What is Retrospective Effect?

Retrospective effect is a type of legal effect of normative legal documents. In this context, the effect of normative legal documents is considered the enforcement of the document within a certain period, in a specific space, and for certain legal subjects.

In principle, Vietnamese criminal law does not have retrospective effect. This stems from the principle of legality “nullum crimen sine lege” which means no crime without law. According to this principle, criminal laws are only enforced against crimes committed when the law is in effect and before that law loses effect. If the act was committed before the law existed, that law cannot be applied to hold the perpetrator criminally liable.

However, for humanitarian reasons, when the new law's provisions are more lenient than the old law and there is a necessity to protect the state's social interests and citizens' benefits, the application of retrospective effect is essential. Nevertheless, the application of retrospective effect is limited to a few cases.

According to the provisions of Clause 2, Article 152 of the 2015 Law on Promulgation of Legislative Documents, retrospective effect does not apply to the following cases:

- Imposing new legal responsibilities for acts that, at the time of commission, the law did not provide for legal responsibility;- Imposing heavier legal responsibilities.

Furthermore, normative legal documents of the People's Council, the People's Committee at all levels, and local governments in special administrative-economic units are not allowed to stipulate retrospective effect.

In the current criminal law, there is no provision for retrospective effect of new laws that are not beneficial to the offender. Only new laws that are beneficial to the offender apply retrospectively. Specifically: Clauses 2 and 3, Article 7 of the Penal Code stipulate as follows:

"A legal provision that defines a new crime, imposes a heavier penalty, introduces new aggravating circumstances, or limits the scope of application of suspended sentences, exemption from criminal liability, exemption from punishment, commutation of punishment, expungement of criminal records, and other provisions not beneficial to the offender, shall not apply to acts committed before the law takes effect."

"A legal provision that abolishes a crime, penalty, aggravating circumstance, imposes a lighter penalty, introduces new mitigating circumstances, or expands the scope of application of suspended sentences, exemption from criminal liability, exemption from punishment, commutation of punishment, expungement of criminal records, and other provisions beneficial to the offender, shall apply to acts committed before the law takes effect."

Thus, the stipulation and application of retrospective effect is a principle reflecting the humanitarian nature of our State.

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