On Cultural Heritage Right

Cultural heritage is the precious textbook of historical culture for humankind. It is not only the witness of historical development and important culture resource but also the presence of national culture soft power. China, an ancient country with more than 5000 years history, inherits a unique well-established cultural which is colorful with its distinctive diversity. These heritage is the significant part of our national spirit, individuality, cohesion and centripetal force. Despite of the current fact that preserving and rediscovering works draws unprecedented attention all over the country, there is noticeable negative phenomenon appearing in our urbanization and modernization tide, for instance, the destroying of historical significances, the stealing and outflows of culture relic. The new and non-standard emerging tourism industry is a new threat and destruction of heritage.In order to strengthen the protection of our national cultural heritage and promote its function in the development of our economy, politics and society, this thesis elaborates the cultural heritage right from a new view of comparison and history analysis. It focuses on the subjects, objects, contents, and attributes of cultural heritage. This thesis expounds the details about the construction of our own related national legal systems after reviewing overseas and international legislation on the cultural heritage right.This thesis is divided into five sections.The first section discusses the basic questions of cultural heritage mainly including its concept, characteristics, classification, function and its value. It puts forward the concept of cultural heritage after analyzing the evolution and development of cultural heritage. Through the inspection of the development of this concept, it can be found that the definition and coverage of cultural heritage varies in different historical periods. In fact, the international legal texts and distinctive national legislation vary in the definition of cultural heritage, so do scholars. This fact leads to the crossing and overlapping on the definition. However, with the rising of cultural heritage protection and research at home and abroad, especially after the signature and enforcement of some influential international conventions, such as Convention Concerning the Protection of the World Cultural and Natural Heritage and Convention for the Safeguarding of the Intangible Cultural Heritage, various countries achieved mutual recognitions to the concept. At the same time, via the cognition of cultural heritage which is unique and irreplaceable with national and regional characteristics, it is helpful to understand the function of cultural heritage on aspect of industry, tour, spirit, ecology, historical document and education propaganda and grasping its historical value, spiritual value, scientific value and artistic value. It also helps an accurate defined connotation and extension of cultural heritage in our related legislation and practice. In summary, cultural heritage mainly refers to condensed material works along with its theory achievements, systems, ideology, manners, customs and the artistic display in a specific historical period.In the second section, the emergence of cultural heritage right and its objects, subjects, contents and characteristics are discussed in details. The emergence of cultural heritage right has its own background, reality base, theory and law foundation. Only based on the maturity of these developments can the right of cultural heritage come into being. The core aspect of cultural heritage right research lie on its subject, object and contents which is also essential to carry out other researches. Comparing with other rights’ subjects, extension is cultural heritage right’s distinctive main characteristic. It’s subjects, include individuals, communities, legal persons or other organizations, countries and humankind. At the same time, because the intangible cultural heritage includes the thoughts, consciousness and invertors and human groups, hence the spiritual products of cultural heritage are also the objects of cultural heritage right. Another object is the act which is inevitably implemented in the participants’ related activities. As far as any rights are inseparable from the objective existent contents, rights can not exist without contents, so does the cultural heritage right. The analysis of cultural heritage right includes two forms:one is the material right and the other is the spiritual right. Each form has a variety of specific rights. In addition, the relationship between cultural heritage right, human right, cultural rights, intellectual property and related areas are described in this sectionThe third section discusses the legal attributes of cultural heritage right. This part analyzes the public beneficial attributes, self-interest attributes and their performance. Just for cultural heritage, it has the character of property, this makes cultural heritage right has self-interest attribute. At the same time, the subjects of the cultural heritage have the qualities of extensiveness, nonprofit, sharing and the priority indemnificatory, these make the cultural heritage has the public attribute. Now, Cultural heritage right becomes a new and developing right which has both the public and self-interest attributes, these natures are both opposite and mixed to each other. To understand the legal attributes of the cultural heritage accurately is good for legislation and also blances the two kinds of relations. Only in this way can realize the real protection and development of the cultural heritage.The section four expounds the law protection of cultural heritage right. It explicates the theory basis and basic principles mainly. This part reviews the international and overseas legislation and summarizes their legislative experiences, and discusses the problems to law protection of cultural heritage right. The theory basis is mainly about human rights, sustainable development and environment value. The principles are as follows:right principle protection principle, efficient protection principle and interest distribution principle. To establish and perfect our country’s legal system of cultural heritage right, one important way is to draw on the experiences of b the international and foreign mature legal systems and legislation. This part inspects the legislation of cultural heritage right of America, France, Japan and the countries of Southeastern Europe is inspected. From the international and different countries’ legislation, both the concept of cultural heritage and scope of protection of cultural heritage are gradually enlarged:from once material heritage protection to now intangible cultural heritage. At the same time, the specific contents of protection is different from before, the general trend is that the contents are increased and enriched. This illustrates the development tendency of the cultural heritage protection to a certain extent. From other countries’ cultural heritage management systems, the key point is that the administrative agencies can protect the cultural heritage and perform the duties effectively. Different countries have different solutions, but the main methods are national direct funded and indirect funded, the specific measures are financial subsidies, tax breaks and cost deductions, etc. With states’funding, the market competition mechanism can improved significantly the service efficiency of funds. After inspecting these cultural heritage rights’ legislation, we can know that the current cultural heritage protection is constantly expanding and deepening, and the contents of cultural heritage rights are continually enriching and developing. In general, these legislations present a tendency that the legislation is in a scientific legislative way, and the legislation system what is integrated, the objects of protection are widened, the contents of legislation are specific and clear. All these methods and measures are worth learning in our cultural heritage right legislation.In the five section discusses the legal system construction of the cultural heritage right in our country. First of all, this section expounds the current situation of our cultural heritage right legislation. Secondly, it analyzes the demerits that our legislation pattern is not scientific and emphasizes the public interests. Lastly, certain proposals are put forward about the construction of our country’s related legislation. In order to protect our country’s cultural heritage, we should consider making Cultural Heritage Protection Law of the People’s Republic of China and emphasize the legal protection of cultural heritage right. This means the core of cultural heritage right is Cultural Heritage Protection Law of the People’s Republic of China, The exercise of local regulations of every province, autonomous region and municipality is the main measure, and Criminal Law of the People’s Republic of China. The construction and contents of legislation of Cultural Heritage Protection Law of the People’s Republic of China should includes general principles, the tangible cultural heritage, intangible cultural heritage scientific research of cultural heritage, the funds of cultural heritage, legal responsibility and supplementary articles. Only establishing and perfecting the legal system of cultural heritage right, can we actually realize the fundamental guarantee of cultural heritage in our country.