Cultural relics carry splendid civilization, inherit historical and cultural heritage, maintain national spirit, and protect cultural relics for the present and benefit the future. In recent years, with the strong crackdown and strict prevention by public security, procuratorial and judicial organs and cultural relics administrative departments, the trend of cultural relics crimes has been effectively curbed; However, driven by excessive profits, cultural relic crimes still occur from time to time, and new situations and problems arise, which troubles the practice of handling cases. In view of this, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the National Cutural Heritage Administration jointly formulated the Opinions on Several Issues Concerning the Handling of Criminal Cases Involving Obstruction of Cultural Relics Management (GTZ [2022] No. 18, hereinafter referred to as the Opinions), which was issued on September 5, 2022.
The main content of the Opinion is as follows:
One is to further clarify the identification of behaviors that hinder the management of cultural relics. The Opinion clearly states that for the illegal excavation of ancient cultural sites and tombs included in immovable cultural relics such as ancient buildings and grotto temples, if it complies with the provisions of Article 328 of the Criminal Law, criminal responsibility shall be pursued for the crime of illegal excavation of ancient cultural sites and tombs, and the criteria for determining “multiple illegal excavations” shall be clarified. In response to the attempted theft of immovable cultural relics by destructive means, which also constitutes a crime of other cultural relics, the Opinion clearly stipulates the punishment of one serious crime. The Opinion is also based on case handling practice, providing guidance on the determination of “knowingly” in concealing and concealing crimes and “profit-making” in the crime of reselling cultural relics.
The second is to further standardize the procedures for identifying and evaluating cultural relics involved in the case. The Opinion clarifies that the cultural relics involved in the case can be identified and evaluated for their specific categories of immovable cultural relics such as ancient cultural sites and tombs, whether they have historical, artistic, and scientific value, as well as the degree of damage and value impact caused by relevant behaviors on the cultural relics. It also requires that the appraisal and evaluation report should be issued in accordance with the procedures and format specified in the Measures for the Administration of Appraisal and Evaluation of Cultural Relics Involved in Cases.
Thirdly, further clarify the jurisdiction of cultural relic crime cases. According to the “Opinions”, the crime site of cultural relics crimes includes not only the tool preparation site, exploration site, and excavation site, but also the actual acquisition site, hiding site, transfer site, processing site, storage site, etc. of the cultural relics involved in the case, in order to solve the jurisdictional problem of “property and case” in practice. At the same time, in order to facilitate the investigation of facts and improve the efficiency of case handling, the Opinion also provides provisions for the combined handling of criminal cases that hinder the management of cultural relics.
The fourth is to further implement the criminal law of combining leniency and severity.Policy. The Opinion stipulates that those who play a major role in joint crimes can be identified as the main culprit in accordance with the law, and the entire chain of crackdowns on cultural relics criminal networks can be implemented; For individuals with cultural relics violations or criminal records, as well as state officials who commit related crimes, they may be given heavier penalties at their discretion; Those who have surrendered, made meritorious contributions, pleaded guilty and punished shall be dealt with leniently in accordance with the law. At the same time, the Opinion also requires a good connection between executions and a comprehensive crackdown on cultural relics violations and crimes.
Next, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the National Cutural Heritage Administration will guide local people’s courts, people’s procuratorates, public security organs and cultural relics administrative departments at all levels to strictly implement the relevant provisions of the Criminal Law, the Law on the Protection of Cultural Relics and the Opinions, accurately grasp policy requirements, standardize case handling procedures, effectively prevent and combat cultural relics crimes, and effectively protect the safety of national cultural heritage.
Gongtongzi [2022] No. 18
The Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the National Cutural Heritage Administration
Opinions on Several Issues Concerning the Handling of Criminal Cases Involving Obstruction of Cultural Relics Management and Other Matters
Higher People’s Courts, People’s Procuratorates, Public Security Departments (Bureaus), Cultural Relics Bureaus (Department/Bureau of Culture and Tourism) of various provinces, autonomous regions, and municipalities directly under the Central Government, Production and Construction Corps Branch of Xinjiang Uygur Autonomous Region Higher People’s Court, People’s Procuratorates, Public Security Bureaus, and Cultural Relics Bureaus of Xinjiang Production and Construction Corps:
In order to punish crimes related to cultural relics in accordance with the law and strengthen the protection of cultural relics, this opinion is formulated in accordance with relevant provisions such as the Criminal Law of the People’s Republic of China, the Criminal Procedure Law of the People’s Republic of China, the Cultural Relics Protection Law of the People’s Republic of China, and the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving Obstruction of Cultural Relics Management (Fa Shi [2015] No. 23, hereinafter referred to as the “Interpretation of Cultural Relics Crimes”), combined with judicial practice.
