Chinese Minority Legal Protection Of Intangible Cultural Heritage Basic Problem Study

Intangible cultural heritage, as the life memories of human beings, spiritual sources of human creativity, and fruits of human wisdom, vividly represents the worldwide cultural diversity, and hence is our eternal spiritual homeland.With the impetus of economic globalization, as well as development of modernization, cultural environment has changed tremendously; meanwhile, intangible cultural heritage comes across with increasingly huge crash. As a result, many precious heritages are on the edge of extinction. Therefore, protection for the intangible cultural heritage brooks no delay and in recent years, the number of proponents, either domestically or abroad, is increasing. Oct.17th,2003, the Conference of UNESCO, with 190 member states, passed the convention for the safeguarding of the intangible cultural heritage. And on Oct.20th 2005, 148 countries passed the convention on the protection and promotion on the diversity on the cultural expression.People's Republic of China is a multi-national country with long history and 56 ethnic groups. In the passed years, different ethnic groups created colorful cultural, left us with abundant minority cultural heritages, especially intangible cultural heritages. But right now, our minority intangible cultural heritage is facing a serious situation of extinction or on the edge of extinction. On the other hand, the lack of legal protection causes the prospect more worrisome.The minority intangible cultural heritage protection bears more importance for China as follows. Full protection for minority intangible cultural heritage is 1) the essence of the protection and enhancement of cultural diversity; 2) indicating our protection and effectuating of minorities'human rights; 3) the necessary requirement for practicing the scientific thinking on development; 4) conforming to the international protection for indigenous people's culture, specifically to its prominence and particularity.In China, strengthening the legal protection for minority intangible cultural heritage is more significant. First, realizing the legal protection of minority intangible cultural heritage is the fundamental requirement of our Constitution. Second, minority intangible cultural heritage protection should be rigid, like legal protection. Third, domestic legal system for minority intangible cultural heritage protection is the necessary approach for fulfilling relevant international obligation. Therefore, it is really important to strengthen the researches for legal system construction for minority intangible cultural heritage.This thesis is based on different research techniques applied in different fields, varying from field-study in ethnology, secondary analysis in sociology, to analytical method and comparison method in the science of law.Besides the introduction part, the thesis is composed with five chapters:legal analysis of the definition for minority intangible cultural heritage; the object of the legal relationship of minority intangible cultural heritage protection; the subject of the legal relationship of minority intangible cultural heritage protection; the status of the right of minority intangible cultural heritage and its content; the remedy for the minorities'right of intangible cultural heritage.Generally speaking, the thesis, with the purpose of filling the blank margin of the same research branch, starts with the definition analysis of the minority intangible cultural heritage, and completely researches the minority intangible cultural heritage protection, specifically the basic legal issues including the object, subject, the status and content of the rights, and the remedy.Detailedly speaking, several innovative sparks are raised as following:1. Trying to define the "minority intangible cultural heritage" as every kind of social practice, perception, expression or manifestation, knowledge, technology and related tools, material object, handcraft, and cultural sites, as long as the minorities deem them as their cultural heritage. The core value of this cultural heritage is the historical information value represented via the material carriers.2. Using "original object" and "secondary object" separately interprete the intangible object and tangible object of the minority intangible cultural heritage protection legal relationship.3. Clearly affirming the minority ethnic group is the owner of the minority intangible cultural heritage; opposing treating the possessors or their successors as the owner instead of the minority groups; claiming and proving the rationality of applying "committee" or ethnical county or town as an option to represent the heritage owners.4. Proving the minority intangible cultural heritage is a new kind of right, and thus is different from intellectual property. Since its right title has no link with intellectual property, there is no need to claim it as a "new type of intellectual property" and the relevant legal system should be sui genres, with no reformation of the current intellectual property frame. Trying to fully define and interprete the content of the minorities' right of their intangible cultural heritage.5. Propose to establish an international remedy system under the convention for the safeguarding of the intangible cultural heritage.