engleski

Civil Procedural Aspects of Retroactivity – Historical and Comparative Perspectives

In this paper the author examines the role of rule against retroactivity, as one of basic legal principles, in civil procedure from the Roman law to the jurisprudence of European Court of Human Rights. It is centered on the analysis of rule tempus regit actum, starting from its development in the Middle Ages, on the basis of Roman legal texts, as the medieval authors started to elaborate procedural rules, ordinatoria litis, separately. In the discussions of these authors of pending legal affairs ordinatoria litis were expressly held to have immediate application in pending lawsuits. Although there were some breaks in continuity, taking into account the influence of the theory of vested rights in literature, the immediate application as a part of the prospective principle has remained the constitutive part of intertemporal rules in procedure. This has been equally well recognized in the case law of the European Court of Human Rights which is discussed in the last part (before the conclusion) of the paper.

civil procedure ; retroactivity ; ECtHR ; ECHR ; Roman law ; Civil Procedural Law ; human rights ; tempus regit actum

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