What does it mean that the law is not retroactive?
Every day new laws are adopted, which come into force either from a certain date, or upon the occurrence of a certain event, or from the moment they are signed. But do they extend their effect to relationships that took place before the adoption of the new law - after all, at that time there was no normative act?
The answer to this question becomes obvious after familiarization with two main legal postulates.
- According to the first, the law applies only to those relationships that emerged after it came into force.
- The second states that if the relationship is long-term (for example, a long-term lease agreement), then it is regulated by the act in force at the time the relationship arises (in the example given, at the conclusion of the lease agreement).
Meanwhile, the above postulates are only a general rule that does not always apply. The legislator also stipulates cases when the law has retroactive effect, i.e. extends the effect to the time period before its adoption.
For example, the normative act itself may indicate that it applies to relations that took place before its adoption.
The second exception concerns laws that improve the situation of the persons to whom it applies. We are talking about cases of repeal of articles of the Criminal Code of the Russian Federation that provide for criminal prosecution for various crimes. In this case, crimes that were committed before the enactment of such a law are also decriminalized. A similar rule applies to amendments to the Code of Administrative Offenses of the Russian Federation that improve the situation of offenders, or amendments to the Tax Code of the Russian Federation.
Retroactive application of the law
If a criminal procedural law is adopted that has retroactive effect on the complete decriminalization of an act, the case is closed at any stage of the proceedings, including the preliminary investigation. If this law came into force after a court decision was made, it is not canceled for lack of corpus delicti, but the convicted person is released from punishment. When mitigating liability, the court (including the cassation and supervisory authorities) takes into account the new provision when passing a sentence. The prescribed measures are reduced in accordance with the new regulations.
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Constitution of the Russian Federation on the retroactive force of the law
The Constitution of the Russian Federation is the fundamental law of the country. It contains fundamental rules regarding the operation of Russian laws over time. Such rules are enshrined in Art. 54 of the Constitution.
As a general principle, a law that imposes liability for acts or omissions that previously did not exist, or increases the level of liability for acts or omissions that occurred before the enactment of the new law, does not have retroactive effect. Thus, according to this postulate of the Constitution of the Russian Federation, the law does not have retroactive force.
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But there is also a second postulate, which is reflected in Part 2 of Art. 54 of the Constitution of the Russian Federation. No one should be punished for actions that were not recognized as an offense or crime at the time they were committed, even if they are illegal under the new law. The rule is supplemented by the statement that if, after the commission of actions or inaction, liability for them is abolished, or has become more lenient, on the basis of a new law, then it applies exclusively.
Article 4 of the Civil Code of the Russian Federation. Effect of civil legislation in time (current edition)
1. The commented article establishes a general rule for the operation of civil legislation over time, according to which acts of civil legislation do not have retroactive force and apply to relations that arose after their entry into force.
As an exception, acts of civil legislation may be given retroactive force. Retroactive force is given to civil laws, as a rule, in order to protect the rights and interests of citizens. Therefore, in individual cases provided for by federal law, its norms may regulate relations that arose before its entry into force. Thus, the norms of Part One of the Civil Code of the Russian Federation on the grounds and consequences of the invalidity of transactions (Articles 162, 165 - 185 of the Civil Code of the Russian Federation) apply to transactions, the requirement to invalidate which is considered by the court after January 1, 1995, regardless of the time the relevant transactions were made.
2. In paragraph 2 of the commented article, a general rule is established that for relations that arose before the entry into force of an act of civil legislation, this act applies to the rights and obligations that arose after its entry into force.
However, there are exceptions to this rule. We are talking about civil legal relations in which the moment of their occurrence does not coincide with the moment of occurrence of the rights and obligations arising from them. An example is inheritance legal relations that arise at the time of the death of the testator, and the specific rights and obligations of the heir arise after a certain period of time (usually after 6 months).
Thus, if a new legal act is adopted and put into effect within a six-month period, then it is this act that will apply to the rights and obligations of the heir after entering into an inheritance.
It also makes reference to Art. 422 (see commentary to it), which talks about the relationship between contract and law. So, in paragraph 2 of Art. 422 states that if, after the conclusion of an agreement, a law is adopted establishing rules binding on the parties, but different from those that were in force at the conclusion of the agreement, the terms of the concluded agreement remain in force, except in cases where the law establishes that its effect extends to the relationship arising from previously concluded agreements.
