A Study On Retroactivitof Law

Retroactivity of law is the basis theoretical questions of law, an important aspect oflaw involving time effectiveness. When defining the scope of the legal effect of the old andnew law involves not only the retroactivity of the law changes, but adapt to the lawcorrectly, settlement of disputes, more importantly is the realization of values and lawsrelating to the value of the target. Retroactivity study method has important theoretical andpractical significance.From the perspective of jurisprudence study on this issue, perhaps can be analyzed asthe following aspects:First, the theoretical and historical view traceability law retroactive. Retroactivity ofthe law, refers to the new law could be applied to their conduct before the commencementevents occurred or occurring, and for the past and future impact of these events on thelegal and behavioral effects occurred. In addition, the theoretical view retroactivity law,can not avoid the historical origins of the theory analysis and pulse. In other words, wemust discuss the development of law history on now and then, home and abroad athistorical perspective. in order to comprehensively review on the retroactive theory.Chinese and Western have diametrically opposed tradition in the retroactivity, upholddifferent principles: on the one hand, the history of China has always stood for lawretroactive; on the other hand, the west is to uphold the concept of law is notretroactive.this difference between east and west in the value of legal culture is the pursuitof traditional value. Under the background that law of non-retroactivity has become a legalprinciple,we need reform the Chinese traditional legal culture form the source. constructthe nation’s private law culture, the culture of right, the rule of law culture.For thenon-retroactivity law rooted in China, and become a spirit of the law to create a favorablelegal culture.Second, the retroactivity law’s analysis of general application, the principle ofnon-retroactivity of law. when learn the history of the origins retroactivity law theory, weknow the most central questions on the theory is the principle of non-retroactivity of law,therefore, we must study this issue whit a special chapter. Analysis the basis theoretical ofthe non-retroactive, the value, the scope and the rank. The development of modern lawfrom now, the stability of law and the protection of reliance interest has become a solidtheoretical basis law for non-retroactivity. Law principle of non-retroactivity for themaintenance of order, for promote equality,for freedom and the security of human rightsvalue,as a basic principle law around the world. This principle has always run through thelaw, that is a principle of legislation, but also a legal principles applicable.Therefore, theprinciple of non-retroactivity of law should have the constitutional rank, and it is thegeneral principle of the constitutional principle,the principle of rule of law and theprinciple of human rights. Third, the retroactivity law’s analysis of special application. Despite the modern ruleis " the principle of non-retroactivity " as the core principle, but can not to exclude the useof exceptions of that principle. Therefore, it is necessary to conduct a certain amount ofconcern. I believe that whether the law retroactive or not is considered as a legislativepolicy, the possibility of retroactive law decided by the legislature. And such exceptionsshould be clear limits of retroactive law.Specific principles, Which should distinguish thedifferent law department,then determined. Retroactivity principle on criminal law is aprinciples,which conducive to crime; administrative law and economic law often takepermission " unfavorable " retroactivity, this choice may take into account the significantpublic interest, to repair the legal of negative and flaws.Fourth, the theory retroactivity law’s influence factor analysis. Every mature theory,would have its own internal tension which can not overcome, the theory of retroactivity iswithout exception. Theoretical analysis of the three internal tension, helps to clarifywhether has retroactive, when have retroactive effect, which essential. Relying on the firstthree parts study, try to give three tension retroactive theory itself, the tension between theprotection of the rights and the realization of the rights,the tension between thedevelopment and stability of law, as well as the tension between procedural justice andsubstantive justice. I believe that if a country in the idea and system design emphasis onthe rights protection, on stability and procedural law, the country will largely tend the lawis not retroactive principles; Conversely, if a country’s concept and design emphasis on therelationship of right, on the development and substantive justice, then the country will bemore largely focus on the exceptions.