การเพิกถอนสิทธิอาศัย

Abstract

This research having its objective of studying on the restriction of the cancellation of the right of habitation under the Civil and Commercial Code which has not been governed for the problem related to right of habitation. It has been compared to the cancellation under the French Civil law and the German.

Under the studying on the cancellation of right of habitation , it has been found that the regulation of law of habitation under the Civil and Commercial Code section 1402 to section 1409 said only that of the termination of right of habitation in general, not on the cancellation for the terms of termination the duration of the right still exist. The term of existing of the right may have got the terms of time of limitation or the lifetime of the Grantee or in case of the Grantee can find his/her resident by his/her fund but he/she continue using the house of the Grantor, without considering on the difficulties of the Grantor or if the Grantor has his/her necessity of economically or other necessity to have the house be used or in case of the Grantee does not use the house but not abundant the right of habitation or by negligence the Grantor didn't make in written saying for the restriction of person who can use the house being only the Grantee but later on the Grantee take the members of his family and his household may dwell with him which the law has not been governed for the said cases. But in the Civil Code of the French and German, which being the model of drafting the regulation of the Thai including the right of habitation has the regulation to find solution. Under the French Civil Code said that the granting and the termination of the right of habitation shall be the same of those right of usufruct. The law regulated in the section 625 which said The right of use and the right of habitation shall be granted and terminated by the same way of the right of usufruct. Under the last verses of section 618 said. “The Judges may, according to the seriousness of the case, either order the absolute cancellation of the usufruct, or only the owner recover the enjoyment of the thing subject there to on condition of paying annually to the usufructuary or to his legal representatives a fixed amount, up to the time the usufruct should have terminated.”

The German Civil Code, didn't write directly for the termination of the right of the habitation but it has been written in the Section 1093 which propose to take the regulation of usufruct for using in some necessity case. Considering the termination of right of usufruct that may related to the right of the right of habitation can be seen under the section 1054 of the German Civil Code. Section 1054 of the German Civil Code said "If the usufructuary violates the rights of the owner to a substantial degree, and if he continues the injuring conduct notwithstanding a warning notice from the owner, the owner may require administration to be judicially ordered under section 1052”

I recommend there should be some amendments on the Civil and Commercial Code , Book 4 Title 5 of habitation to govern the case if the attitudes or the conduct of the Grantee treats violence against the Grantor or to let the Grantor get some right to consider the accompany person/s who will use the house or to let the Grantor to request the judge to terminate the habitation right if there is violence action against the properties or if the Grantor requires of some necessity to use the house as that said in the French and the German Civil Code.