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DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
Based on the example of the Italian Civil Code, Mancini tied legal status, capacity
and family relations up with the laws of fatherland. The law of fatherland was
equal to the law of state and nation. He awarded the principle of nationality with
a dominant and universal character, whereas domicile of choice was of a subsidiary
position. Domicile should have been applied exclusively when a state, usually
federal, was based on composite, heterogeneous private law or when a person was
without nationality or had double nationality.
Mancini’s regulation divided the members of the session in their views as to
the mutual relationship between the principle of nationality and domicile. One
group, led by Bluntschli, was of the opinion that the principle of nationality, being
the general principle, would have in all likelihood prevailed over other principles
regulating personal status.
31
Nevertheless a profound research of national laws
which differed both substantively and conceptually was required. The other group,
led by Esperson and having Piarantoni (Mancini’s son-in-law) as one of its members,
accepted the Mancini’s regulation with professional gratitude.
32
The concept of
nationality should have prevailed over the domicile, and the principle of nationality
should have been given preference. Mancini’s regulation entered into broad legal
circles despite a disapproving response from jurists.
Mancini introduced a hierarchy: the principle of nationality was superior to
domicile; however he did not by this totally overcome the discrepancy in opinions.
The law of the state to which the person belonged applied to his personal status. The
nationality of a person established a more firm and permanent relationship than
domicile or residence, even if both forms of bonds between an individual and
a community did not lack firmness. The relation of nationality towards the state was
not a mere bond consisting of reciprocal rights and duties.
33
The relationship was
supported by a strong social fact of attachment.
34
In the 19th century a social and
legal bond established by nationality was based upon a devoted political idea: one
nation – one state, or the unity of nation and state. That is why it was usual that the
social and legal identity of an individual was monolithic. A person belonged to one
nation and at the same time to one fatherland and one state.
obligatoire pour tous les États, sous la forme d’un ou de plusieurs Traités internationaux, un certain
nombre de règles générales du Droit International Privé, pour assurer la décision uniforme des conflicts
entre les différentes législations civiles et criminelles».
31
NADELMANN, Kurt H. Mancini‘s Nationality Rule and Non-Unified Legal Systems. Nationality
versus Domicile.
The American Journal of Comparative Law
, 1969, Vol. 17, p. 425.
32
Ibid
.
33
Permanent Court of International Justice,
Acquisition of Polish Nationality
, Advisory opinion of
September 10
th
, 1923, Serie B. No. 6, p. 37.
34
International Court of Justice,
Nottebohm Case
(Liechenstein v. Guatemala), Judgment of April 6
th
,
1955, p. 23.