CYIL Vol. 7, 2016

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.


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