Das Zeitelement in der richterlichen Rechtsfortbildung – Einleitung zum Symposium - 10.1628/003372515X14274601496262 - Mohr Siebeck
Rechtswissenschaft

Jürgen Basedow

Das Zeitelement in der richterlichen Rechtsfortbildung – Einleitung zum Symposium

Jahrgang 79 () / Heft 2, S. 237-249 (13)

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Wherever the law changes it must be determined which fact situations and disputes are still governed by the old law and which are covered by the new. Legislation often deals with this question in transitional provisions of a new statute which may be very detailed. Where the change in the law is due to new orientations of judicial practice, the answer must be given by the courts. National traditions and the procedural framework may have an impact on the respective answers. The overall question splits into several sub-questions: Will a court confine the effect of its new case law to future cases, excepting the pending case from its judgment? Has the new orientation of the court a retroactive effect on analogous cases? To what extent will courts explain the change in jurisprudence by reference to statutes which have been adopted but not yet taken effect? This and the following papers dealing with these questions were presented and discussed at a comparative law conference held at the Institute on 14 June 2014.
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Jürgen Basedow is Director of the Max Planck Institute for Comparative and International Private Law and Professor of Law, University of Hamburg.