以溯及既往的法律为对象,主要分析其概念内涵,指出其存在两种形式:回溯性法律和追溯性法律。前者并非通常所说的改变既往权利,而是回溯性地施加法律责任。后者通过“拟制”变成行为发生时已经存在的法律,从而与“不知法者不免责”的原则达成和解。前者从法律颁布时向后施加责任,后者从行为发生时施加责任,所以两者有着明确的区分界限,并非以往研究所说的同义替换。溯及既往的法律因为转型正义而需要重新认识,更需要处理它与法治之间的冲突。 With retrospective and past law as the object, this paper mainly analyzes the connotation of its concept and points out its existence in two forms: retrospective law and retrospective law. The former is not what is commonly referred to as changing previous rights, but applying retroactive legal liability. The latter, through “fictionalization”, becomes a law that already existed at the time of the act, and thus reconciles with the principle of “non-disclosure”. The former imposes its responsibility from the time the law is enacted, while the latter imposes its responsibility when the act takes place. Therefore, the two have a clear dividing line between them and are not synonymous substitutions in the previous studies. Retroactive laws need to be reconsidered for the sake of transitional justice, and more to deal with conflicts with the rule of law.