Protection of ownership of stolen excavated cultural relics--Comments on the case of Tianshui Chengji Museum
Date：2022/02/20 16:18:55
Since 2018, the Tianshui Chengji Museum has been charged with concealing the proceeds of crime by purchasing excavated cultural relics from tomb robbers, which has drawn wide attention from the cultural relics and museum circles. The museum and its director were convicted by the first-instance court and was exempted from criminal punishment, which aroused fierce discussion in the museum circle. In July 2021, the second-instance court remanded the case; In September 2021, the persecutor issued a decision not to prosecute, believing that the actions were significantly minor, and decided to withdraw the prosecution and returned the seized cultural relics to the relevant parties. In this case, the ownership protection of the cultural relics involved in this case deserves further attention.
The cultural relics involved were excavated and owned by the state
According to the fact confirmed in related legal documents, the cultural relics involved were excavated from ancient tombs in Baqiao District of Xi'an city by tomb robbers, who sold them to the dealer and then sold them to the museum. Therefore, it could be confirmed that the cultural relics involved were excavated from China. Article 5 of Cultural Relics Protection Law of PRC says that " Sites of ancient culture, ancient tombs and cave temples shall belong to the state." Therefore, the excavated cultural relics in this case shall belong to the state. Article 242 of Civil Code of PRC says that " Where an immovable or movable property is provided by law to be exclusively owned by the State, no organization or individual may acquire ownership of it.” Article 5 of Cultural Relics Protection Law of PRC says that " Ownership of state-owned unmovable cultural relics shall not be changed as a result of the change of ownership of or use right to the land to which the cultural relics are attached." Therefore, the state ownership of the excavated cultural relics shall not be changed by their being excavated or resold. Even if the director of the museum purchased them from a legitimate cultural relics exchange at a reasonable price, the state ownership of these cultural relics could not be changed, and the purchaser could not obtain the ownership of the cultural relics involved.
Tianshui Chengji Museum's purchase act of the cultural relics involved should be invalid
Article 51 of the Cultural Relics Protection Law says: "Citizens, legal persons and other organizations may not trade any of the following cultural relics: (1) State-owned cultural relics, except those of which trading is permitted by the state.” In this case, the excavated cultural relics were owned by the state and cannot be traded. In accordance with Article 153 of the Civil Code of PRC, civil juristic acts in violation of compulsory provisions of laws and administrative regulations shall be invalid. The provisions of Article 51 of the Cultural Relics Protection Law on cultural relics that cannot be bought and sold are compulsory provisions of the law. Therefore, the purchase act of cultural relics involved by the museum was invalid, and the purchase had no legal binding force since the beginning.
Some people believed that the cultural relics involved were purchased from the "Datang West International Antique City" approved by local government. They thought that since the cultural relics were purchased from a legitimate trading place, the transaction was legal. However, "Datang West International Antique City" just offered a place for artwork trading. The sellers in it included both the legitimate cultural relic shops and illegal cultural relic traffickers. Besides, Article 55 of Cultural Relics Protection Law says " Except the approved cultural relics shops or auctions enterprises engaging in cultural relics auctions, no other entity or individual may engage in the business activities concerning cultural relics. " Thus, the commercial activities without the approval of the government in "Datang West International Antique City " cannot be protected by law.
Cultural relics administrative departments shall confirm the state ownership of the cultural relics involved
Based on the above analysis, the buyer of the cultural relics involved in this case purchased the untradable state-owned excavated cultural relics. Regardless of whether it knew the cultural relics involved were excavated by thieves or not, the cultural relics administration departments shall confirm and protect the state ownership of the cultural relics involved. In accordance with Article 71 of Cultural Relics Protection Law and Article 39 of the Regulations on Museums, the administrative departments in charge of cultural relics shall order correction and confiscate the illegal gains; Museums that acquire collections of unknown or illegal origin shall be ordered to make corrections, their illegal gains shall be confiscated and a fine shall be imposed. In this case, if the purchaser knew that the cultural relics involved were excavated by thieves, but still bought them and placed them in the collection, there is no doubt that the purchaser should be punished in accordance with Article 71 of the Cultural Relics Protection Law. The related departments should not only confiscate all the cultural relics involved in the excavations, but also impose fines on purchaser. If the purchaser did not know and could not know that the cultural relics involved were stolen cultural relics, which was sufficient to prove that there was no subjective fault in the transaction, they may be exempted from administrative punishment. However, the state ownership of the cultural relics involved should still be confirmed and protected, and should be recovered by the cultural relics administration departments of Shaanxi Province, rather than acquired and exhibited by the Museum. In this case, the act that prosecutor returned the detained cultural relics to the museum may infringed the state ownership of these cultural relics.
