Punishing Cultural Relics Crimes in accordance with the Law and Maintaining National Cultural Relics Safety
The heads of the Research Office of the Supreme People’s Court, the First Procuratorate Office of the Supreme People’s Procuratorate, the Legislative Affairs Bureau of the Ministry of Public Security, and the Policy and Regulation Department of the National Cutural Heritage Administration answered questions from reporters on the Opinions on Some Issues Concerning Handling Criminal Cases that Obstruct the Administration of Cultural Relics
On September 5, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the National Cutural Heritage Administration jointly issued 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). In order to facilitate the accurate understanding and application of judicial practice, relevant leaders of the Research Office of the Supreme People’s Court, the First Procuratorial Office of the Supreme People’s Procuratorate, the Legal Affairs Bureau of the Ministry of Public Security, and the Policy and Regulation Department of the National Cutural Heritage Administration were interviewed.
Question 1: Please introduce the background and main process of formulating the Opinion.
Answer: Cultural relics are important cultural heritage, carrying the splendid civilization of the Chinese nation, and inheriting over 5000 years of historical and cultural heritage. It is of great significance to do a good job in protecting cultural relics. Cultural relic crimes seriously affect the safety of cultural relics, causing incalculable losses to China’s historical and cultural heritage. We should adhere to the stance of strict punishment for cultural relic crimes. In December 2015, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the “Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Involving Obstruction of Cultural Relics Management”, which clarified the conviction and sentencing standards for related crimes involving obstruction of cultural relics management and related legal application issues; In June 2018, the Supreme People’s Court, the Supreme People’s Procuratorate, the National Cutural Heritage Administration, the Ministry of Public Security and the General Administration of Customs jointly issued the Administrative Measures for the Identification and Evaluation of Cultural Relics Involved in Cases to further standardize the identification and evaluation of cultural relics involved in cases; Since the 19th National Congress of the Communist Party of China, the Ministry of Public Security, together with the National Cutural Heritage Administration, has deployed special actions to combat and prevent cultural relics crimes for four consecutive times, effectively combating and deterring cultural relics crimes.
In recent years, cultural relic crimes have shown new trends and characteristics, with criminal gangs showing a clear trend of specialization and intelligence. Criminal activities have spread to the internet, and the criminal industry chain of “exploration, excavation, theft, sales, and smuggling” is becoming increasingly mature. Underground cultural relic transactions are active. At the same time, there are still different understandings in practice regarding the objects of related crimes, attempted offenses, and the criteria for criminalization.
In order to effectively strengthen the judicial protection of cultural relics, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the National Cutural Heritage Administration, on the basis of full research and demonstration, and in accordance with the relevant provisions of the existing laws, responded to the application of laws that urgently need to be solved in the practice of handling cases, so as to better guide the practice of handling cases and severely punish cultural relics crimes according to law.
Question 2: What are the specific provisions of the Opinions regarding the application of the charges of robbing and excavating ancient cultural sites and ancient tombs?.The prominent issues have been improved in the application of this crime in the following two aspects:
One is to further clarify the scope of “ancient cultural sites and ancient tombs”. At present, there is no clear definition of the specific scope of ancient cultural sites and tombs in relevant laws, regulations or judicial interpretations, leading to differences in understanding in practice on how to determine the nature of ancient cultural sites or tombs in immovable cultural relics such as illegal excavation of ancient buildings and cave temples. In response, the Opinion stipulates that the ancient cultural sites and ancient tombs included in immovable cultural relics such as ancient buildings and grotto temples should also be recognized as the criminal objects of the crime of illegally excavating ancient cultural sites and ancient tombs; And whether the object of theft belongs to ancient cultural sites or ancient tombs shall be determined in accordance with Articles 8 and 15 of the Interpretation of Cultural Relics Crimes, that is, it shall not be limited to ancient cultural sites or ancient tombs that have been announced as immovable cultural relics.
