Extract
[...] Are the dangers of the retroactivity of a rule of law sufficiently limited? Subject: Are the dangers of the retroactivity of a rule of law sufficiently limited? In a speech prior to the publication of the first Civil Code, Jean-Étienne Marie Portalis will say «The office of laws is to regulate the future. The past is no longer in their power. Everywhere where the retroactivity of laws would be admitted not only would security no longer exist, but its very shadow What would become of civil liberty, if the citizen could fear that after the fact he would be exposed to being sought out in his actions, or troubled in his acquired rights, by a subsequent law. » To understand the problem posed, several notions need to be defined. [...]
[...] « If a new law is of immediate application, it cannot, without retroactivity, reach the effects of the definitively realized legal situation prior to it. For example, to determine the civil liability of the author of a traffic accident, the applicable law is that in force on the day of the accident and not a subsequent law adopted after the accident and in force on the day of the trial. Although the principle of non-retroactivity of the law is set in Article 2 of the Civil Code, this does not prevent the existence by nature of retroactive law. [...]
[...] On the other hand, in contractual legal situations, the Court of Cassation considers the principle of the old law. It justifies this choice by the principle of autonomy of will, in the case of a contract concluded between two parties, they concluded it with knowledge of the law in force at that same time. Thus, the new law will have no effect on the execution of the contract. The only exception is for social law, where the new law is considered public order since it is considered better; this is the case for the increase in the SMIC or paid holidays, for example. [...]
[...] A judgment produces a retroactive effect when it establishes or declares a situation that was latent, for example when it declares the nullity of a contract, a marriage or any legal act: the annulled act is considered to have never existed and the effects it produced must in principle be erased. A contract can also provide for a retroactive effect, subject to the rights of third parties. As for the rule of law, it is an expression designating any legal norm, whether it is of legislative, regulatory, customary or jurisprudential origin. As a rule, it presents a general and abstract character. As legal, it imposes itself and is accompanied by sanctions by the courts, opposing themselves in this to rules of another nature: moral, religious, social, etc. [...]
[...] Here is what the Senate published in its official journal on April regarding the retroactivity of this law, \"The Law No. 2002-303 of March relating to the rights of patients and the quality of the healthcare system, established a new compensation device for medical accidents, iatrogenic affections, and nosocomial infections, allowing victims who have suffered serious harm to be compensated free of charge and in a reasonable timeframe. The principle adopted consisted in providing that this device could be applied to medical accidents occurring as a result of prevention, diagnostic, or care activities that took place six months before the publication of the law. [...]
