Four Highlights of the Draft Revision to the Cultural Relics Protection Law
Date：2023/11/11 13:58:29
On October 25th 2023, the
"Draft Revision to the Cultural Relics Protection Law of the People's
Republic of China (hereinafter referred to as the 'Draft Revision')",
which was initially reviewed at the sixth session of the 14th Standing
Committee of the National People's Congress, was made public to solicit
opinions from society.
Since the Cultural Relics Protection Law
was promulgated in 1982, it has undergone five amendments and one comprehensive
revision, playing a significant role in curbing the loss and destruction of
cultural relics, strengthening the management of cultural relics, and
protecting the safety of cultural relics. However, with the expansion of the
scope of cultural heritage and the progress in the concepts and practices of
protection, the relationship between cultural heritage and public life,
economic and social sustainable development has become increasingly close;
China's participation in international cooperation and governance in the field
of cultural heritage has also significantly improved. The comprehensive
revision of the Cultural Relics Protection Law in 2002 can no longer meet the
needs of cultural heritage protection in the new era.
Against this backdrop, the new round of
comprehensive revision of the Cultural Relics Protection Law has been on the
agenda of relevant departments since 2012, and draft revisions were formed in
2015 and 2020, respectively, to solicit opinions from society, attracting
widespread attention. This draft revision has many highlights, directly
addressing new situations and problems in the development of cultural heritage
and the practice of cultural relic protection, and building consensus. While
maintaining the existing chapter structure, it summarizes the mature practical
experience of cultural relic protection in recent years, and constructs a new
pattern of cultural relic protection and utilization from the aspects of
concepts, principles, systems, and rules.
1. Strengthening the Management of Cultural
Relic Protection to Ensure the Safety of Cultural Relics
The current Cultural Relics Protection Law
focuses on the protection and management of immovable cultural relics at the
level of cultural relic protection units, while the provisions for the
protection of a large number of immovable cultural relics that have not been
identified as cultural relic protection units are relatively general. In
addition, the penalties for illegal acts that damage cultural relics are
insufficient.
This draft revision improves the protection
and management system for immovable cultural relics from the aspects of
identification, registration, protection measures, main responsibilities, and
illegal penalties.
In the identification and registration
phase, the draft revision clearly stipulates that before the renovation of old
urban areas and land development, a survey and identification of cultural
relics and historical building resources should be carried out first, and
details the procedures for the identification, registration, and filing of
cultural relics.
In the protection and management phase, it
is required that local cultural relic departments organize the compilation of
protection plans for immovable cultural relics and incorporate protection
measures into the relevant local plans; it details the protection measures for
immovable cultural relics that have not been identified as cultural relic
protection units and the rules for the demolition approval management of such
cultural relics; it also summarizes practical experience, adds the system of
underground cultural relic burial areas and underwater cultural relic
protection areas, establishes the archaeological pre-construction system that
"archaeology first, then construction" within the protection scope and
construction control area of cultural relic protection units, and stipulates
the proper handling of the relationship between archaeological cultural relic
protection and construction projects.
In terms of main responsibilities, it is
required that users of non-state-owned immovable cultural relics also bear the
responsibility for maintenance and repair, and local governments can provide
subsidies regardless of whether they have the ability to repair. In terms of
legal responsibilities, for illegal acts such as the demolition, destruction,
or other means of damaging immovable cultural relics, the fines have been
greatly increased, and violators must also bear the costs of repairing and
restoring cultural relics.
2. Responding to the Practical Exploration
of Cultural Relic Activation and Utilization, Promoting Rational Utilization
The relationship between cultural relic
protection and utilization is relatively clear in theory, but there are many
disputes in practice. Although many places have carried out many explorations
in the activation and utilization of cultural relics, due to the lack of a
clear definition of "rational utilization" in the law, some methods
of cultural relic activation and utilization are controversial or questioned in
practice.
Rational utilization has also become one of
the biggest points of contention in the comprehensive revision process of the Cultural
Relics Protection Law.
Based on building consensus, the draft
revision responds to this issue, clarifying the basic orientation of "the
state encourages research on the protection and utilization of cultural
relics" and the basic principle of "insisting on giving priority to
social benefits while ensuring the safety of cultural relics, rationally
utilizing cultural relic resources, and providing a variety of cultural
products and services at multiple levels."
