Doctrinal Analysis Of The Crime Of Reselling Cultural Relics

The 2017 revision of the "Protection of Cultural Relics Law" provides that citizens can collect cultural relics in accordance with the law,and provides for the acquisition of cultural relics and circulation channels,but due to the properties of cultural relics themselves and the imperfection of the legal provisions,the confusion of the regulation of the antique market,resulting in the cultural relics market has been chaotic,cultural relics collectors do not know where the boundary between collecting and selling cultural relics,and therefore often on the verge of crime to try.For the real act of selling cultural relics,there are also difficult problems such as the object of the crime,the difficulty of identifying the criminal act,the subjective aspects are difficult to identify.In contrast to the crime of trafficking in cultural relics,which is a relatively frequent crime in judicial practice,the crime of trafficking in cultural relics is a unpopular charge in the theoretical community,and few scholars have studied it.The crime of trafficking in cultural relics is not a simple crime,and there are many difficulties in identifying the trafficking of cultural relics.Therefore,the author chose the crime of trafficking in cultural relics as the subject of study,in order to benefit the judicial practice of dealing with related cultural relics crimes.The paper is divided into five chapters.The first chapter of this crime to make a clear definition of the legal interests.The protection of the legal interest of the crime,although there are many theoretical views,but these views are from the standpoint of the formal legal interest,the protection of the legal interest of the crime defined as "order interest",however,the state management of cultural relics order is only the means to achieve the protection of legal interest,can not guide the analysis of the elements in the interpretation process.Therefore,this paper will be the crime of selling cultural relics from the "formal legal interest" to "substantive legal interest",the protection of the legal interest of the crime is defined as "the protection of the cultural value of cultural relics".The second chapter focuses on the object of this crime.The practice of identifying all precious cultural relics as cultural relics prohibited by the state should be abandoned.According to the provisions of the Protection of Cultural Relics Law,as long as the source of illegal cultural relics,whether precious or ordinary cultural relics,are prohibited by the State cultural relics.On the contrary,the source of legitimate cultural relics,whether or not the Department of precious cultural relics,are cultural relics can be circulated.Therefore,the source of legitimate cultural relics,even if the purpose of profit circulation,transfer,but also did not violate the legal interests of the protection of this crime,so it is not appropriate to be recognized as the crime of trafficking in cultural relics.However,even if the source of legitimate cultural relics,if the purpose of commercial operation for profit,may also constitute the crime of illegal operation.The third chapter focuses on the act of implementation,i.e.,the analysis of the act of selling.There are many theoretical views on the identification of the act of selling,some require that the act of selling must have two acts of buying and selling,while others only require the purchase with the purpose of profit.In this paper,the act of selling should only include the act of selling.For the sale and acquisition of cultural relics,belongs to the preparatory acts of this crime;for the sale and transport,storage of cultural relics,is aiding and abetting,is not suitable for positive criminalization.The fourth chapter mainly analyzes the subjective aspect that the crime of selling cultural relics can only be constituted by direct intent is debatable.Direct intent and indirect intent is not an antagonistic relationship,but has the same legal status.The purpose of profit is a necessary element of the establishment of the crime,but not subjective more than elements,as to whether the purpose of achieving profit is not in question.The fifth chapter mainly analyzes the crime of the crime amount of factors,the seriousness of the circumstances belong to the objective elements of the elements.Judicial interpretation of the main provisions of the two types of factors affecting the amount of crime,namely,the grade of cultural relics and the amount of the transaction.The perpetrator’s misconception of the grade of cultural relics is a simple evaluation error,does not affect the determination of the aggravating circumstances;the amount of the transaction did not reach 50,000 yuan,is not aggravating circumstances,therefore,it is not appropriate to determine the attempt of the crime.