The second is to clarify the identification of attempted excavation of ancient cultural sites and ancient tombs. The theft and excavation of ancient cultural sites and tombs has always been a focus and difficulty in the crackdown. According to statistics, from 2017 to 2021, there were a total of 3058 new criminal cases of various types of obstruction to cultural relics management in the first instance of national courts, with criminal cases of illegal excavation of ancient cultural sites and ancient tombs accounting for over 80%. In practice, there are frequent cases of attempted excavation of ancient cultural sites and ancient tombs, and the harm cannot be ignored. In order to better grasp the focus of the attack and implement the criminal policy of tempering justice with mercy, the Opinions made it clear that criminal responsibility should be investigated for attempted excavation cases such as ancient cultural sites and ancient tombs that have been identified as Major Historical and Cultural Site Protected at the National Level and provincial cultural relics protection units.
Question 3: Why does the Opinion specifically provide for the legal application of attempted theft of immovable cultural relics through destructive means? How is it regulated?
Answer: China has abundant cultural relics resources, with over 760000 known immovable cultural relics. For cases where immovable cultural relics are stolen through destructive means, according to the “Interpretation of Cultural Relics Crimes”, criminal responsibility should be pursued for theft. In practice, criminal gangs mainly use destructive means to steal parts of immovable cultural relics, such as cutting the head of a Buddha statue in a cave. It is easy to determine the level or value of the local cultural relic due to its low level or serious damage, leading to the perpetrator not receiving appropriate punishment, which is not conducive to protecting the safety of cultural relics. In this regard, the Opinions stipulates that criminal responsibility shall be investigated for five types of crimes of attempted theft of immovable cultural relics by destructive means, such as “theft of building components, murals, sculptures, stone carvings, etc. in Major Historical and Cultural Site Protected at the National Level and provincial cultural relics protection units, which damage the historical, artistic and scientific values of the cultural relics”.
Problem 4: Currently, the active trading of underground cultural relics has indirectly contributed to the trend of illegal excavation and theft of cultural relics. What are the targeted provisions for this Opinion?.The related charges mainly include concealing and concealing the offenses of the crime and the crime of reselling cultural relics. In practice, the judgment of subjective elements such as “knowing” in the crime of concealing or concealing crimes and “profit-making” in the crime of reselling cultural relics has always been a difficult problem. In order to apply the above charges more accurately, the Opinion clearly states that a comprehensive review and judgment should be made based on multiple subjective and objective factors such as the perpetrator’s cognitive ability, past experience, profit situation, appearance of cultural relics, and transaction price, in order to determine whether it belongs to “knowing” the crime of concealing or concealing the crime. If the perpetrator is unable to provide a reasonable explanation for situations such as having specific contact and transaction methods, evading or violently resisting inspections, or having a criminal record for cultural relics, they may be deemed to have “knowledge”; The determination of the crime of reselling cultural relics for the purpose of profit can be comprehensively reviewed and judged based on factors such as the perpetrator’s employment experience, criminal record, transaction situation, and cultural relic source.
Question 5: It is reported that in August 2020, the Ministry of Public Security, together with the National Cutural Heritage Administration, deployed a national special action to combat and prevent cultural relics crimes. What are the results of this special action? Are there any new measures to take next?.280000 pieces, including 6477 national precious cultural relics.
Next, in response to the new trends and characteristics of current cultural relics criminal activities, the Ministry of Public Security will organize and deploy local public security organs to continuously promote the development of special actions to crack down on and prevent cultural relics crimes, closely monitor the key links of cultural relics circulation, continue to carry out special case attacks, pursue theft, investigate reselling, selling stolen goods, smuggling, and dig deep into the behind the scenes financiers, achieving a full chain of crackdowns. At the same time, we will continuously strengthen cooperation with cultural relics and other departments, improve long-term mechanisms, and fight a comprehensive battle to resolutely curb the trend of frequent cultural relics crime cases, and effectively safeguard the security of national cultural relics. At the same time, we call on the general public to effectively enhance their awareness of the rule of law and cultural relic protection, actively report clues of cultural relic crimes, and jointly protect the safety of cultural relics and safeguard the national roots.