On November 19th, a civil public interest litigation case involving the theft of ancient building components and damage was publicly heard in the People’s Court of Jinxi County, Jiangxi Province, marking the first nationwide civil public interest litigation case for the protection of ancient villages.
Ancient buildings and villages are included in the protection of cultural relics, so the lawsuit filed by the People’s Procuratorate of Jinxi County as the plaintiff belongs to the civil public interest litigation for cultural relics protection. This type of litigation has become a legal remedy for the protection of cultural relics, which is the result of continuous exploration based on current legal provisions and can be described as quite difficult.
The provisions on the qualification of civil public interest litigation in the field of cultural heritage protection are that “for acts that pollute the environment, infringe upon the legitimate rights and interests of numerous consumers, and damage social and public interests, organs and relevant organizations stipulated by law can file lawsuits with the people’s court”, but it is not explicitly included in the scope of civil public interest litigation for cultural heritage protection. Therefore, the civil public interest litigation in the field of cultural relics protection is not very developed and is still in the stage of exploration and improvement.
In 2007, a lawyer filed a lawsuit with the People’s Court to pursue two lost Longmen Grottoes Buddha heads, but progress was not smooth due to issues with the subject’s qualifications. In 2014, an industrial park was constructed in Magu Village, Xiawo Town, Shangjie District, Zhengzhou City, and five cultural relics such as former residences and churches were demolished. In September 2015, a non-governmental environmental protection organization sued the Magu Village Committee and the Shangjie District People’s Government in court for directly demolishing cultural relics and failing to fulfill legal responsibilities, requesting protection of the site and reconstruction of cultural relics. Although this case is regarded as the first public interest lawsuit for the protection of immovable cultural relics in China, the plaintiff filed the lawsuit under the name of environmental protection, which is clearly due to the limitations of current laws on the scope and subject qualification of public interest litigation.
In fact, civil public interest litigation for the protection of cultural relics can be included in the scope of the people’s courts, and statutory organs and relevant organizations can also become the subject of such litigation. There is no lack of current legal basis: in accordance with the legislative spirit of Article 65 of the Civil Procedure Law mentioned above, the word “etc.” in this article for “acts that harm social and public interests” is clearly an illustrative and incomplete list, and should be interpreted as “substandard”. Cultural relics are social and public cultural resources, Therefore, the act of damaging cultural relics can be included in the word “etc.” in this article.
Given the frequent incidents of cultural relics destruction caused by construction, illegal excavation, and smuggling, as well as the current situation of insufficient legislation on cultural relics protection leading to difficulties in civil public interest litigation, in recent years, under the guidance of the Party Central Committee’s “expanding the scope of public interest litigation cases” directive, the judicial community has actively explored ways to broaden the scope of cultural relics protection and made efforts to introduce it into the scope of public interest litigation; Especially the procuratorial organs have the courage to explore and make full use of the current legal basis, in order to protect cultural relics for civil purposes.The litigation in Jinxi County has paved the way and actively carried out relevant litigation, as exemplified by the lawsuit mentioned above. Exploring the development of public interest litigation and increasing protection efforts in areas related to legal provisions. In December 2020, the Supreme People’s Procuratorate released 10 typical cases of public interest litigation for the protection of cultural relics and cultural heritage, including civil public interest litigation cases for cultural relics protection. In addition, there have been other similar cases in various regions in recent years, such as the People’s Procuratorate of Haixi Prefecture in Qinghai Province suing Sun and others for the criminal incidental civil public interest litigation case of excavating ancient cultural relics and tombs, and the China Green Development Association suing a real estate company in Zhengzhou Civil public interest litigation cases involving the destruction of ancient tombs by Qing Yun Company. In recent years, based on relevant practices, in the current situation where the number of cultural relics is large and administrative protection is the main focus, but its strength is insufficient, this lawsuit can stimulate and gather all parties to participate in the ranks of cultural relic protection, reduce the pressure on the administrative protection department of cultural relics, and enrich and expand the methods of cultural relic protection; Through litigation, making those who destroy cultural relics bear corresponding legal responsibilities helps to punish and curb various acts of wanton destruction of cultural relics; The use of litigation claims to stop infringement, eliminate obstacles, eliminate danger, restore the original state, and compensate for losses can enable the cultural relics involved to be rescued, repaired, or compensated for their value, thereby safeguarding social and public interests.
Constructing a diversified and progressive pattern for cultural relics protection
To deepen the promotion of civil public interest litigation for cultural relics protection and fully play its role in protecting cultural relics, the following main tasks should also be done well:
Legislatively, the protection of cultural relics is clearly included in the scope of civil public interest litigation. As mentioned earlier, the current law has not explicitly included the protection of cultural relics in the scope of civil public interest litigation, making such litigation challenging. To change this situation and provide strong institutional support for civil public interest litigation in cultural relics protection, cultural relics protection can be clearly defined as a specialized field of civil public interest litigation in future revisions of laws and regulations such as the Civil Procedure Law, the Cultural Relics Protection Law, and the Regulations on the Protection of Historical and Cultural Cities, Towns, and Villages, making it officially incorporated into law..Organizations, groups, and others may file lawsuits, and when the time is ripe, individual citizens may be allowed to file relevant lawsuits.
Establish and improve a compensation mechanism for cultural relics damage. In civil public interest litigation for cultural relics protection, the defendant shall bear the responsibility for damages and expenses. The compensation cost involves the evaluation and recognition of the value of cultural relics damage, which is difficult to operate and prone to quantitative deviation, which is a difficult problem in current practice. Therefore, efforts should be made to establish scientific and reasonable value evaluation standards, establish rigorous and standardized evaluation methods, and ensure the objectivity and accuracy of evaluation results. The current compensation for damages is compensatory, and in order to punish and prevent the destruction of cultural relics, attention should be paid to the application of punitive compensation mechanisms in the future. The “Plan for the Construction of China under the Rule of Law (2020-2025)” points out: “Exploring the establishment of a punitive compensation system for civil public interest litigation.” This should be particularly true for civil public interest litigation for cultural relics protection. The construction of its punitive compensation system should pay attention to linking the compensation amplitude with factors such as the defendant’s subjective malice, the cultural value of cultural relics, and the results of cultural relics damage, and be sufficient to have a deterrent effect on cultural relics damage behavior.
Encourage the general public to provide case clues and broaden the channels for case sources. Effective incentive mechanisms can be established to encourage and support the general public to supervise the destruction of cultural relics, and provide relevant case clues to the authorities and organizations with the right to file lawsuits, thereby expanding the source of cases and maximizing the role of civil public interest litigation in cultural relic protection.
Increase efforts in case creation and publication. Prosecutors and people’s courts should strengthen the creation of guiding cases and typical cases for civil public interest litigation in the protection of cultural relics, and enhance the transparency of cases. Through case publicity, we aim to guide the entire society to participate in cultural relic protection, deter and warn potential violators, and play a demonstrative and guiding role in solving difficult problems in judicial practice, regulating the handling of cases by judicial organs, and ensuring the unified and correct implementation of laws.
(Author: Cao Yiyang, lecturer at the School of Law at Central China Normal University, and researcher at the “Rule of Law in Grassroots and Local Governance” research group of the first-class discipline construction project at Central China Normal University)