石家庄学院学报

居住权合同作为负担行为依法独立产生债之效力。依据区分原则，居住权未登记不影响合同效力。居住权合同的成立生效、履行和效力等基本问题解释进路以《民法典》合同编规则为主要依据。结合物权编居住权立法体系和制度功能，居住权合同成立后产生双重效应：一是所有权人应履行办理居住权登记的义务，居住权人有权请求所有权人办理居住权登记。居住权人应按约定尽到善良管理人义务，合理利用和维护房屋及其附属设施。二是未办理居住权登记时，居住权人只能获得债权性相对保护，依物权优先效力原则，不得对抗第三人，但是应类推适用“买卖不破租赁”或个案中结合居住权目的作价值权衡。未办理居住权登记的合同可以向公证机构申请办理公证，以赋予债权文书强制执行效力。当约定或者法定居住权解除条件成就时，居住权消灭。

As a burden act, the contract of residence right produces the effect of debt independently according to law. According to the principle of discrimination, the unregistered residence right does not affect the effect of the contract. The explanation of the basic issues such as the establishment, effectiveness, performance and effectiveness of the contract of the residence right is based on the contract compilation rules of the Civil Code. Combined with the legislative system and institutional functions of the residence right compiled by real right, the contract of the residence right has a dual effect after it is established: Firstly, the owner should fulfill the obligation to register the residence right, and resident has the right to request the owner to register. The resident shall fulfill the obligation of good manager, and makes rational use and maintenance of the house and its ancillary facilities. Secondly, without the registration of residence right, the resident can only get relative protection of creditor's rights, and cannot fight against a third party according to the principle of priority effect of real right. However, the principle of "buying and selling without breaking the lease" should be applied by analogy, or the value should be weighed according to the purpose of residence right in individual cases. A contract without registration of residence right may apply to a notary public for notarization to give the debt document the effect of enforcement. The right of residence is extinguished when the agreement or the conditions for the lifting of the legal right of residence are fulfilled.