論住房的雙重性質──基於家法則與契約自由原理的觀察

在我國憲法與法律中，“房屋”是個財產性的概念，“住宅”與人格直接相關，是個人格性的概念。有一個自己的家，同時擁有一定的財產，是中國人民在不同歷史時期為之奮鬥的基本善，也是憲法上的人身權與財產權保護的對象。在計劃年代，城鎮居民的住房是以社會總產品為後盾並參照家法則配置的住宅;住房制度改革後，住房轉而逐漸成為基於契約原理形成的房屋財產。家法則與契約自由原理形成雙重可變的複雜關係。“房住不炒”是以人民為中心的住房理念，是恩格斯住房觀的中國化。貫徹“房住不炒”，既要反對市場家庭化，也要反對家庭市場化。建設更好的市場需要對不完全契約進行修正，而家法則作為“隱秩序”，可以托庇在較好平衡了契約自由話語與公共服務屬性的非商品化公租房合同之中。

In the context of China's constitution law and statutes, the term ''housing'' is a concept of property while the term ''residence'' is a term related directly to personality. Possessing a residence and a decent amount of property has been the basic good pursued by Chinese people throughout history. As a result, private residence and property are under constitutional protection via personal right and property right stipulated in the Constitution. In the period of planned economy, the housing of urban citizens was backed by gross social product and was distributed according to the ''principles of family''. After the reform of the housing system, houses were gradually transformed into real property, which is formed through the principle of contract. As a result, the principles of family and the principle of freedom of contract have formed an interactive relationship. ''Houses are for living in and not for speculative investment'' is a people-centered ideal. It is the sinicization of the Engels's viewpoint concerning housing. To put into practice the policy of ''houses are for living in and not for speculative investment'', both the idea of ''familizing the market'' and the idea of ''marketizing the family'' should be rejected. The amendment to incomplete contracts is a necessity for establishing a better market. Principles of family as hidden norms can be borne in contracts for de-commodified public housing that well balance the freedom of contract and public services.