On the Application of the Norm of"Reference-based Application"Concerning the Establishment of Right of Habitation Through A Will
As an incomplete norm,the"Reference-based application"in Article 371 of Chinese Civil Code has its specific normative character.Because a certain degree of"similarity"is enjoyed in terms of the right attribute,formal requirement,essential content of the right of habitation,and both the rights of habitation established through a will and a contract are intent-determined rights of habitation,relevant rules on the establishment of the right of habitation through a contract may be applicable as a reference to the establishment of the right of habitation through a will.It is advisable to,on basis of taking the function of evidence preservation enjoyed by the written form,adopt the"valid will"with the same function of written form as the premise and basis for determining the formal requirements of the establishment of the right of habitation through a will.As a type of usufruct,the right of habitation is consistent with the category of"personal lawful property bequeathed by a natural person at the time of his death"and can be enjoyed by means of testamentary succession or gift.Moreover,the purpose of establishing the right of habitation through a will is to arrange in advance the lawful property bequeathed by the testator at the time of his death,who usually is not able to use legal terms such as"ownership"and"right of habitation"in a standardized way,thus regarding the everyday language such as"living","using",""taking shelter"and"life",it is necessary for the person who carries out the legal application to give reasonable and proper explanation of the will,that is,not to be completely limited by words and phrases used in the will,but take into account the purpose of the will,the habit of expression in the will and the principle of good faith to explore the real intent of the testator.Regarding the establishment of right of habitation by means of testamentary succession,the declaratory doctrine is adopted,thus the registration is not a required element of its establishment and the heir obtains the right of habitation upon the death of the testator;regarding the establishment of right of habitation by means of testamentary gift,it is necessary to adopt the transfer-based mode,i.e.the doctrine of effectiveness upon registration,thus the right of habitation is validly established upon the completion of registration.
Right of HabitationReference-based ApplicationTestamentary SuccessionTestamentary GiftValid WillRegistration
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