Font Size: a A A

Legal Research Of Recovery Of Cross-board Liiegal Removed Cultural Property

Posted on:2011-10-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:J H ChiFull Text:PDF
GTID:1116330332958488Subject:International law
Abstract/Summary:PDF Full Text Request
The Cross-boarden illegal removal of cultural property has been a problem concerned by international community for a long time. In the recent years, with the world widely acknowledge and understanding of the invaluable social, economic, cultural, religious and political value of cultural property, The source countries and other original owners begin to repatriate their cultural property by all kinds of ways, including non-litigation method by private people and entities, diplomatic and political method, and Cross-boarden civil litigation and arbitration. However, a number of theoretical and practical legal problems arising in the disputes of recovery of Cross-boarden illegal removed cultural property still had to be thoroughly analyzed and subsequently solved. The present dissertation focuses on the legal research of recovery of Cross-boarden illegal removed cultural property. Relying on prevailing research materials, this study intends to make an in-depth and systematic exploration of pertinent problems arising from repatriation of Cross-boarden illegal removed cultural property, especial from Cross-boarden civil litigation, and to demonstrate the most reasonable and material justicial while comparative analysis and analytical deduction underlie its construction. In the end, base on the analysis and research of practices and legislation in China regarding Cross-boarden recovery of illegal removed cultural property, the present author presents some advices and hopes that the present study may nonetheless make a valid contribution to both the protection and repatriation of cultural property in ChinaThe dissertation comprises 8 Chapters, in addition to an Introduction, totaling over 130,000 words. Chapter One is the research of basic issues of recovery of illegal removal of cultural property. The present author starts from the meaning of cultural property and emphasizes on the invaluable special value of cultural property. The value of cultural property is the main reason of recovery and illegal removal, and is the core issue of cultural property. This chapter then introduces the ways of Cross-boarden illegal removal of cultural property and the background of worldwide repatriation of cultural property. Finally the present author discusses the significance of recovery of illegal removed cultural property in theory. Based on the analysis and studies the theory of cultural nationalism and cultural internationalism, this chapter reveals the internal need and significance of recovery of illegal removed cultural property.Chapter Two is the legislation of recovering Cross-boarden illegal removed cultural property. This Chapter, by introducing the current legislation of international treaties, European Union and the United states, demonstrates the significance and effect of the current legal system of recovering illegal removed cultural property and discusses the characteristic and shortcoming of that.Chapter Three is the practice and approaches of recovery of Cross-boarden illegal removed cultural property. This Chapter introduces the practices of the recovery of illegal removed cultural property by some source counties of cultural property and discusses the reasons of successful repatriation among those. Then this Chapter studies the main three approaches of recovering illegal removed cultural property, which are non-litigation method by private people and entities, diplomatic and political method, and Cross-boarden civil litigation and arbitration. This Chapter analyzes the advantages and disadvantages of those approaches and leads the main parts of the present dissertation, which are the legal issues in the Cross-boarden litigation of recovery of illegal removed cultural property.Chapter Four to Chapter Seven focus on the four main legal issues in the Cross-boarden litigation of recovery of illegal removed cultural property, which are the qualification of plaintiff, the legal position of bona fide purchaser, statute of limitations and choice of law.Chapter Four is analysis of qualification of plaintiff in the Cross-boarden litigation of recovery of illegal removed cultural property. This Chapter studies legal issues of the qualification of private entity and source country as the plaintiff in the Cross-boarden litigation of recovery of illegal removed cultural property。This Chapter focuses on two issues. One is whether private person can bring Cross-boarden litigation as a plaintiff on behalf on source country. The other issue is whether the ownership of source country granted by domestic law can be accepted and executed by foreign country and can be qualified as plaintiff in the Cross-boarden litigation of recovery of illegal removed cultural property.Chapter Five is the legal position of bona fide purchaser. The conflict of interests of bona fide purchaser and original owner is one of the main issues in the Cross-boarden litigation of recovery of illegal removed cultural property. This Chapter, with the research of Common law system, Civil law system and international treaties, analyzes how to balance the interests of bona fide purchaser and original owner, and how to reasonably protect the interests of source country and other original owner, in order to fulfill the goal of repatriation.Chapter Six is statute of limitations. Statute of limitation is also one of the key issues which will affect the result of Cross-boarden litigation of recovery of illegal removed cultural property. The present author demonstrates that because of the special value of cultural property, reasonable time of locating cultural property and its current possessor shall be given to the original owner. So statute of limitation should protect the interests of original owner in the Cross-boarden litigation of recovery of illegal removed cultural property and it is the emphasis of this Chapter.Chapter Seven is applicable law. Using the conflict rule to choose the applicable law is a necessary legal procedure in the Cross-boarden litigation of recovery of illegal removed cultural property. This Chapter focuses on the disadvantage of traditional lex situs rule in the Cross-boarden litigation of recovery of illegal removed cultural property. And according to the specialty of cultural property, the application of lex original and renvoi can be more efficient to protect the reasonable interests of original owner and achieve repatriationChapter Eight is the legislation and recommendations of repatriation of illegal removed cultural property in China. This Chapter introduces the history and status of illegal remove of cultural property of China. Based on the analysis and research of practices and legislation in China regarding Cross-boarden recovery of illegal removed cultural property, the present author presents some recommendations and hopes that the present study may nonetheless make a valid contribution to both the protection and repatriation of cultural property in China...
Keywords/Search Tags:Cultural Property, Source country of Cultural Property, Market country of Cultural Property, Cultural Nationalism, Bona Fide Purchaser, Original Owner, Cross-boarden Litigation of Recovery of Illegal Removed Cultural Property
PDF Full Text Request
Related items