The application of law

The main purpose of these interpretations is to apply the law. A law is created in order to be applied for a certain period of time, in a certain territory, to a certain category of people. We may speak about the application of the law from three approaches: in time, in space, to people.

The application of the law in time. There are some very old laws (our Civil Code) but even they are going to be repealed. A law is not in forced forever. In order to establish whether a certain law is enforced or not we have to seek the exact moment of entering into force and the exact moment of the end of the law’s application.

The enforcement of law means that the president signs the draft of law as it was approved by the Chambers and the Parliament, then orders its publication. The law enters into force after 3 days from the moment of its publication in the Official Monitor of Romania. It may also enter into force later on a further date. In such a case the date of entering into force has to be mentioned expressly within the content of the law. From the date of entering into force the law becomes compulsory and is presumed to be known by everybody. Nobody can pledge ignorance in front of the court of law.

The application of the law usually ends by its repeal (abrogation). The repeal may be express or implicit. The express abrogation occurs when new law expressly specifies that the application of a specific law has come to an end. The express abrogation may be:

Direct, whenever the new law mentions which laws or the articles of a particular law are repealed.

Indirect, whenever the new law provides that any contrary rules to the new one are repealed.

The law provides for a certain period of time between the moment of its entering into force and the moment when its application comes into an end.

Some juridical relations are concluded during a certain law, are modified during another law and are put to an end during another law. Under these circumstances which law should apply to the entire relationship? There are 2 principles which apply in this matter: the principle of non-retroactivity of the law, the principle of immediate application of the law.

1. The principle of non-retroactivity of the law. The law should not operate retrospectively

OLD LAW │NEW LAW

A person cannot rely on the ignorance of the law. A person is required to obey the law. It follows that he/she should be able to trust the law and that it should be predictable. A law which is modified retrospectively cannot be predicted. It is therefore likely to be unjust. According to the first article of our Civil Code the law disposes only for the future, it has to retroactive power.

This rule is provided by the Constitution as well. In this matter the Constitution provides that the law disposes only for the future except the more favorable criminal law. If a person committed a certain crime, normally the judge is taking into account the law enforced at the moment the crime was committed. By exception from the principle of non-retroactivity of the law, if during the trial

the law is changed and another law, more favorable comes into force the judge will take into account this new law and not the one enforced at the time the crime has been committed.

In conclusion, any person has to obey the existing law, meaning that the law enforced in this very moment and the law which is presumed to be known, and not to obey the future law. The only exception is the case of the more favorable criminal law.

The principle of non retroactivity of the law is expressly provided in the Constitution. It means that no ordinary law could disregard it.

2. The principle of immediate application of the law.

This principle is symmetrical of the first one. A law should never apply to the facts or events occurred after it ends. From the moment when the new law comes into force it is immediately applicable and the old law ends all its effects.

The principle of immediate application of the law is only a principle of juridical logic. It isn’t provided in the Constitution. In some cases the legislator may and does disregard it. In the most important issues, the new law disposes that some fields will still be provided by the old law for a certain period of time. Such situations are known as ultra-activity of the law.