人民共和国婚姻法>Article 27 of the (I) for the Interpretation of Certain Issues stipulates that "in the event of divorce, one party uses the housing in his personal property to help the person in difficulty, which can be the right of residence or the ownership of the house", and the right of residence was proposed for the first time. In order to solve the housing problem of the party suffering in life; in 2002, the housing right system appeared for the first time in the the People's Republic of China Property Law (Draft for Soliciting Opinions), however, the content of the right of residence was deleted in the subsequent draft review. The Civil Code of 2018 (Exposure Draft) set up the right of residence system, and the Civil Code, which came into effect on January 1, 2021, formally established the right of residence in the form of a code, so that the right of residence system was officially implemented in China. Application Scenarios of 2. Right of Residence After the implementation of the Civil Code, the first residence registration dispute in each province was reported. In social life, the right of residence is increasingly favored by the masses, mainly applicable: 1. In the event of divorce, one party should not only obtain the property right of the house, but also consider giving the other party residence security, so that the right of residence can be established on the house. However, considering that if the right of residence is established as a permanent right of residence, it will inevitably hinder the rights and interests of the owner of the house in possession, use, income and disposition of the house, it is suggested that the actual situation of both parties should be fully considered when establishing the right of residence, a limited term of the right of residence should be agreed, and the agreed conditions for the elimination of the right of residence should be increased, such as the elimination of the right of the right of residence after the other party's remarriage and the child. 2. For the remarried elderly, the establishment of the right of residence can provide protection for the remarried spouse's residence in the real estate, and will not bring about disputes over the ownership of the house, which not only avoids the anxiety of the remarried spouse living without a house, but also realizes the harmony between the remarried spouse and the children. 3. For the elderly without children, by establishing the right of residence, on the one hand, they can ensure their own right of residence, on the other hand, they can obtain certain financial security after the transfer of real estate. The applicable scenarios of the right of residence are diverse and limited to space and are not listed here. The flexibility, exclusiveness and publicity of the right of residence will bring new changes to the life of the masses. The Establishment of 3. Residence Right in Social Life Although the Civil Code provides for the establishment of the right of residence by contract and will, in practice, the right of residence established in the form of legal instruments in force also abounds. The Civil Code provides that the parties to the establishment of a right of residence shall conclude a contract of right of residence in writing. The right of residence is established free of charge and may not be transferred or inherited. The residence with the right of residence shall not be rented out. If the right of residence is established, it shall apply to the registration authority for registration of the right of residence; if the right of residence is extinguished, the cancellation of registration shall be carried out in a timely manner. 1, the establishment of the right of residence by contract. People can establish the right of residence through negotiation in social life. The specific performance is as follows: after the housing property right party determines the ownership of the residence right, it signs the residence right contract with the residence right holder, submits the materials according to the requirements of the real estate registration center, and waits for the examination and approval to issue the certificate. 2, the establishment of the right of residence by will. The Civil Code clearly stipulates that the right of residence can be established by will. However, the narrow sense of testamentary succession only includes legal heirs, and the "Shanghai Real Estate Registration Several Provisions", Jinan City, "on the development of residence registration work notice (trial)" all refer to "the relevant information of the bequest", therefore, the will here should be understood in a broad sense, that is, should include bequests. 3. Establishment of the right of residence by legal instrument in force In practice, the effective legal documents made by the people's courts and arbitration institutions are mainly mediation documents involving the content of the right of residence or the two parties have reached an agreement on the right of residence, and the judgment confirmed by the people's court after one party refuses to perform. The effective legal documents are enforceable. Therefore, it is possible to apply to the real estate registration center for the right of residence registration in the form of effective legal documents. The Significance of the Establishment of 4. Residence Right The establishment of the right of residence fully combines ethics and law, protects the living rights and interests of vulnerable groups, makes the weak have a place to live, and plays an important role in adjusting marriage and family relations and balancing the interests of all parties. The residence right system not only satisfies the subject will of both parties, but also gives full play to the use value of the house, providing a new scheme for effective property distribution. Tips The application for the establishment of the right of residence in Jinan shall be submitted: 1. to set up residence rights on other people's real estate, they can submit an application to the nearby district and county real estate registration centers, or they can apply online through Shandong government service network, love Shandong quancheng mobile phone app, etc; Materials to be submitted for the first registration of 2. residence: 1. If the right of residence is established by contract, it shall be jointly applied by both parties to the contract and shall submit: application for real estate registration (automatically generated by the system), residence contract (with model window), real estate ownership certificate and applicant's identity certificate; 2. If the right of residence is established by will, the parties shall apply unilaterally: it can be handled together with the registration of the transfer of real estate, and the notarized information and identification information such as the notarized certificate of inheritance right and the notarized certificate of acceptance of bequest; 3. If the right of residence is established by the effective legal documents of the people's court and the arbitration institution, the parties shall apply unilaterally and submit: the application for real estate registration (automatically generated by the system), the legal documents made by the arbitration institution of the people's court, and the applicant's identity certification materials; After the 3. residence right is examined and registered, an electronic license will be issued. If you need a paper certificate, you can get it at the window of the nearest real estate registration hall or mail it by the real estate registration center; 4. residence registration is temporarily free of charge.</中华人民共和国婚姻法>
Since the implementation of the Civil Code this year, the right of residence has been more and more applied to social life. Compared with other systems, the right of residence has strong personal attributes, and the addition of the right of residence system also provides more legal support for people to make rational use of other people's real estate.
