Force of law
Under the force of law (or entry into force ) is the time of commencement of the effectiveness of a legal regulation understood.
General
The emergence of legal norms (such as laws or ordinances ) can be traced back to the legislative process that ends with the promulgation of the law. The later legal force is of importance for the legal effectiveness, because the norm addressees of the laws (e.g. the citizens ) must know whether their actions , toleration or omission are covered by a valid legal norm or not. In this respect, citizens enjoy the protection of legitimate expectations , which can be derived from the rule of law in Article 20 of the Basic Law . In addition, legal certainty arises when it is clear whether a new legal norm only has legal effects for the future and not also for the past. The legal question here is whether there is a general prohibition of retroactive effects or whether the legal principle of the ex nunc can help improve legal certainty.
Basically, laws want to have an effect in the future and only cover the newly established legal relationships, but not previously established legal relationships. According to Article 103 (2) of the Basic Law, the Basic Law only recognizes a prohibition of retroactive effects for criminal law , which, however, may not be extended to other areas of law . This makes it clear that legal norms can have retroactive effects outside of criminal law. It applies above all to circumstances in life that are considered to be permanent (such as marriage or housing law ), the effects of which cannot be assessed without exception and permanently according to the law of the time they arose. A law should therefore be able to be applied to all current life issues when it comes into force and therefore also covers issues that have arisen in the past. In the case of closed, already settled matters, an acquired legal position must not be diminished and the trust of the legal entities in the stability of legal regulations must not be unduly impaired.
The legal force and final force are comparable with the legal force and concern the legal validity of court judgments or administrative acts .
Legal issues
In everyday life, the force of law is the date on which a legal norm comes into force. In Art. 82 para. 2 of the Basic Law stipulates that every law and every ordinance shall determine the effective date. In the absence of such a provision, they come into force on the fourteenth day after the end of the day on which the Federal Law Gazette was issued. This constitutional norm also contains the procedural stages of legal force as constituent elements that must be strictly separated from one another. Then there is the creation of legal norms according to the provisions of the Basic Law, the countersignature by the Federal Government , the execution by the Federal President , the proclamation by publication in the Federal Law Gazette and the entry into force. The last stage, its entry into force, is decisive for the legal effect of legal norms.
The Federal Constitutional Court (FCC) is different in retroactive laws in settled case between laws with real repercussions that are always unconstitutional, and those with improper retroactivity , which are generally permitted. A legal norm develops real retroactive effect if it subsequently intervenes in a closed situation. This is especially the case if their legal consequences with onerous effect are to apply to facts that have already been concluded before the time of their announcement ("retroactive legal consequences"). There are exceptions if the regulation made can be expected and therefore no trust worthy of protection has arisen or there are compelling reasons for the general good . One speaks of spurious retroactive effect when a norm intervenes retrospectively on current, not yet concluded facts (the factual situation has already started) and the legal position is subsequently devalued.
The legislature can only determine or clarify the content of applicable law with effect for the past within the constitutional limits for spurious retroactive legislation. In its ruling of April 2018, the BVerfG made it clear in a legal question on trade tax liability that not only the introduction of a legislative proposal to the Bundestag, but also its submission to the Bundesrat can destroy confidence in the existing legal situation vis-à-vis a law with negative retroactive effect. The norm addressees must therefore observe the legislative procedure in their legal acts.
Legal consequences
Some laws contain their entry into force in the final provisions, for example § 28 1st BImschV , otherwise they come into force 14 days after publication of the Federal Law Gazette. The day on which it comes into force is included in the calculation of the deadline in accordance with Section 187 (2) BGB . If a life issue has already begun before it comes into force, the legal consequences of a new law have an effect on the life issue as part of the false retroactive effect. The new law really covers the issues of life that will only arise in the future. Judgments of the Federal Constitutional Court have the force of law in the cases of Section 31 (2 ) BVerfGG .
literature
- Literature on the force of law in the catalog of the German National Library
Individual evidence
- ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 681
- ↑ Heinz Hübner, General Part of the Civil Code , 1996, p. 26
- ↑ BVerfGE 7, 89 , 95
- ↑ Carl Creifelds, Creifelds Legal Dictionary , 2000, p. 1120
- ↑ BVerfGE 45, 142 , 167 f.
- ↑ BVerfGE 132, 302 , 318
- ↑ BVerfGE 11, 139 , 145 f.
- ↑ BVerfGE 127, 1 , 16 f.
- ↑ BVerfGE 123, 186 , 257
- ↑ BVerfG NJW 2014, 1581
- ↑ BVerfG, judgment of April 10, 2018, Az .: 1 BvR 1236/11 = NJW 2018, 1379
