“The law has no retroactive force” - many law students and even schoolchildren in specialized subjects have heard this concept. However, its meaning was understood the first time by units. In order to understand what constitutes the reverse force of the law, it is necessary to break the question down into several constituent elements. So, this principle is present in any branch of law; therefore, for specific consideration and examples, it is important to pay attention to a specific area, for example, criminal law.
Basis: definition
In order to understand the question "What does it mean: the law is not retroactive? ”, It is important to consider the concept of this phrase. It refers to the revision force of the norm. This means that the reverse, as a legal term, presupposes the effect of the law on those social relations that fall under the scope of regulation, are subject to fixed norms, and also arose before the regulatory document began to operate. A special category in this case is time, which determines the occurrence of an action or inadmissibility of normative regulation by legal norms.
Revision of the norm means the possibility of revising the article in accordance with the law that was in force before the adoption of the act.
The role of principle
Earlier in this article, examples of consideration were discussed. Since we decided on criminal law, in the Criminal Code of the Russian Federation you will not find the phrase "the law has no retroactive force." This is quite logical and reasonable.
In any legal institution, the legislator lays down a set of principles on the basis of which the content of the articles is developed, and new ones are added. The retroactive effect of the law in this code, which has the status of federal law, is proclaimed as a fundamental principle. As an example, the possibility of disseminating the legal norms of a new law of an act committed before the publication of qualitatively new norms is given.
Scientific justification of the principle
Understanding the question of whether the law is retroactive, it is important to turn to the origins of its origin. The philosophical and legal aspect suggests that humanism was laid in the foundation, that is, love for a person. In the legal sense, humanism is a set of requirements that people impose on the state when they carry out norm-setting and norm-applying activities. The principle of humanism in many respects determines the level of protection and protection of the legal status of the individual in the state.
There are a number of scientific points of view of legal scholars. The most popular of them boils down to the fact that the retroactive effect of the law should be in the preamble of the act establishing criminal penalties. You can agree or deny this opinion, however, along with other fundamental norms should be the presumption of innocence, the rule of law and the aforementioned humanism.
The content of the article of the Criminal Code of the Russian Federation
According to the criminal law, the law does not have retroactive effect only in case of deterioration of the legal status of the convicted person. For example, if the sanction of an article is increased for a crime for which a court conviction has been passed, then the term of the convict is not added. This rule would be contrary to all humane postulates of criminal and penal law.
Clarification of the effect of the law will be possible through a clear examination of the parts of Article 10 of the Criminal Code of the country, which states that the rules that improve the position of a person in any way apply at the time the law comes into force. This rule applies not only to those who are serving a sentence, but also to suspects, accused, as well as to those who have served their sentences, but who have an outstanding conviction.
An exception is contained in the same article, which says that the law has no retroactive effect only in the event of an increase in punishment or deterioration of the status of a prisoner in another way. Please note that this rule is not subject to any exceptions!
Retroactive force as a constitutional provision
The principle under consideration is enshrined not only in criminal law, but also in a number of other norms. The main law of the state, namely the Constitution of Russia, enjoys special priority.
The constitutional law of the Russian Federation says that the retroactive effect of the law is a guarantee for citizens, as well as the principle in the activities of municipalities and state bodies. As an example, they cite the provisions of the Criminal Code of the Russian Federation, which regulate sanctions for the crime committed by the state authorities in their activities - addressing the issue of guilt or innocence of a person, as well as the appointment of a certain type and amount of punishment.
Section 54
The law of a higher power establishes the possibility of applying retroactive force in article 54. This norm says that a law that aggravates liability or establishes it again has no retroactive effect.
As for the mitigation of liability, the exact opposite rule applies here: legal norms apply despite the fact that the offense can be committed even before the birth of the new law. This means that those guilty of wrongful acts smiled on luck.
A striking example of such luck is the adoption of new legislation after the collapse of the Soviet Republic. So, the criminal article for speculation was abolished, respectively, all persons who were serving sentences in places of detention, as well as those who had a criminal record, all legal consequences of the criminal prosecution ceased. Constitutional law of the Russian Federation is also based on numerous principles that have been approved by popular vote, among which the principle of humanism is given an important place.
About civil law
Which law is retroactive, and which norms lack such privilege, the legislator decides. A striking example is the Civil Code of the Russian Federation. In Art. 4 expressly indicates that this act has no retroactive effect.
The only exception is realized only when the possibility of applying the published law to previous social relations is expressly provided for in the article.
Retroactive Examples
In order to clarify the material, it is necessary to reinforce the theory with relevant examples, namely:
- In the case of decriminalization of acts, the convicted person is immediately released from serving his sentence for decriminalized crime.
- The abolition of the death penalty is also a prime example of the retroactive effect of the law. If a person has been sentenced to death, but the court’s decision has not been enforced, then the death penalty shall be commuted to a convicted person for life imprisonment.
- If the contract was concluded under the old legislation in civil law, but the new rules change its effect, then such relations are regulated exclusively by the old legislation, since in most cases retroactive force is not provided for in the Civil Code of the Russian Federation. As mentioned earlier, the only exceptions are those facts when the indication of the retroactive effect is expressly provided for in the law.
