| This dissertation is about the legal safeguarding of Intangible cultural heritage (ICH) of national minority. Intangible cultural heritage epitomizes a nation’s culture and wisdom. China has56ethnic groups, each with its own rich and colorful intangible cultural heritage created during its long history. As a result of the rapid pace of industrialization and urbanization, great changes have taken place in people’s lifestyle and modes of production. This has, to a greater or lesser extent, disrupted the environment on which intangible cultural heritage relies for existence. Thus, the international community and the states have paid considerable attention to the safeguarding of ICH. However, a lot of the theoretical problems were born alongside the safeguarding programs relating to the ICH going on. China has established a number of cultural and ecological preservation zones to save and protect parts of our intangible cultural heritage that are on the brink of extinction or having difficulty surviving. In June1,2011,"Law of the People’s Republic of China on Intangible Cultural Heritage" came into force. This is the first law in China in twenty-first Century promulgated the culture field, which has milepost significance in the construction of legal system culture. The introduction of this law, marks the safeguarding of ICH in China has entered a stage of the legal framework."Law of the People’s Republic of China on Intangible Cultural Heritage" and "Convention for the Safeguarding of the Intangible Cultural Heritage" spirit come down in one continuous line, China actively fulfill its international obligations under the Convention, to promote the international protection of ICH, maintaining cultural diversity in human performance. However, the law is far not enough to the ICH of our country to provide adequate protection. Especially the method has no problem of civil protection of the intangible cultural heritage to make direct regulation, subject of right belongs to the intangible cultural heritage is still blank. At present, China’s safeguarding of ICH census basic end, announced the two batch of1028state-level list and the4315provincial-level directory; assessment announced the3batch of1488state-level project representative successors,5590provincial heritage; four cultural and ecological protection of the experimentation area were successively established in Southern Fujian, Huizhou, Regong and Qiang, where build a batch of ICH Museums and schools. Among these, ICH of ethnic minorities accounted for a great proportion. The research has three purposes:the first, to make a comprehensive analysis of the "Law of the People’s Republic of China on Intangible Cultural Heritage "and a series of existing legal documents, the gaps found in existing legislation, a preliminary analysis of the causes of this situation. The second, in order to effectively protect ICH, achieve the cultural awareness and cultural autonomy of minorities, so as to realize the equality of cultures and cultural diversity of the people of all ethnic groups, and build the system of legal safeguarding of ICH. With objective observation by the method of field work, the actual control inheritance of safeguarding of ICH belongs to ethnic minorities. The third, for realizing the national minority’s cultural consciousness and cultural independence, and making sure that people of all ethnic groups and cultural equality, cultural diversity. Therefore, it requires to define various legal documents and the definition of the intangible cultural heritage, based on the analysis of concept, using the method of legal interpretation, the legislative practice of international and domestic protection of ICH of ethnic minorities in the induction, summarizes the existing problems and improve the space, with these questions, look for the answer from the practice. Secondly, as the theoretical research papers in national law, make full use of anthropological analysis method, to obtain first-hand information by the method of field work. Last but not least, analyze the legal relationship of the ICH in that case, to construct the legal safeguarding system of ICH of ethnic minorities. The author’s point of view, that the right of the ICH is a kind of social law type of rights, it is different from the public law which aimed at restricting state power, unlike the traditional private law to protect individual exclusive rights for the purpose, but to the collective rights and relative exclusive features such as social law rights. The point two, according to the nature of the right, that the rights of minority’s ICH belong to the origin of community and population whose ancestors created it. The point three,"Law of the People’s Republic of China on Intangible Cultural Heritage" and the act being developed in the folk literature and art, as well as the scope of protection of the relevant laws of the current intellectual property law system convergence with each other. Point four, although the ICH attributable to source and ethnic groups. One ICH may belong to more than one nation. These common holder may cross-administrative regions, cross-national and transnational even exist. In other words, the rights vested in the first generation of modern and outside a particular community is the owner of Total ICH is actively moving from a time cross-section view, the number of people of a particular community is specific, clear, and in the interests of private rights on the border closed the main requirements. They constitute the main body of the ICH have the right to use and benefit of all of it. But the contemporary community group is the preservation, inheritance, is not really complete the owner. Therefore, against those who use modern spread down the cultural heritage of benefit and be in the right and self-confident, put all the income attributable to the small family, but not into a certain proportion to the community and future generations to use. Point five, the state is the most important responsibility of subject protection of intangible cultural heritage. Five point of view, the state is the most important responsibility of subject protection of intangible cultural heritage. In essence, is provided by the government administrative guarantee, administrative department provides protection to the work of the finance, policy and other security. Point six, in the protection of private rights, intangible cultural heritage cannot be successfully incorporated into the existing legal system. The legislation should be to acknowledge the value and promote respect, to prevent abuse and empowerment, encouraging cultural innovation and promote cultural fair exchange as the goal, in order to balance the interests of protection, flexible, comprehensive protection, respect the common principle, the main content of right object, subject of rights, the right content, right management, limitation, the term of protection the responsibility system, to make regulations. Point seven, as the premise of community intangible cultural heritage owners, recognition of intangible cultural heritage of people, external adapter, collectors in inheritance, use, collection, collation of intangible cultural heritage process, and the creative wisdom achievement still belongs to the scope of intellectual property rights. Point eight, the current protection work in some inclination to criticize. The first is to lump together "productive safeguarding" or "industry development of traditional culture."The second is the intangible cultural heritage is " living " and " inheritance " of the two important characteristics of the different interpretations and scholars. Finally, the traditional community specific as owners, they will want to first get respect, at least not to use force to violate its intention. There are two reasons, first, although the cultural heritage is heritable, but we should recognize that as a community cultural rights, including of course choose to continue to develop or let it die free. Second, respecting the subject’s intention, it will be impossible to achieve the purpose of safeguarding. |
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