Page 26 - 2021 Policy Watch

Policy Watch: A Milestone in Legal Development: China Promulgates a Civil Code

3. Property Rights 《最高人民法院关于审理环境侵权责任纠纷案件
适用法律若干问题的解释》第十四条仅规定经被
The Civil Code consists of 5 sub-chapters, 20 chapters 侵权人请求，法院可以裁判污染者承担环境修复
and 258 articles regarding property rights. The changes 责任。而《民法典》将可以要求污染者修复生态
mainly cover the rural collective property rights sys- 环境损害的主体范围从法院扩大至国家机关或法
tem, the condominium ownership system, the right to 律规定的组织。
reside, the collateral rights system and renewal of the
right to usage of residential construction. 5. 总则编

a. Usufruct: right to reside 《民法典》总则编共十章，二百零四条。与原来
的《民法通则》相比，完善了监护制度、民事权
The Law of Property Rights provides four privileges: the 利制度和民事责任制度，确立了特别法人制度。
right to use land for construction, land contractual 《民法典》立法过程主要分为两步：第一步是制
management rights, the homestead use and easement. 定《民法总则》；第二步是整合其他民事基本法
The Civil Code, based on this, adds the right to reside 律，结合《民法总则》编撰为《民法典》。因
as a new right of usage. The right to reside means that 此，《民法典》总则编与《民法总则》相比改动
a person with right to reside has the right of possession 较小。
and use of a residence of others in accordance with a
contract or will, in order to meet life’s requirements46.

The history of legislation on rights to reside can be
traced back to Roman Law. In Roman Law, the laws on
personal servitude are established to protect divorced
women, babysitters and other specific persons or the
disadvantaged. In the German Civil Code, the right to
reside is divided into two types, one is the traditional
right to reside, which is for protection of the right to
reside of the weak or a particular person, and the other
is the general right to reside, including the right to re-
side through investment. One of the main reasons why
China’s Civil Code decided to include the right to reside
is “to provide legal protection for public rental hous-
ing and housing for the elderly”47, which provides that
the right to reside is not limited to divorced women,
babysitters and other disadvantaged or specific groups
of people under protection; rather, it is the right to re-
side in general, with features of investment, and can be
applied to “housing for the elderly”.

Pursuant to the Civil Code, the right to reside can only
be established for a residence, but not for a house.
Therefore, shops and other commercial housing can-

46 Civil Code, Article 366
47 Explanation on Sub-sections of the Civil Code (draft) ----- at the
5th Meeting of the Standing Committee of the 13th National People’s
Congress on 27th August 2018, by Shen Chunyao, director of the Leg-
islative Affairs Commission of the Standing Committee of the National
People’s Congress

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