作者：刘国乾
作者介绍：云南大学法学院副教授，法学博士
出版日期：2018年10月9日
内容提要 过渡法是解决新旧法冲突、确定新旧法效力范围、指引特定法律关系援用新法或旧法的法律适用规范。特定法律关系过渡法规则的确定,首先在于明确客观的"连接点",然后根据"连接点",运用形式逻辑,或进一步展开价值取舍与利益衡量,来确定选择新法或旧法予以适用。指引损害救济选择新旧法的"连接点",是对损害事实进行认定的确认型行政行为或司法行为,产出的"请求权—义务"关系所造就的"待决法律状态"。基于该"连接点"的损害救济过渡法规则,是新法即行适用。这首先是基于待决法律状态,因法律效果未确定有待法律进一步评价而从属新法效力范围的形式逻辑判断;其次是新法优越的实定法"进化论"推定、法律适用统一性的价值追寻的结果。过渡法规则的确定,区别于经原则衡量,适用优先原则获得个案实体裁判规则的方法。
关键词 新旧法冲突 过渡法 损害救济 新法即行适用
Abstract: The transitionary law is the legal norm guiding how to choose new or old laws for application, which resolves conflicts between the old and new laws, determines the scope of validity of new and old laws. The first task is to clarify the objective "connection point" and then use the formal logic according to the "connection point", or to further expand value choice and interest measurement to determine whether to choose the new law or the old law to apply. The "connection point" that guides the selection of the new or old law for damage remedy, is a "pending legal status" created by the affirmative administrative or judicial act to identify damage fact, which confirms a "rights-duty" relation between the parties. Based on the "connection point", the transitionary rule for damage relief is immediate application of new law. Firstly, this is based on the formal logical judgment that the pending legal status, subordinates to the scope of validity of the new law, because the legal effect has not been yet determined and further law application shall be needed. Secondly, it mainly stems from the presumption statutory law "Evolution" that new law is more superior to the old, and the value of equal application of law. The determination of the transitionary rule is different from the approach of obtaining substantive rules by applying the priority principle after principle measurement.