CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ PERSONAL STATUS OF REFUGEES: THE ORIGINAL INTERNATIONAL SOLUTION the same content in any legal context. That would have established a semantic ideal. On the other hand, the concept of habitual residence was of a factual category. The concept had always been the result of an evaluation of reality. The concept had been inextricably adjacent to immediate and continuous circumstances. Whereas these facts are verifiable, substantive and provable. These facts are divided as well as grouped in the concept. Provision § 34 of the General Civil Code from June 1, 1811, which was taken into Czechoslovak law, governed the personal capacity of foreigners for legal acts. The capacity of the foreigner was regulated by his residence. If the foreigner did not have his own residence, his capacity was governed by his birthplace. The section regarding the rights of aliens did not reference stateless persons. Otto’s Educational Dictionary ( Ottův slovník naučný ), published in 1893, elucidated the meaning of the concept of domicile with a nominal definition. 104 Both concepts mentioned could have been looked upon as synonymous pairs in the lexicon. In fact, it could have seemed that “domicile ( domicilium )”, derived from the Latin language, had “residence” as its sole linguistic equivalent. Nevertheless, the concept of domicile was not unknown to Austrian and subsequently Czechoslovak law. Domicile was applied in commercial paper law and canon law regulating relations between state and denominations. In commercial paper law, domicile designated the place where a note was to be paid. Whereas in canon law, domicile maintained continuity with Roman law, insisting on the necessity of both components ( factum et animus ). Domicile referred to a place where someone had settled with the intention of residing there permanently. Canon law distinguished between domicile ( domicilium verum ) and quasi- domicile ( quasi domicilium ). If a person had the capacity to choose, they could determine the place they would settle in. In such cases, this was domicilium voluntarium . The opposite was mandatory domicile ( domicilium necessarium, legale ). A person could have had several domiciles and quasi-domiciles concurrently, or both simultaneously. 105 The subordination of a person under religious jurisdiction was derived from domicile. However, its conceptual role, not even the conceptual role of domicile in commercial papers law, could fulfil the purpose of provision § 2 contained in the Arrangement. The only possible solution could have been derived from partial synonymy. The concept of “domicile” had to be replaced with the concept of “residence“. That is why the unparalleled interchangeability ( salva veritate ) in the sematic relationship of the two linguistic units could not be employed. Neither did the same frequency of occurrence of both legal concepts appear in distinct legal contexts. Even though, as in domicile, the content of the concept residence was made up of two identical components: factum and animus . Residence did not mean merely the physical presence or short-term stay of a person in some place. Residence was a place where a person evidently resided with a clear or circumstantial intention to remain there permanently. 106 Residence was a decisive aspect for establishing court jurisdiction in the Czechoslovakian procedural rules. Residence determined both general and specific local jurisdiction in both contentious and non-contentious legal 104 Ottův slovník naučný: illustrovaná encyklopaedie obecných vědomostí . 7. díl, Dánsko-Dřevec. Praha: J. Otto, 1893, p. 805. 105 Ibid. 106 HOETZEL, J., Bydliště In: HÁCHA, E., HOBZA, A., HOETZEL, J., WEYR, F., LAŠTOVKA, K., Slovník veřejného práva československého . Svazek I, A až Ch. Brno: Polygrafia – Rudolf M. Rohrer, 1929, p. 149.

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