Protection of the rights of cultural relics purchasers
In this case, although the purchase act was invalid due to the violation of compulsory provisions of the law, but this did not mean that the purchaser's rights cannot be completely protected. Article 157 of the Civil Code of PRC stipulates: " Where a civil juristic act is void, revoked, or is determined to have no legal effect, the property thus obtained by a person as a result of the act shall be returned, or compensation be made based on the appraised value of the property if it is impossible or unnecessary to return the property." If the purchaser did not know and could not know that the cultural relics involved were excavated and robbed, and had exercised due diligence (such as purchasing the cultural relics at legitimate cultural relics trading places, carefully investigating the source of the cultural relics, and purchasing them at a reasonable price), the purchaser shall be compensated for the loss of expenditure incurred in purchasing the cultural relics. However, if the purchaser knows that the cultural relics involved are stolen excavated cultural relics, or knows that the seller is engaged in tomb robbing, but still buys cultural relics, it should be considered that the purchaser has the subjective intention of illegally purchasing cultural relics, and the loss cannot be compensated. If the purchaser does not know that the cultural relics involved are unearthed cultural relics, but fails to exercise due diligence in the transaction (such as failing to investigate the source of cultural relics seriously, or buying cultural relics at an unreasonable low price, etc.), the fault is thus relatively minor, and the seller shall bear a certain proportion of the property loss.
Suggestions for purchasers of cultural relics
Although the purchaser in this case were ultimately determined not to constitute a crime, the museum and collection circles still expressed concerns about the legality of the purchase and collection of cultural relics in private collections. Collectors may find it difficult to identify the origin of cultural relics, and the cultural relics in the transaction are not always authentic. However, the purchasers and collectors of these cultural relics have reasonable ways to avoid legal risks. If the purchaser has exercised due diligence in the transaction of cultural relics, the loss can be minimized even if the cultural relics are banned from transaction. Based on relevant laws, regulations and international conventions, buyers of cultural relics should pay attention to the following aspects in cultural relics transaction to fully protect their rights and interests.
First, to purchase cultural relics at places permitted by law. Article 50 of Cultural Relics Protection Law clearly stipulates five ways to obtain cultural relics legally, which are: (1) Legal inheritance or accepting donations; (2) Purchasing from cultural relics shops; (3) Purchasing from enterprises undertaking cultural relics auctions; (4) Exchanging or transferring cultural relics legally owned by individual citizens pursuant to law; (5) Other legal methods provided for by the state. The establishment of cultural relics shops and auction enterprises must be approved or permitted by cultural relics administrative departments, and their business activities are strictly regulated by laws. Each transaction must be filed with cultural relics administrative departments after completion, so their credibility is strong. It should be pointed out that Cultural Relics Protection Law has not yet granted the antiques market the legal status of cultural relics trading, because Article 55 of the Law emphasizes that " Except the approved cultural relics shops or auctions enterprises engaging in cultural relics auctions, no other entity or individual may engage in the business activities concerning cultural relics. Therefore, the commercial acts of the cultural relics sellers in the antique market are not protected by the current law. Buyers need to be very careful when purchasing objects from the antiquities market.
Second, to make seriou investigation on the origin of cultural relics. Although purchasers are limited by their own capabilities and may not be able to fully understand the origin of the cultural relics, purchasers should still fulfill their obligations of careful inquiry or investigation within their capabilities. Especially for non-state-owned museums, it is a legal obligation to investigate the provenance of cultural relics. Article 21 of the Regulation on Museums says " Museums may obtain collections by the ways prescribed by laws or administrative regulations including purchasing, acceptance of donations or lawful exchange, and shall not obtain collections from unidentified or illegal origins", Article 39 also specifies the legal responsibility of obtaining illegal collection. If the museum neither purchase the cultural relics from the legitimate purchase entity, nor does it carefully investigate the source of cultural relics, it will bear legal risks. In particular, when buyers or collectors discover that the cultural relics are state-owned, they should report to the cultural relics administration department timely and should not purchase or continue to collect them on their own.
Third, to acquire cultural relics at reasonable prices. According to the provisions of the good faith acquisition in the Civil Code, it can only be applied to transactions "transferred at a reasonable price". In this case, even if the seller has no right to dispose of the cultural relics and complete registration or delivery, purchasers can also obtain the ownership of cultural relics (state-owned cultural relics, precious cultural relics in non-state-owned collections, stolen and lost cultural relics in private ownership shall not be acquired in good faith). If the cultural relic is acquired through inheritance, gift or purchased at an unreasonably low price, once the original state or other person legally owns the cultural relic, the original owner has the right to ask the buyer to return it within the limitation of action, and the buyer cannot be compensated.
The above three are the important criteria to judge whether the buyer in cultural relics transaction constitutes "good faith" in civil law. If the purchaser has exercised due diligence, which constitutes "good faith" in civil law, the purchaser can acquire the ownership of cultural relics even though the seller has no right to dispose of them. In exceptional cases, even if the purchase of cultural relics prohibited by law is made, the purchaser can claim compensation from the original owner even though the buyer cannot claim that the relics were acquired in good faith and must be returned at the request of the original owner.
In short, the cultural relics involved in this case are unearthed cultural relics, the ownership of which belongs to the state from the beginning and cannot be acquired by the purchaser. The cultural relics administrative department should receive the stolen excavated cultural relics in this case instead of returning them to the purchaser. In order to avoid legal risks and protect their legitimate rights and interests, purchasers of cultural relics should exercise due diligence in purchasing cultural relics.