1、 Overall requirements
Cultural relics carry splendid civilization, inherit historical culture, and maintain national spirit. They are witnesses to the development of national and ethnic history, precious treasures for promoting excellent traditional Chinese culture, and profound nourishment for cultivating socialist core values and consolidating the magnificent power of building the Chinese Dream. Protecting cultural relics benefits the present and the future. At present, the security situation of cultural relics in China is still severe, and cultural relic crimes occur from time to time. The trend of specialization and intelligence of criminal gangs is obvious, and criminal activities are spreading to the network. The criminal industry chain is becoming increasingly mature, and illegal transactions in underground markets are rampant, which has serious social harm. .Sincerely fulfill duties and responsibilities, punish and effectively prevent cultural relic crimes in accordance with the law, and effectively protect the security of national cultural heritage.
2、 Punish cultural relics crimes in accordance with the law
(1) Accurately identifying illegal mining activities
one.If the act of robbing and excavating ancient cultural sites and tombs included in immovable cultural relics such as ancient buildings and grotto temples complies with the provisions of Article 328 of the Criminal Law, criminal responsibility shall be pursued for the crime of robbing and excavating ancient cultural sites and tombs.
Whether the stolen objects belong to ancient cultural sites or tombs shall be determined in accordance with the provisions of Article 8 and Article 15 of the Interpretation of Cultural Relics Crimes.
two.For the purpose of illegal excavation, drilling, blasting, excavation and other operations on the surface of ancient cultural sites and tombs that have not damaged the historical, artistic, or scientific value of ancient cultural sites and tombs due to reasons beyond will, belong to attempted illegal excavation of ancient cultural sites and tombs, and should be dealt with separately according to different situations:
(1) Those who use ancient cultural sites or tombs designated as national key cultural relics protection units or provincial-level cultural relics protection units as targets for excavation shall be held criminally responsible;
(2) If ancient cultural sites and tombs designated as cultural relics protection units at the city or county level are used as targets for excavation, the organizers and active participants of the excavation gang shall be held criminally responsible;
(3) If other ancient cultural sites or tombs are used as targets for excavation, those with serious circumstances shall be held criminally responsible in accordance with the law.
If the act specified in the preceding paragraph constitutes the crime of intentional damage to cultural relics or the crime of intentional damage to scenic spots and historical sites as stipulated in the first and second paragraphs of Article 324 of the Criminal Law, the offender shall be convicted and punished in accordance with the provisions of the heavier punishment.
three.The third item of the first paragraph of Article 328 of the Criminal Law stipulates that “multiple illegal excavations” refer to three or more illegal excavations. For the perpetrator who, based on the same or generalized criminal intent, carries out continuous excavation within a certain range around the same ancient cultural site or ancient tomb, which has damaged the historical, artistic, and scientific value of the ancient cultural site or ancient tomb, it should generally be recognized as a single excavation.
(2) Accurately identifying theft behavior
Those who attempt to steal immovable cultural relics such as ancient buildings, grotto temples, stone carvings, murals, important historical sites and representative buildings of modern and contemporary times through destructive means shall be held criminally responsible in accordance with the law if they:
one.Stealing building components, murals, sculptures, stone carvings, etc. from national key cultural relics protection units and provincial-level cultural relics protection units, causing damage to the historical, artistic, and scientific value of the cultural relics themselves, with serious circumstances;
two.Those who have been identified as cultural relics protection units at or above the city or county level as the overall target of theft;
three.Causing damage to the immovable cultural relics of cultural relics protection units at or above the city or county level;
four.Theft of building components, murals, sculptures, stone carvings, etc. in immovable cultural relics, involving parts with historical, artistic, and scientific value equivalent to third level or higher cultural relics;
five.Other serious circumstances.
If the act specified in the preceding paragraph constitutes the crime of intentional damage to cultural relics or the crime of intentional damage to scenic spots and historical sites as stipulated in the first and second paragraphs of Article 324 of the Criminal Law, the offender shall be convicted and punished in accordance with the provisions of the heavier punishment.
(3) Accurately identifying acts of concealment, concealment, and resale
one.Those who knowingly conceal, transfer, purchase, process, sell on behalf of others, or cover up or conceal cultural relics obtained from crimes such as theft of cultural relics, excavation of ancient cultural sites, and ancient tombs, in accordance with Article 9 of the Interpretation on Cultural Relics Crimes, shall be held criminally responsible for the crimes of concealing or concealing as stipulated in Article 312 of the Criminal Law.
