Publication details
Předvídatelnost, retroaktivita a zpětné působení práva
| Title in English | Predictability, Retrospectivity and Retroactive Effects of the Law |
|---|---|
| Authors | |
| Year of publication | 2016 |
| Type | Article in Periodical |
| Magazine / Source | Právník |
| MU Faculty or unit | |
| Citation | |
| Web | Repozitář MU |
| Field | Law sciences |
| Keywords | Intertemporal law; retrospectivity; proportionality; legal principles; retroactive effects of the law; case-law of the Constitutional Court |
| Attached files | |
| Description | The author deals with the principle of retrospectivity in connection with the retroactive effects of the law. The author assumes that the set of intertemporal provisions is a set of legal principles that are specific because of their approximate nature. For this reason it is possible neither to interpret nor to apply intertemporal norms as a simple (basic) law, but with the sui generis test of proportionality in order to assess the legislative intent, the means chosen by the legislator and compare the both with “a disappointed trust in the rule of law”. Based on the analysis of the relevant case-law of the Czech Constitutional Court, the author concludes that the traditional distinction between direct (Echte Rückwirkung) and indirect retrospectivity (Unechte Rückwirkung) is obsolete, since in specific cases the difference between “generally inadmissible direct retrospectivity” and “individually inadmissible indirect retrospectivity” (i.e. disproportional breach of the trust in the rule of law) is blurred. The author therefore proposes to distinguish only the permissible and impermissible effects of the law. |