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Research on the Retroactivity of the Civil Law

Author: ZhangZhanFu
Tutor: GuoChunZhen
School: Xiamen University
Course: Legal Theory
Keywords: civil law rational retroactivity protective retroactivity
CLC: D913
Type: Master's thesis
Year: 2009
Downloads: 190
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Abstract


The retroactivity of civil law refers to the civil law can be applied to the fact that took place before the civil law takes affect.The reason of it having emerged is that the development of civil law lags behind the activities of the civil subjects,and the judgment of the civil case lags behind the changes of the civil law.According to different standards,the retroactivity of civil law can be divided into the retroactivity of the civil substantive law and the retroactivity of the civil procedural law,the favorable retroactivity and the unfavorable retroactivity,the constrained retroactivity and the protective retroactivity and so on.At the same time the retroactivity of civil law has different characteristics in different operating stages.Some foreign countries under the rule of law have a great deal of experience dealing with the retroactivity of law.The principle of Ex Post Facto prohibition originated in the Roman law.In the process of modernization,many countries made the principle more and more explicit and consolidated.In contemporary civil law countries,the retroactivity of civil law can be managed by more practicable measures. In the judicial precedents of common law countries,the judges put forward many modes of the retroactivity.In United States,scholars have proposed rational retroactivity and balancing test.These modes all consider the balance of the social benefit.In our civil legal practice,on the one hand we must adhere to the principle of non-retroactivity of law,on the other hand,we should consider using the public order and moral-maintaining retroactivity,protective retroactivity,analogical retroactivity, rational retroactivity.So we can protect the civil subjects’ rights more properly and maximize social welfare.When we deal with the retroactivity of the civil law,we should also consider the res judicata of the judicial decision and the integrity of the whole legal system.The retroactivity of the civil procedural law should follow the principle of applying new law retroactively.The retroactivity of interpretative law should depend on the effect of the interpreted law.We should consider the rule,the principle and the spirit of law in hard cases in order to solve the question of retroactivity.The retroactivity of the transitional provisions in civil law should be treated differently according to the need of the particular case.

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