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The Question of Appropriate Retroactivity in Civil Law

Social Sciences in China (Chinese Edition)

No.5, 2015

The Question of Appropriate Retroactivity in Civil Law

(Abstract)

Fang Shaokun and Zhang Hongbo

 

Retroactivity in civil law leads to disregard for the law. As retroactivity infringes on personal freedom and detracts from the authority of the law, leaving it virtually equivalent to the rule of man, it is prohibited in modern nations governed by the rule of law. In judging whether civil law is retroactive, the criterion should not simply be its infringement on vested rights, nor should it cover restriction of rights. Rather, the criterion for judgement should be actions and natural facts. In exceptional cases civil law can be retroactive, when it benefits the parties concerned, is corrective in nature, and concerns public order and morality. Whether newly enacted civil law or civil law that has not yet taken effect and the citation of regulations and judicial interpretations are retroactive should be determined on the basis of the circumstances.