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DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
(
Heimatrecht
). The concept invaded various branches of German private and public
law. It was used, among other things, in substantive provisions, in family law or in
law of the social care of minors, in tax law or law on successions. The procedural rules
of civil as well as criminal law referred to this concept. The concept was uniquely
defined in the tax law. It determined a particular place (
Ort
) or land (
Land
) where
a person, based on circumstances, resided and not only stayed temporarily.
71
The
concept reflected the factual relation between an individual and a particular place
and a federal state respectively. The conceptual content was quite objective, disposed
of all subjective features and all factual or legal will of the resident. The concept did
not point to the requirement of intention either.
The concept played a unique role in the various fields of German law despite
manifestation of centripetal efforts for formulation of a common concept
(Allgemeinbegriff)
. Such efforts were supported by legal certainty and the conceptual
uniformity of that legal system. A single content of the concept would be applicable
in all legal situations irrespective of normative associations and facts of the case.
In social law the concept referred to the place of intentional centre of existence
rather than to a provisional sojourn
(den gewolten Mittelpunkt ihrer Existenz)
.
72
The
content of the concept of habitual residence combined the objective and subjective
conceptual component:
factum et animus
. Both components enlivened the traditional
conceptual structure of domicile of choice settled in Roman law. Especially
factum
was
determined correspondingly to Roman law. The content of the different concepts
converged. Still the concept of habitual residence did not lose the substance of
objectivity and facticity. Nevertheless it comprised
animus
to be the necessary and
sufficient conceptual component.
Mann insisted that the concept of habitual residence shall entail both
factum
and
animus
, the latter being a necessary conceptual component. Especially intention
requires the voluntary conduct of a person. Mann pointed to absurd results ensuing
from the application of the factual and objective concept of habitual residence.
Applying only objective factual circumstances without the intention of a concerned
person, a concentration camp should have been identified as a habitual residence of
a prisoner irrespective of his nationality or apatridity.
73
His descriptive definition could
not be exclusively related to explanation of the concept of habitual residence. The
objective of the definition of habitual residence was to adopt the definition of domicile
being the record of usage of this legal term. Consequently, Mann argued in favour of
convergence of the concepts of domicile and habitual residence. On the other hand,
he was against introduction of a common concept of habitual residence in private
71
MANN, Frederick Alexander. Der „Gewöhnliche Aufenthalt“ im Internationalen Privatrecht: Ein
Beitrag zum Problem der Rechtsvereinheittlichung.
Juristen Zeitung
, 1956, 11. Jahrgang, Nr. 15/16,
p. 466.
72
Ibid
.
73
Ibid
., p. 467.