Research On The Administrative Public Interest Litigation Of Cultural Heritage In China

Cultural heritage is a kind of public interest.Under the China’s administrative-led cultural heritage protection system,it is common for governments to damage cultural heritage by illegal administrative acts or omissions.At present,the central and local governments have issued relevant policies to promote the practice of administrative public interest litigation for cultural heritage protection,showing that the vast majority of cases are solved through pre-litigation procedure,the protection objects are mainly immovable cultural heritage and highly dependent on policy promotion.After accumulating some practical experience,it is necessary to upgrade it from a policy system to a legal system in order to better realize the function of safeguarding public interests and strengthening procuratorial supervision.Through the investigation of system design and specific practice,it can be found that the administrative public interest litigation of cultural heritage protection,as an emerging system,still needs to be improved: First,the supply of legal system is insufficient.At present,most administrative public interest litigation cases of cultural heritage protection are handled through other types of administrative public interest litigation,especially environmental administrative public interest litigation,which is contrary to the requirements of the integrity principle of cultural heritage protection and is not conducive to the development of the system.Secondly,the concept of risk prevention is absent.The current damage-control-mode administrative public interest litigation for cultural heritage protection,on the one hand,makes the supervision perspective focus on the end of administrative behavior,which can not realize the complete administrative supervision function of administrative public interest litigation;On the other hand,it can not fit the irreversible characteristics of cultural heritage damage and the principle of authenticity protection,which is not conducive to the exertion of the function of safeguarding public interests.Thirdly,the function of pre-litigation procedure is limited.As the core procedure of administrative public interest litigation,pre-litigation procedure needs to be further improved in terms of the flexibility of the reply period of procuratorial suggestions and the rigidity of pre-litigation procuratorial suggestions.Finally,there is an obvious lack of public participation in the administrative public interest litigation of cultural heritage protection.The above problems can be improved through the following ways: First,strengthen the legal supply of administrative public interest litigation system for cultural heritage protection,and add administrative public interest litigation provisions when revising laws related to cultural heritage protection.Second,introduce the concept of risk prevention,in addition to the current damage-control-mode administrative public interest litigation for cultural heritage protection,supplement and construct the preventive administrative public interest litigation for cultural heritage protection,and constructed in terms of clue sources,startup conditions,trial procedures,and connection conversion mechanisms.Third,in the pre-litigation procedure of administrative public interest litigation,establish a more flexible time limit for the reply of procuratorial suggestions,and apply two types of preventive protection measures:suspension of execution and preservation of behavior.Fourth,broaden the formal mechanism of public participation in administrative public interest litigation for cultural heritage protection by improving the existing clue provision procedures,hearing procedures,rectification and evaluation procedures,strengthening the participation of experts,and gradually relaxing the restrictions on prosecution qualifications.