To determine whether it is “knowingly”, a comprehensive examination and judgment should be made based on the cognitive ability, past experience, frequency and means of behavior of the perpetrator, their relationship with the perpetrator of criminal acts such as theft, theft, and sale of cultural relics, their profit situation, whether they intentionally avoided investigation, and subjective and objective factors such as the appearance and price of the cultural relics involved. If the perpetrator is unable to provide a reasonable explanation under any of the following circumstances, it can be deemed that they “knew” it, except where there is evidence to the contrary:
(1) Engaging in contact transactions using slang, secret language, and other means;
(2) Evading inspection through disguise, concealing cultural relics, or resisting inspection through violence or other means;
(3) Those who have been held criminally responsible for committing crimes such as theft, theft, smuggling, and reselling cultural relics, or have received administrative penalties within two years;
(4) There is other evidence sufficient to prove the circumstances that the perpetrator should have known.
two.The sale or purchase, transportation, and storage of cultural relics prohibited by the state as stipulated in Article 51 of the Law of the People’s Republic of China on the Protection of Cultural Relics may be comprehensively reviewed and judged based on the actor’s work experience, cognitive ability, illegal and criminal records, confession, transaction price, frequency, quantity, place, and the source and appearance of the cultural relics, and it shall be determined that their behavior is for the purpose of profit as stipulated in Article 326 of the Criminal Law, except for cultural relics whose source meets the provisions of Article 50 of the Law of the People’s Republic of China on the Protection of Cultural Relics.
3、 Identification and appraisal of cultural relics involved in the case
For specific issues related to the level, category, and value of cultural relics involved in the case, such as whether they belong to ancient cultural sites, ancient tombs, ancient buildings, grotto temples, stone carvings, murals, important modern historical sites and representative buildings, whether they have historical, artistic, and scientific value, whether they belong to cultural relics protection units at all levels, whether they are precious cultural relics, and the degree of damage caused by relevant actions to cultural relics and the impact on cultural relics value, if the cultural relics administrative department has already made a determination before the case, the relevant facts of the case can be directly determined; If no determination was made before the incident, the determination can be made in conjunction with the “Appraisal and Evaluation Report on Cultural Relics Involved in the Case” issued by the institution designated by the cultural relics administrative department of the State Council. If necessary, the investigating authority may request the cultural relics administrative department to provide explanations on relevant issues in accordance with the law. The Report on the Appraisal and Evaluation of Cultural Relics Involved in Cases shall be issued in accordance with the procedures and format specified in the Management Measures for the Appraisal and Evaluation of Cultural Relics Involved in Cases (Cultural Relics Expo [2018] No. 4).
4、 Jurisdiction of Cultural Relics Crime Cases
Cultural relic crime cases are generally under the jurisdiction of the public security organs in the crime site, including the premeditated place, tool preparation place, exploration place, excavation place, theft place, transit place, trading place, information dissemination place, export (border) place, location of immovable cultural relics involved, actual acquisition place, hiding place, transfer place, processing place, storage place, sales place, etc. Cultural relic crime cases that multiple public security organs have the authority to file and investigate shall be filed and investigated by the public security organs of the main crime location.
If any of the following situations occur, the relevant public security organs may handle them together within their scope of responsibilities:
(1) If one person commits multiple crimes;
(2) Jointly committing a crime;
(3) The suspect of a joint crime also commits other crimes;
(4) When three or more people join forces and cross gang to commit crimes;
(5) The theft, theft, reselling, concealment, smuggling and other crimes committed by multiple suspect are directly related or form a multi-level criminal chain, and the case handling is conducive to finding out the facts of the case.
5、 The application of the criminal policy of combining leniency and severity
(1) We should focus on cracking down on the entire network of cultural relics crimes such as investment, exploration, theft, resale, collection of stolen goods, and smuggling, and dig deep into the behind the scenes financiers to cut off cultural relics criminals.The criminal chain refers to those who, although not specifically involved in the implementation of relevant criminal acts, play a major role in the joint crime as behind the scenes gatherers, organizers, commanders, planners, investors, and instigators, and can be recognized as the principal offender in accordance with the law.
(2) For those who have received administrative penalties or been held criminally responsible for cultural relics violations, have committed cultural relics violations multiple times, or have committed relevant criminal acts as stipulated in this opinion by state officials, they may be given heavier penalties at their discretion.
(3) Properly utilizing systems such as voluntary surrender, meritorious service, and leniency in confession and punishment, fully leveraging the punitive and preventive functions of punishment. Those who actively return or assist in recovering cultural relics, assist in arresting suspect of major cultural relics, and provide important clues, which play a key role in the detection and investigation of other major cultural relics crimes, shall be dealt with leniently according to law.
(4) People’s courts, people’s procuratorates, and public security organs should strengthen communication and coordination with cultural relics administrative departments, strengthen the connection between execution, and timely transfer cases that do not constitute crimes in accordance with relevant regulations. Cultural relics that are prohibited from operation by the state and have been seized by public security organs in accordance with the law, if they are found to be unrelated to the case after examination, shall be handed over to relevant departments such as cultural relics administration for processing in accordance with the law. During the investigation and handling of cases, cultural relics administration and other departments shall promptly transfer suspected criminal cases to the public security organs in accordance with relevant regulations.
The Supreme People’s Court
The Supreme People’s Procuratorate
The Ministry of Public Security
National Cutural Heritage Administration
August 16, 2022