NEW PROBLEMS IN CHINA’S HOUSING LEGISLATION(六)
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holders must use and safeguard the house rationally; (b) the right-holders must undertake the expenses of auxiliary facilities and services. 4. The Termination of the Habitation Right. — In reference to the laws of foreign countries, the reasons for the termination of the habitation right include: (a) The term expires or the right holder dies; (b) the rights are mixed up; (c) the right holder gives up the right of habitation; (d) the right of habitation is abused; (e) the house has been totally destroyed; (f) the right holder violates the personal right of the house owner and other close relatives. As an important legal system in protecting vulnerable groups, the system of habitation right has major significance in promoting the harmony of families and of the society. Therefore, in the process of discussing the establishment of housing act or housing security law, it is necessary for China to introduce and establish the system of habitation right, to give full play to social security and to achieve the objective of “housing guarantee.” Moreover, attention should be paid to introduce this system subsequently, especially, to the realization of this right. With respect to establishing the system of habitation right, some other countries have their own legislation experiences. In France, citizen’s right of habitation can be protected through litigation; moreover, French government offers legal defense within the right to housing, which means people without a house to live can protect their own housing rights by legal means. These executable regulations also can ensure that every person will have a place to live in. In fact, as to the report of Agence France Presse (French News Agency), originally, only the right to education and the right to health protection are defendable in France. Therefore, it is clear that French government placed great emphasis on housing problems. If the housing security law can clarify the right of habitation in the future, it will be a thorough redress for the over-marketized housing and will establish a new housing-provision system with the core of people’s 312 FRONTIERS OF LAW IN CHINA [Vol. 7: 295 livelihood. D. Establishing the Housing Security System The achievement of the right to housing requires the protection by law. When the settlement of housing problems is deemed as the achievement of housing right, the achievement of such right will be no more than a personal question. From another perspective, this is an issue of government’s responsibility. In simple terms, the government has responsibilities and obligations to help people reach the housing right. The duties of government to settle the problem of reaching the right to housing, include: (a) The duty of public administration is to promote market development steadily through legal and administrative means; (b) the duty of public services is to for people to reach the right to housing through economic means of the government, which include the controlling national economic resources, transferring payment, providing universal welfare, and other specific means. It is noted that all these responsibilities should be established by law and regulations. In order to achieve the right to housing, law enforcement measures should be enforced to confirm the legal status, contents, practice and protection of the right to housing. In fact, the achievement of the right to housing has been restricted by social and economic development and other factors. The residents without economic power are not able to afford an adequate housing by themselves, and a government without economic strength is not able to provide adequate housings to the residents. It is noted that China is also facing this problem. As a consequence, more attention is to be paid to make relevant law and regulations. As for the protection of human rights, the right to housing is a basic human right, which should be enjoyed by everyone. Therefore, regardless of economical ranks, everyone should receive the protection of law on the right to housing. The poor is in a weak economic position and they do not have the ability to buy an appropriate housing. Therefore, as for the middle and low income groups, the protection of the legal system of housing rights is that they should receive assistance, support and protection of the government so as to acquire housing. In other words, only after establishing the social security housing system, can this right be deemed as a realized right. For the rich, in order to reach the right to housing, they can acquire housing through market mechanisms such as property market or leasing transaction. The obligation holders here are the opposite parties in the transactions. The obligation of the government is to ensure the enjoyment of the rights and the transaction safety by enacting laws. Therefore, for the rich, the essential meaning of 2012] CHINA’S HOUSING LEGISLATION 313 protecting the right to housing is to provide legal protection for the right to housing and the transaction in the civil law system (such as the system of property rights). It is noted that an impeccable legal system of housing security can be achieved by the following steps: (a) continually improving the relevant regulations in the Real Right Law to protect the housing property right (that can be normally acquired through market means); (b) continually pushing the legislative process of housing act or housing security law to protect the housing right of middle and low income families. In the process of achieving citizens’ housing rights, we cannot only rely on the Real Right Law, because the housing act have some executable legal measures, but the Real Right Law can only provide very limited regulations for these measures. Moreover, at the time of establishing the housing act or housing security law, more attention should be paid to the coordination between the housing act and other relevant law and regulations. For example, the Urban and Rural Planning Law of the People’s Republic of China came into effect on October 28, 2007. This law embodies the tendency of socialization of law, and has a significant impact on the achievement of the citizens’ housing rights and the development of housing system in China. In addition, the relevant regulations of the proposed housing act or housing security law should be taken into account and more attention should be paid to the establishment and execution of matching measures. The Real Right Law offers special protection for the citizen’s housing property rights, and these regulations will lay a solid legal foundation for housing legislation. Since the current regulations are quite abstract, the proposed housing legislations need to materialize a number of regulations in match. In short, the housing system is one of the essential systems which are beneficial to the people’s livelihood and social stability. As to the reform of China’s housing system, great efforts should be made to resolve the problem on how to offer indemnificatory housing to those who are in middle and low income, while the commercialization of housing goes up to a certain stage. Accompanying with restraining the demand of investment and speculation by real estate owners, the policy to restrict certain persons to buy commercial housing has been executed (for over one year) since October 2010, showing that how to realize the indemnificatory function of housing (rather than its commercial function) has become the focus of Chinese government, which will be the direction of China’s housing reform system in the next period. |
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