149 / 536
135
CYIL 7 ȍ2016Ȏ
THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE
necessary length of presence of a person in the habitual residence, which is not laid
down in the Brusselss II
bis
Regulation. The Court states that the duration must
reflect an adequate degree of presence of a child at a particular place. Before habitual
residence can be transferred to another place, it is of paramount importance that
the person concerned has it in mind to establish a center of his interests there. The
intention should be of a permanent character.
132
As a result, both definitions meet
in a single court decision – the ostensive one and the descriptive one. According to
the Court of Justice they are dependent on each other.
4. Précis
Concepts are important units of legal thinking and reasoning. It is their primary
conceptual role.
133
In Roman law there appeared two fundamental concepts –
citizenship and domicile – which regulated the attachment of a person to an urban
community. In Roman law two paired forms of domicile had evolved — domicile of
origin and domicile of choice. Simultaneously, Roman law distinguished between
independent and dependent domicile. It is a well-known finding that Roman law
comprised conceptual dualism: factual and legal concept of domicile. A legal domicile
had a narrow content determined also by its role. The concept was characterized by
two features only:
factum
and
animus
. Factual concept was of different content. Its
content was closely, immediately bound to reality. The concept straightforwardly
represented and symbolized entities of reality, including authentic behaviour of an
individual.
In the second half of the 19th century private international law was considered
by some lawyers as a part of international law.
134
However, the concepts of nationality,
domicile and habitual residence had their origin in national law. The concept of
habitual residence originated in German social law. Consequently, these concepts
were transferred into international law by international conventions, especially of the
Hague Conference of Private International Law, but also of the
ad hoc
arragement
relating to the legal status of refugees. For decades, the concept of habitual residence
has been keeping the descriptive, factual content in private international law. It was
not specified in any international binding instrument. On the contrary, the concept
of domicile was constantly the concept of legal nature. Both concepts appeared
to pose a contradiction between them.
135
Nevertheless their content was made
132
Ibid
., paragraph 51.
133
CAREY Susan. Précis of the Origin of Concepts.
Behavioral and Brain Sciences
, 2011, Vol. 34, Iss. 3,
p. 123.
134
KRČMÁŘ, Jan.
Úvod do mezinárodního práva soukromého
. Část I. propedeutická. Praha: Bursík &
Kohout, 1906, p. 21.
135
FIORINI, Aude. Habitual Residence and the Newborn – A French Perspective.
International and
Comparative Law Quaterly
, April 2012, Vol. 61, p. 531.