CYIL Vol. 7, 2016
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.
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