论法的溯及力的若干问题——关于法律不溯及既往的争议、实践、反思与主张

Several Issues on the Retroactivity of Laws——About the Argument,Practice,Reflection and Advocation on Non-retroactivity

法的溯及力问题背后是一个价值取向问题,由于法不溯及既往原则具有限制国家权力、保护公民权利的价值取向,作为法的溯及力的基本原则的地位不可动摇;例外溯及是法不溯及既往原则的有益补充。区分不同法律领域来确定例外溯及的界限,是解决法的溯及力问题的关键。

The paper presents a thorough review of the viewpoints on retroactivity of laws from various theoretical schools in history, and points out, based on a series of reflections of these viewpoints, that a question of value orientation exists behind the issue of retroactivity of laws. The very orientation lies in the fact that it restrains the power of state and protects the interests of citizens,which is of a firm position in the basic principles about retroactive effect. Exception retroactivity is a useful supplement for non - retroactivity. The key point to solve the issues on retroactivity of laws is to define the limits of exception retroactivity within different branches of laws.