1. the Legal Evolution of China's Right of Residence System
In 2001, the Supreme People's Court on the application.<中华人民共和国婚姻法>Article 27 of the (I) for the Interpretation of Certain Issues stipulates that "in the event of divorce, one party uses the housing in his personal property to help the person in difficulty, which can be the right of residence or the ownership of the house", and the right of residence was proposed for the first time. In order to solve the housing problem of the party suffering in life; in 2002, the housing right system appeared for the first time in the the People's Republic of China Property Law (Draft for Soliciting Opinions), however, the content of the right of residence was deleted in the subsequent draft review. The Civil Code of 2018 (Exposure Draft) set up the right of residence system, and the Civil Code, which came into effect on January 1, 2021, formally established the right of residence in the form of a code, so that the right of residence system was officially implemented in China.
Application Scenarios of 2. Right of Residence
After the implementation of the Civil Code, the first residence registration dispute in each province was reported. In social life, the right of residence is increasingly favored by the masses, mainly applicable:
1. In the event of divorce, one party should not only obtain the property right of the house, but also consider giving the other party residence security, so that the right of residence can be established on the house. However, considering that if the right of residence is established as a permanent right of residence, it will inevitably hinder the rights and interests of the owner of the house in possession, use, income and disposition of the house, it is suggested that the actual situation of both parties should be fully considered when establishing the right of residence, a limited term of the right of residence should be agreed, and the agreed conditions for the elimination of the right of residence should be increased, such as the elimination of the right of the right of residence after the other party's remarriage and the child.
2. For the remarried elderly, the establishment of the right of residence can provide protection for the remarried spouse's residence in the real estate, and will not bring about disputes over the ownership of the house, which not only avoids the anxiety of the remarried spouse living without a house, but also realizes the harmony between the remarried spouse and the children.
3. For the elderly without children, by establishing the right of residence, on the one hand, they can ensure their own right of residence, on the other hand, they can obtain certain financial security after the transfer of real estate.
The applicable scenarios of the right of residence are diverse and limited to space and are not listed here. The flexibility, exclusiveness and publicity of the right of residence will bring new changes to the life of the masses.
The Establishment of 3. Residence Right in Social Life
Although the Civil Code provides for the establishment of the right of residence by contract and will, in practice, the right of residence is also established in the form of legal instruments in force. The Civil Code provides that the parties to the establishment of a right of residence shall conclude a contract of right of residence in writing. The right of residence is established free of charge and may not be transferred or inherited. The residence with the right of residence shall not be rented out. If the right of residence is established, it shall apply to the registration authority for registration of the right of residence; if the right of residence is extinguished, the cancellation of registration shall be carried out in a timely manner.
1, the establishment of the right of residence by contract.
People can establish the right of residence through negotiation in social life. The specific performance is as follows: after the housing property right party determines the ownership of the residence right, it signs the residence right contract with the residence right holder, submits the materials according to the requirements of the real estate registration center, and waits for the examination and approval to issue the certificate.
2, the establishment of the right of residence by will.
The Civil Code clearly stipulates that the right of residence can be established by will. However, the narrow sense of testamentary succession only includes legal heirs, and the "Shanghai Real Estate Registration Several Provisions", Jinan City, "on the development of residence registration work notice (trial)" all refer to "the relevant information of the bequest", therefore, the will here should be understood in a broad sense, that is, should include bequests.
3. Establishment of the right of residence by legal instrument in force
In practice, the effective legal documents made by the people's courts and arbitration institutions are mainly mediation documents involving the content of the right of residence or the two parties have reached an agreement on the right of residence, and the judgment confirmed by the people's court after one party refuses to perform. The effective legal documents are enforceable. Therefore, it is possible to apply to the real estate registration center for the right of residence registration in the form of effective legal documents.
The Significance of the Establishment of 4. Residence Right
The establishment of the right of residence fully combines ethics and law, protects the living rights and interests of vulnerable groups, makes the weak have a place to live, and plays an important role in adjusting marriage and family relations and balancing the interests of all parties. The residence right system not only satisfies the subject will of both parties, but also gives full play to the use value of the house, providing a new scheme for effective property distribution.
Tips
The application for the establishment of the right of residence in Jinan shall be submitted:
1.To set up residence rights on other people's real estate, you can submit an application to the nearest district and county real estate registration center, or you can apply online through Shandong government service network, love Shandong quancheng office mobile phone app, etc;
2.Materials to be submitted for the first registration of the right of residence:
1. If the right of residence is established by contract, it shall be jointly applied by both parties to the contract and shall submit: application for real estate registration (automatically generated by the system), residence contract (with model window), real estate ownership certificate and applicant's identity certificate;
2. If the right of residence is established by will, the parties shall apply unilaterally: it can be handled together with the registration of the transfer of real estate, and the notarized information and identification information such as the notarized certificate of inheritance right and the notarized certificate of acceptance of bequest;
3. If the right of residence is established by the effective legal documents of the people's court and the arbitration institution, the parties shall apply unilaterally and submit: the application for real estate registration (automatically generated by the system), the legal documents made by the arbitration institution of the people's court, and the applicant's identity certification materials;
3.After the right of residence is examined and registered, an electronic license will be issued. If you need a paper certificate, you can get it at the window of the nearest real estate registration hall or mail it by the real estate registration center;
4.Registration of the right of residence is temporarily free of charge.
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