CYIL vol. 7 (2016)

116

DALIBOR JÍLEK – JANA MICHALIČKOVÁ

CYIL 7 ȍ2016Ȏ

piece of legislation, Soviet law, the content of which was based on antagonist class

interests, applied to the family matters of Russian refugees.

Legal standing was incompatible with the Arrangement, which allowed the state to

apply either domicile or habitual residence, or residence at the latest. The connecting

factor of nationality was not foreseen. Germany did not act in accordance with lex

posterior in relation to incompatible treaty obligations. A similar legal argument

based on

lex specialis

would also lead to the precedence and strict application of

a treaty provision on refugees.

The Arrangement led the couple of connecting factors of domicile and habitual

residence into an identical but determining position. However, domicile was a legal

concept depending exclusively on national law, where it was settled. That time, as

found, more than fifty legal definitions of domicile were used. Those definitions

were either reflections of usage of this concept or prescriptions of the required usage.

These were the reasons for the doctrinal endeavour for uniform interpretation of that

concept.

The traditional Roman law used either the legal concept or the descriptive,

factual concept of domicile. Nevertheless, national law gradually converted the

concept of domicile into a legal framework and legal definition. The factual concept

of domicile faded away. Contrarily, the concept of habitual residence still was and

remained in immediate contact with reality.

The concept of habitual residence was incorporated into German law on social

support for housing

(Gesetz über den Unterstützungswohnsitz)

of 1870.

The concept

mentioned belonged to homeland law

(Heimatrecht)

. The claim of a community

habitant to poverty support stemmed from this branch of law. In a broader sense,

the concept of habitual residence

(gewöhnliche Aufenthalt)

was an integral part of

public law.

This concept played a unique role in such a legal context. Awarding

of the social claim was entirely dependent on this concept. Habitual residence as

a fact was a substantive condition for poverty support. The provision of § 10 of the

mentioned Act provided:

Wer innerhalb eines Ortsarmenverbandes nach zurückgelegtem vier und zwanzigsten

Lebensjahre zwei Jahre lang ununterbrochen seinen gewöhnlichen Aufenthalt gehabt

hat, erwirbt dadurch in demselben den Unterstützungswohnsitz.

Everyone having his habitual residence continually for two years after the twenty-

fourth year of his age within a local poor community is entitled to obtain housing

support there.

DE MAGALHAES, José Maria Barbosa. La doctrine du domicile en droit international privé.

Recueil

des cours

Collected Courses of The Hague Academy of International Law.

Leyden: Brill, 1928, Vol. 23, III,

Reichsgesetzblatt (RGBl.),1870, p. 360.

See BAETGE Dietmar.

Der Gewöhnliche Aufenthalt im Internationalen Privatrecht.

Tübingen: J. C. B.

Mohr, 1994, pp. 62-63.