Research On The Theoretical Basis Of Legalization Of Intangible Cultural Heritage Right

At present,the Law of the People's Republic of China on Intangible Cultural Heritage is a public law protection guided by administration.It has not yet solved the problem of materialization of intangible cultural heritage rights.As a result,it made subject of rights lack of legal relief basis for infringement of intangible cultural heritage and led to interests of the subject of rights without effective protection.For the protection of the intangible cultural heritage,this single public law protection is obviously limited.Therefore,it is urgent to play the role of interest driven mechanism in private law.Based on the conditions,this paper puts forward the problem of legalization of intangible cultural heritage right.In this article,the full theoretical argumentation on the legalization of intangible cultural heritage right is mainly based on the proper right,legal right and practical right's the logical structure.And it provides strong theoretical support for the necessity and feasibility of the legalization of intangible cultural heritage rights.The article is divided into four parts:In the first part of this article,it first discuss the realistic reasons for the legalization of intangible cultural heritage rights from four aspects.The four aspects are the prominence of economic interests of the intangible cultural heritage,the awakening of the consciousness of the right of the subject,the deficiency of the current specialized law protection and the limited protection of intellectual property rights.Secondly,it discusses the concept of intangible cultural heritage right and its public and private attributes.Finally,it analyzes the subject,object and right content of the intangible cultural heritage rights.In the second part of this article,it mainly demonstrates the legalization of intangible cultural heritage rights from the perspective of "due rights".The selection of the basis human nature in the "proper rights" level is based on the "living" inheritance characteristics of intangible cultural heritage.It is necessary to legalize the right of intangible cultural heritage by the evil and self interest of human nature in the foundation of human nature.And the rationality and altruism in human nature make the legalization of the right of intangible cultural heritage feasible.In the third part of this article,it mainly demonstrates the legalization of intangible cultural heritage rights from the perspective of "legal rights".The choice of the basis of right in the "legal rights" level is based on the "labor" property characteristics of intangible cultural heritage.The labor property of intangible cultural heritage accords with the connotation requirement of Locke's theory of labor property rights.So,the theory of labor property rights can effectively demonstrate the necessity and feasibility of legalization of intangible cultural heritage rights.In the fourth part of this article,it mainly demonstrates the legalization of intangible cultural heritage rights from the perspective of" practical right".The choice of the social foundation in the "real right" level is based on the characteristics of"freedom" in the public land of the intangible cultural heritage.The "freedom" in the public land is a limited freedom.Otherwise,it may lead to two extreme results:the"tragedy of the commons"-the exhaustion of resources or the "tragedy of the anti-commons"-the idle resources.The legalization of the right of intangible cultural heritage can effectively avoid the occurrence of these two extreme results,and promote the realization of the "freedom" in the public land of the intangible cultural heritage.