Comment source:
“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"
S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019
Explanations
The rules on the retroactive force of criminal law are based on the provisions of paragraph 2 of article 11 of the Universal Declaration of 1948, art. 7 of the 1950 Convention, paragraph 1, art. 35 of the Declaration of 1991. Their constitutional and legal interpretation is contained in some decisions of the Constitutional Court, which are generally binding throughout Russia.
The principle of retroactive force of criminal law is formulated as imperative. It is addressed, first of all, to the state, on whose behalf various bodies and structures act, including the courts, designed to ensure the implementation of the guarantees enshrined in the Constitution.
Key characteristics of the principle
Within the framework of the scientific and practical interpretation of the retroactive force of the criminal law, a number of features of this principle can be identified. This is a legal phenomenon:
- It has international legal and constitutional foundations for the level of guarantee of human and civil freedoms and rights, which form the basis of the legal status of the individual, the limitation of which is unacceptable.
- Associated with all principles of legal proceedings, especially the equality of subjects before the law and justice. It refers to the Special and General parts of the Criminal Code, transitional provisions regulating the procedure for putting laws into effect. The problem of the retroactive force of the law in criminal law permeates almost all of its institutions and norms: from the removal and expungement of a criminal record to criminalization.
The principle enshrined in Article 10 of the Criminal Code is applied in the relevant criminal procedural forms at all stages of legal proceedings, regardless of the will and petitions of the applicant. At the same time, the order of operation of the law over time corresponds with the provisions on the operation of other sectoral legal acts, including taking into account the blanket character (referential nature) of some norms of the Criminal Code.
Conditions of use
The retroactive force of a legislative act as excluding crime occurs if:
- The act is completely decriminalized.
- The age of responsibility is raised or the list of crimes for which sanctions are provided for a person who has reached a specific age is reduced.
- Limits the number of subjects found guilty of an assault.
- It interprets the concept of insanity more broadly (for example, in Part 3 of Article 20 of the Criminal Code there is the term “age-related insanity”).
- Reduces the number of crime subjects. For example, Federal Law No. 162 of 2003 and Federal Law No. 73 of 2004 excluded smooth-bore civilian firearms, as well as their main elements and ammunition from norm 222 of the Criminal Code; Article 135 of the Code (in the first edition) established liability for committing indecent acts only in relation to 14-year-old citizens, and not in general to minors, as previously provided.
- Narrows the spatial limits of the place where the act was committed.
- Excludes any alternative form of criminal activity or method of committing the act. For example, Federal Law No. 162 decriminalized the illegal carrying/purchase of bladed weapons (including throwing weapons) and gas weapons.
- Eliminates any alternative consequences from the material composition. For example, the same Federal Law No. 162 repealed the provisions on moderate harm in norms 266-269, 264, 216, etc.
- Eliminates one form of guilt, alternative motive or purpose of the act.
Decriminalization
It can be partial or complete. Decriminalization can be carried out by changing the provisions of the norms not only of the Special, but also of the General Part. For example, new circumstances may be introduced that exclude the criminality of a person’s behavior, the concept of complicity may be narrowed, and liability for preparation for a crime or unfinished assault may be limited.
Decriminalization can also be achieved by:
- repeal of regulations from other industries that were referenced in the blanket norm;
- limiting the scope of regulation of criminal norms due to the recognition of the act as not representing a danger to society and, therefore, entailing an administrative or other milder sanction.
Partial decriminalization can take place by reducing the characteristics of the composition or by maintaining the blanket disposition of the norm without changes when adjusting positive legislation, violation of the provisions of which entailed criminal punishment.
Explanations on this issue were given by the Plenum of the Supreme Court in Resolution No. 23 of 2004. The court indicated that if the Federal Law excludes the corresponding type from the list of types of activities, the conduct of which is permitted only with a special permit, there are no signs of composition in the actions of the entity engaged in it, enshrined in Article 171 of the Criminal Code
Analogy in civil law of the Russian Federation
In cases where the relations included in the subject of civil law are not regulated by legislation or agreement of the parties and there is no business custom applied to them, civil legislation regulating similar legal relations (analogy of law) is applied to such relations, if this does not contradict their essence (Art. 6 Civil Code).
