关于程序法从新原则的几个问题

Some issues on retroactive application of procedural law

法不溯及既往是法治国家的标志之一,而程序法从新原则是法谚"实体从旧、程序从新"的具体体现。现代意义上的程序不仅指司法程序,还包括立法程序、行政程序和其他法律程序。根据传统溯及力理论,程序法的溯及对象应当聚焦在"正在处理的案件"上。在具体运用层面,程序法从新主要适用于管理性程序事项,而其例外情况一般针对于实益性程序事项、实体事项和既判事项。鉴于具体案件的复杂性,我们应当加强对程序法溯及力的法理梳理和条文细化。

Anti-retroactivity has been widely accepted in law-based countries. The principle that procedural law applies retroactively derives from a law proverb saying ＂substantive law applies prospectively, while procedural law retroactively＂. Legal procedures in modern sense not only refer to judicial procedure, but also include legislative, administrative and other forms as well. According to the traditional theory of retroactive effect, procedural law mainly applies to unclosed cases, with technical procedural matters in general, and due procedural matters, substantive matters and adjudged matters as an exception. As to the complexity of cases, more specific work should be done on the retroactive application of procedural law.