On this basis, the draft revision promotes
the rational utilization of cultural relics from two aspects: regulation and
guidance. On the one hand, through a series of specific provisions, it responds
to important issues that have arisen in the practice of cultural relic
utilization and sets the bottom line rules for rational utilization. For
example, it stipulates that the use of immovable cultural relics must adhere to
the principles of not changing the original state of cultural relics and
minimal intervention; in tourism development, large-scale demolition and
construction, and the construction of fake buildings instead of real ones are
strictly prohibited to prevent excessive commercialization; the tourism
development and construction of historical and cultural blocks and towns shall
not be wholly managed by enterprises；cultural relic
shops and auction enterprises must not engage in false publicity when selling
or auctioning cultural relics according to the law, etc. On the other hand, it
adds a series of rules that guide and incentive the rational utilization of
cultural relics. For example, it requires cultural relic protection units to
open to the public as much as possible and reasonably determine the tourist
load; promote the digital collection and display utilization of cultural relic
resources; encourage the display of cultural relic values by establishing
museums, memorial halls, storage places, and archaeological site parks; and
encourage cultural relic collection units to give full play to the role of
their collections and provide support and assistance for related educational
teaching and scientific research activities, etc.
3. Paying Attention to Social Forces and
Promoting Public Participation
China has a large number of cultural relics
widely distributed, and the people have always been an important support force
for cultural relic work. As early as 2001, the State Administration of Cultural
Heritage proposed to "gradually establish a new system for cultural relic
protection mainly by the state and mobilize the participation of the whole
society."
In recent years, the enthusiasm of the
social public for paying attention to and participating in the protection and
utilization of cultural relics has been increasing. However, due to the lack of
sufficient guidance, the public participation in the protection of cultural
relics is in a spontaneous state, and the effectiveness and continuity of
participation are insufficient.
This draft revision adds a series of
provisions to regulate, guide, and protect the participation of the social
public in the protection of cultural relics. For example, the "General
Principles" section stipulates that news media should publicize knowledge
and laws and regulations on cultural relic protection and supervise public
opinion; Article 17 clearly stipulates that cultural relic departments or law
enforcement agencies at all levels should promptly handle reports from the
public on illegal acts of cultural relics.
Of course, the protection of cultural
relics is a professional field and sometimes it is not completely consistent
with the general cognition of the public. In this regard, the draft revision,
based on the summary of practical experience, requires that grassroots mass
autonomous organizations and volunteers participating in the protection of
immovable cultural relics should be guided by the cultural relic administrative
department. To further motivate the social public to participate, the draft
revision also adds in Article 15 that "units and individuals who organize
and participate in cultural relic protection volunteer services with
significant achievements" should be rewarded materially or spiritually
according to national regulations.
4. Safeguarding National Sovereignty and
Reflecting the Responsibility of a Great Power
China has joined the vast majority of
cultural heritage conventions of UNESCO and has always actively fulfilled the
obligations of contracting parties, actively expanding international
cooperation in the restoration of cultural relics and monuments, the prevention
and crackdown on the illegal trafficking of cultural property, and other
cultural relic crimes. At the same time, a large number of Chinese cultural
relics have been lost overseas for various reasons, and their return is
hindered by legal systems such as the statute of limitations. With the
continuous improvement of China's opening up and the deepening of international
cooperation in the field of cultural heritage, it is particularly important to
establish China's basic position and specific systems for participating in the
international order of cultural heritage through law.
The draft revision also actively responds
in this regard. At the level of basic concepts and principles, the
"General Principles" chapter incorporates "promoting the
exchange and mutual learning of human civilization" into the law, clearly
stipulating that the state supports international exchanges and cooperation in
the protection of cultural relics, demonstrating China's open position of
maintaining and promoting the diversity of human culture on the basis of equal
exchange and mutual learning.
At the level of specific legal systems and
rules, the provisions that cultural relic collection units are not allowed to
collect or purchase cultural relics with illegal sources or unknown sources,
citizens, legal persons, and other organizations are not allowed to purchase
cultural relics that foreign governments or relevant international organizations
have notified or announced as lost according to international conventions, and
the provisions on "carrying out return cooperation with relevant countries
based on relevant agreements or the principle of reciprocity for foreign
cultural relics that have illegally entered our country" are all direct
reflections of China's obligations as a contracting party in the 1970
"Convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property" and the 1995
"Convention on Stolen or Illegally Exported Cultural Objects”. At the same
time, the draft revision firmly declares the basic position that "the
state retains the right to reclaim cultural relics that have been lost overseas
due to theft, illegal export, etc., and this right is not subject to the
statute of limitations." It also requires that "the State Council's
administrative department for cultural relics, in accordance with the law,
cooperates with relevant departments to carry out the pursuit of cultural
relics that have been lost overseas due to theft, illegal export, etc."
This firmly upholds the national sovereignty and rights within the framework of
the international order and establishes a legal basis for the recovery of lost
cultural relics.
In summary, the draft revision, as a
summary of the relatively mature practical experience in the new stage of the
development of China's cultural relics, reflects the new achievements in the
concept and practice of China's cultural relic protection. It also provides a
basic legal basis for further strengthening and improving the work of cultural
relics and constructing a new pattern of cultural relic protection and
utilization.
Author:
Hu Shanchen, the researcher at the Research
Center for Cultural Law and Human Rights at Minzu University of China, and the
member of the UNESCO Chair on Cultural Heritage Law.
