居住权是以居住为目的，对房屋及其附属设施占有、使用的权利。《民法典》物权编拟增加居住权制度回应社会的现实需求，值得肯定，租赁制度无法替代其制度功能。居住权的设立在国外早有先例可循，在国内的立法缺一波三折。究其原因，是民法学界对于居住权设立的必要性存在、对居住权应该如何立法存在争议。本文认为设立居住权能够解决目前法律适用上的不足，为司法实践中广泛存在的意定居住权提供法律依据，解决诸如“以房养老”等社会性问题，有着很充分的必要性。对于一个完整的权利，立法上应当从权利的概念、权利的设立、权利的内容、权利的消灭的角度进行周延的规定，本文结合国外的立法经验以及国内司法实践中所体现的民众对于居住权利的需求和法院对居住权利的保护路径，对《民法典》物权编草案中居住权的性质、权利内容、设立和消灭等各方面提出了进一步完善的建议。本文认为居住权是一种用益物权，是对他人的住宅及其附属设施享有的权利，其并不具备收益功能。居住权的设立方式主要包括合同、遗嘱、遗赠，采取登记设立主义。居住权的主体应当是自然人及其父母、配偶、子女等共同居住人，居住权的客体应当包括房屋及其附属设施，居住权的权利内容是在合同约定及法律规定的范围内对房屋的占有、使用，但不包括出租、抵押的权利。居住权的消灭事由除居住权期间届满以外，还包括合意消灭、法院判决消灭等。

The right of residence is the right to occupy and use the house and its auxiliary facilities for the purpose of residence. The "Civil Code" plans to increase the right to live in order to respond to the real needs of society. It is worth affirming that the lease system cannot replace its system function. There are long-standing precedents for the establishment of residency rights abroad, and there is a lack of domestic legislation. The reason for this is that there is a necessity for the establishment of the right of residence in the civil law academic circles, and there are disputes over how the right of residence should be legislated. This article believes that the establishment of the right of residence can solve the shortcomings of the current application of the law, provide a legal basis for the widespread determination of the right of residence in judicial practice, and solve social problems such as "supporting the elderly by housing". For a complete right, the legislation should be extended from the perspective of the concept of rights, the establishment of rights, the content of rights, and the extinction of rights. This article combines foreign legislative experience and domestic judicial rights embodied in the public ’s right to reside The needs of the court and the protection path of the right of residence by the court have made further suggestions on the nature, content of rights, establishment and extermination of the right of residence in the draft of the real right of the Civil Code. This article believes that the right of residence is a kind of usufructuary right, which is a right to other people's houses and ancillary facilities, and it does not have a profit function. The establishment of the right of residence mainly includes contracts, wills, bequests, and adopts registration establishment doctrine. The subject of the right of residence should be a natural person and his / her parents, spouse, children and other co-residents. The object of the right of residence should include the house and its ancillary facilities. The content of the right of residence is the possession of the house within the scope of the contract and the law , Use, but does not include the right to lease or mortgage. The extermination of the right of residence includes not only the expiration of the period of residence, but also the extermination of consensus, the extermination of the court decision, etc.