Theories and Practices of Public Participation in Public Interest Litigation relating to Cultural Heritage
Date：2023/11/19 14:01:50
Theories and Practices of Public Participation
in Public Interest Litigation relating to Cultural Heritage
Ding Guangyu
(Law School, Renmin University of China,
Beijing 100872, China)
Abstract: Since the public interest
litigation system was specified in Civil Procedure Law of the People’s Republic
of China and Administrative Procedure Law of the People’s Republic of China,
public interest litigation has been widely practiced in various fields.
However, cultural heritage protection has not been clearly identified as a
field to which public interest litigation is applicable. Therefore, in recent
years, discussions about whether public interest litigation can be applied to
cultural heritage have gained increasing interests. However, there is a lack of
study on public participation in public interest litigation relating to
cultural heritage according to existing laws, regulations, and research
results.
Based on the analysis on that cultural
heritage carries public interests closely linked to the public, which serves as
the foundation for public interest litigation relating to cultural heritage,
and after studying policies on public interest litigation relating to cultural
heritage and legal documents and cases involving public participation in public
interest litigation, the author believes that despite that legislative and
judicial bodies of the central and local governments have been actively
exploring public participation in public interest litigation relating to
cultural heritage, such as having public hearings and establishing the legal
observer system, there are still problems including the lack of legal basis,
single or limited form of participation, and lack of cases involving intangible
cultural heritage.
China should encourage the public through
legislation to provide clues, evidence, information for public interest
litigation, participate in assessing whether any public interest is harmed and
how any public interest is recovered, balance the interests and demands of
different parties, or directly participate in case trials with a specific role.
At the institution level, it is necessary to streamline information channels,
implement mechanisms for public participation and decision-making throughout
the whole litigation process, implement the juror, observer, and supervisor
systems and improve the stimulating system, based on which, an institutional
path should be explored for public participation in cultural heritage
protection.
Compared with previous literature, this
paper has the following merits. Firstly, by explaining the internal links between
cultural heritage value and the public, the theories of cultural heritage
rights and public participation are applied to deepen the legitimacy foundation
for public participation in public interest litigation relating to cultural
heritage. Secondly, the main methods for public participation in public
interest litigation are clearly proposed. It is suggested that the right for a
citizen to initiate administrative public interest litigation relating to
cultural heritage should not be granted for the time being, while inheritors of
intangible cultural heritage should have the right to initiate public interest
litigation relating to intangible cultural heritage, and other specific methods
for public participation in public interest litigation are also proposed.
To a certain extent, this study may serve
as a reference for improving public interest litigation system relating to
cultural heritage and help the public to fully understand the public interests
carried by cultural heritage. Moreover, by including regulations on various
procedures into public interest litigation relating to cultural heritage, the
administrative and judicial bodies can fully meet the demand for public
participation and consolidate the resources of whole society to promote the
development of undertakings relating to cultural heritage.
Keywords: public participation; cultural
heritage; public interest litigation; public interest
From China Cultural Heritage, 2023 Issue 4.
Author: Ding Guangyu, PhD candidate in Law School, Renmin University of China; Visiting scholar in University of Technology Sydney; the assistant of UNESCO Chair on Cultural Heritage Law.