Union of Consumer Societies of the Republic of Mari El for violation of constitutional rights and freedoms by the provisions of Article 4 of the Civil Code of the Russian Federation, Article 6 of the Housing Code of the Russian Federation, Article 5 of the Federal Law “On the Entry into Force of Part One of the Civil Code of the Russian Federation”, Article 5 of the Federal Law “On the entry into force of part two of the Civil Code of the Russian Federation" and Article 5 of the Federal Law "On the entry into force of the Housing Code of the Russian Federation".
If it is impossible to use an analogy of law, the legal relations of the parties are determined based on the general principles and meaning of civil legislation (analogy of law) and the requirements of good faith, reasonableness and fairness (clause 2 of Article 6 of the Civil Code). The general principles of civil law mean the principles of civil law set out in Art. 1 GK. The meaning of civil legislation is revealed by applying various methods of interpretation to it.
Margin of Discretion
Many experts who analyze examples of the retroactive force of criminal law refer to the application of the provisions of Article 10 of the Criminal Code as a problem of discretion. It is associated with the relationship between the discretionary and imperative elements of a court decision, the identification of factors that narrow or, on the contrary, expand the scope of choice.
The criminal legal basis of the limits of discretion forms about 100 restrictions, enshrined in both the Special and General Parts. In addition, there are legal proceedings and other restrictions.
Discretion is considered a necessary element of any judicial system. It is recognized as a non-alternative imperative function of authorities, based on recommendatory and mandatory domestic and international norms and laws of thinking.
Civil legislation and sources of civil law
In accordance with Article 71, paragraph “o” of the Constitution of the Russian Federation, civil legislation falls under the exclusive jurisdiction of the authorities of the Russian Federation; the authorities of the constituent entities of the Russian Federation and local governments cannot adopt regulations containing norms of civil law. Article 3 of the Civil Code of the Russian Federation for the first time gives a comprehensive concept of civil legislation: it includes only
Civil Code of the Russian Federation and other federal laws regulating civil law relations. Civil legal relations can be regulated by Decrees
of the President of the Russian Federation, Decrees of the Government of the Russian Federation and acts of federal ministries and departments, but these by-laws and the norms contained therein are not part of civil legislation, but can regulate civil legal relations only in cases and in the manner provided for by the Code, other federal laws or Presidential Decrees .
In addition to laws and by-laws, the sources of civil law include:
1) Generally recognized principles and norms of international law, set out in international agreements to which the Russian Federation has acceded.
2) International treaties concluded by the Russian Federation with other subjects of international law and ratified in the prescribed manner.
3) Customs (Article 5 of the Civil Code of the Russian Federation)
Literally, in paragraph 2 of Article 3 of the Civil Code of the Russian Federation, civil legislation includes only:
- Civil Code;
- Federal laws adopted in accordance with it.
This means that civil law issues are determined and mainly regulated by federal legal acts.
There are problems regarding civil legislation in our country that require further development and solution. One of these issues is judicial precedents. Highly qualified work of lawyers is an activity strictly based on the law and at the same time taking into account the experience (practice) of applying the law. It is generally accepted that this experience is expressed in legal provisions, enshrined, as a rule, in acts of higher judicial authorities (in particular, in decisions of the Constitutional Court of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation). At the same time, there are grounds, in accordance with international experience, for recognizing judicial precedents as such as sources of civil law - examples of legal solutions to unique cases of life, which are taken as the basis for resolving similar cases of life by other courts.
Another problematic issue is contracts. In accordance with the principle of discretion, contracts in civil law are not only a legal fact, but also a source of rights and obligations for these subjects. In this respect, they are categories close to the sources of law. In a number of cases, agreements may continue to be valid in situations where a law is issued on the relevant issue (if. It is clear that the law does not apply specifically to these specific relations - clause 2 of Article 422 of the Civil Code of the Russian Federation).
Custom
Custom, having gone beyond the boundaries of entrepreneurial activity since 2013 (allowed as a source as “business custom”), becomes, along with natural law and law, a positive full-fledged source of civil rights and obligations. The main requirement for custom as a source of law is that it be recognized as established and widely applied (repeated) in all respects that constitute the subject of civil law regulation.
Law enforcement practice, for example, recognizes the generally accepted practice of installing outdoor signs indicating legal entities as custom.
