A Study On The Legislation Construction Of China Cultural Industry

Based on the presupposition of exploring the legislative theory of China cultural industry, this dissertation makes a study of the status quo and existing problems of the legislation construction of China cultural industry. Drawing on the beneficial legislation experience of cultural industry in other countries, and taking the new conditions after China's entry into WTO, the author presents the objective and tasks of legislation construction of China cultural industry.The legislation of China cultural industry is presented in the process of China's economic transformation from planned economy to market economy and under the background of its vigorously developing cultural industry. To discuss the basic theory of cultural industry legislation requires answering the theoretical foundation first. The reason to enhance the legislation construction of cultural industry comes primarily from the cognition that market economy is legal economy, and a mature market economy is a mixed economic system manipulated by "a visible hand" and "an invisible hand". Defects exist in market, and market failure may occur. When market failure happens, regulation and intervention from the government becomes inevitable. Market is, for the resource allocation of cultural industry, the fundamental mechanism, which cannot function properly without government's regulation and intervention, and one of the essential means is law, and hence the legal system concerning cultural industry, which includes three main sectors, i.e. legislation, enforcement and judicature. This legal system concerning cultural industry is an organic part of the whole social legal system and offers institutional guarantee for cultural industry development.After the above discussion, the dissertation turns to empirical research. A study is made on the current situation of legislation, enforcement and judicature of cultural industry. It is focused on the legislative process and the achievements. Since the opening-up and reform, China cultural industry legislation has mainly undergone two periods:one is the exploring period emphasizing regulation and management (1978—2000) and the other is the development period emphasizing promotion and right guarantee (2001～). In the exploring period, the main achievements are the establishment of cultural market, admittance of double-track pricing system, promotion of social capital entry, regulation of cultural content and market order, reinforcement of intellectual protection and implementation of license system, which are all confirmed in the form of law. In the development period, relevant laws and regulations are constituted, revised and abolished to speed up market subject cultivation, to make ownership admittance more flexible, to promote the international cultural exchange and the going-abroad of Chinese cultural products, to support cultural industry by using financial and taxation leverage, and to enhance the macro guidance of cultural industry. The Development Plan of China Cultural Industry is formulated and measures are taken to guide cultural industry to develop into a mainstay industry in the national economy. A system of laws and regulations concerning cultural industry has been preliminarily formed. The corresponding mechanisms on enforcement and judicature are also in the process of being established. The cultural industry legislation and experience of some developed countries have been discussed, and such conclusions are drawn as:emphasis should be put on the fundamental function of market, intellectual property protection, the content-creative core industry, the protection and exploitation of traditional national culture, the upgrade of cultural industry structure and the guiding industry of cultural industry. Its enlightenment on China cultural industry mainly lies in six aspects:the first is to confirm the legal status of cultural industry for commercial purposes through legislation and base its operation on market mechanism; the second is to attach importance to macro-administration of cultural industry and strategic planning, and establish through legislation proper guiding and supporting policies suitable for China cultural industry; the third is to value the propelling role of science and technology for cultural industry and nurture a cultural industry chain by combining cultural industry creativity with high-tech and promoting its application in cultural industry through legislation; the fourth is to strengthen intellectual property protection through legislation and ensure the cultural industry runners'rights, and thus create a sound market; the fifth is to encourage the domestic cultural products to go abroad through legislation and take a larger share in international cultural market; the sixth is to enhance through legislation the protection of national traditional culture and domestic market against cultural hegemony with emphasis on national cultural security. In this dissertation, contents in WTO regulations relevant to cultural industry and items in relation to China cultural industry are sorted out. China's entry into WTO brings challenges, problems and new topics for cultural industry administrations, which are mainly about how to utilize the WTO rules to promote the reform of resource allocation and support China's cultural products and service to occupy a larger share in the international cultural market, and thus make Chinese culture internationalized. In the process of being more in line with WTO regulations, the reality that Chinese cultural industry has just started must be taken into consideration in legislation construction. The opening of domestic cultural market and the introduction of foreign capital must be carried out step by step with great caution, especially in the field of mass communication. In blending with WTO regulations, many fields are involved in formulating cultural industry legal system, such as to promote cultural trade and expand cultural exchange, and so on, but the presupposition is to guarantee the national cultural security, which is concerning the national core benefit. Then problems in China cultural industry legislation are pointed out that the rules and regulations stay in comparatively low status, their quality needs improving, and the focus is more on regulation than on guarantee. Problems in enforcement lie in incomplete separation of government administration from management, confusion of administration and operation, neglect of procedure and lack of supervision. Problems in judicature mainly exist in the lack of independence and neutrality concerning judicial mechanism, inadequate non-contentious methods to settle dispute and to crack down on infringing act.In the last part of the dissertation, the objective and tasks of legislation construction of cultural industry are presented aiming at the existing problems and by referring to the experiences in legislation of the developed countries. The general objective of legislation construction of cultural industry is to improve the system of legislation, enforcement and judicial construction to form guarantee environment for the sustainable development of cultural industry on the basis of China's realities. From the perspective of legislation, there exist three levels of cultural industry legislation. The first level is to constitute the basic law of cultural industry according to the Constitution of the People s Republic of China, such as taking the Promotion Law of Cultural Industry as the leading law. The second level is to complement rules and regulations to make clear the rights and responsibilities and formulate concrete measures in such aspects as the development subject of cultural industry, cultural market, macro adjustment, property system, enterprise management, cultural resource exploitation, insurance and remedy and public welfare-undertaking support. The third level is to establish a complete legal system of cultural industry by enacting corresponding implementation rules and framing regional developing plans of cultural industry. In accordance with the goal, the main tasks of cultural industry legislation are to upgrade the rules and regulations, constitute the legal framework, enact the promotion law and improve the whole legislative system. Meanwhile, attention should be paid to the change of government function and the role of regulating subject; the introduction of post-legislation evaluation to reduce the risks resulted from lag of legislation and the measures to avoid regulation failure.Principles such as theory connecting with practice, interdisciplinary study, integrity of reality and prospect are used in this dissertation. The methodology includes historical, comparative, systematic and case study. The innovation points lie in thorough discussion of the theoretical foundation of cultural industry legislation, the systematic study of legislation and projecting the general objective and tasks of the legislation construction of China cultural industry from the perspective of building a society of rule of law in conformity with China's reality. The countermeasures are feasible, constructive and prospective.