A Study Of Operational Right Of State-owned Cultural Relic

The issue about the operational right of state-owned cultural relic comes directly from the separation of state-owned cultural relic's property right and operational right, and from the practice for solving problems in the current operational system of state-owned cultural relic by transforming operational right in manner of cooperation, joint venture, leasehold, and auction. Because of the lack of national legislation in this field, different areas have different methods. The transformation helps to increase the conservation fund of state-owned cultural relic and thus improve the conservation work of it. However, the transformation has aroused strong objection from direct department and drawn great attention among the society for the damage to some state-owned cultural relics. Consequently, a hot debate about the operational right of state-owned cultural relic arises to horizon. In order to find out the way to transform the active operational system of state-owned cultural relic, the author makes study on this controversial issue to solve the problem of conservation fund shortage and the contradiction between conservation work of state-owned cultural relic and local economy development, and finally comes up with a suggestion to establish a sustainable operational system suitable for the situation of China.According to fundamental theories of economics, theories of cultural relic, theories of law, theories of real rights law, combined with the features of state-owned cultural relic and tourism, this paper firstly analyses the necessity and feasibility of operational right of state-owned cultural relic, then systematically analyses operational right of state-owned cultural relic from a theory of real rights law point of view, finally designs the system of operational right of state-owned cultural relic. From the angle of logical analysis, firstly in the preface, the paper raises the problem and expounds basic attitude about relevant problems. Secondly, the paper systematically analyses the necessity and feasibility of operational right of state-owned cultural relic using related economics, cultural relic and law principles. Thirdly, the paper further proves the necessity and feasibility of operational right of state-owned cultural relic using empirical analysis. Fourthly, the paper systematically analyses operational right of state-owned cultural relic using real rights law principles, and researches such questions as nature, content, protection and surveillance of operational right of state-owned cultural relic. Fifthly, the paper gives basic conclusions and legal advice.The paper is made up of preface, five chapters and conclusion.The preface is a brief description about the outline, structure and basic views.The first chapter is an outline of operational right of state-owned cultural relic, mainly on feature and value of state-owned cultural relic. The author put forward that state-owned cultural relic should be defined as state-owned resources property and pay equal attention to its economic value and the historical, artistic, the scientific value. The author gives a definition of operational right of state-owned cultural relic from viewpoint of a theory of real rights law.The second chapter is researches for the necessity of operational right of state-owned cultural relic. The author analyses the problems in the active operational system of state-owned cultural relic, then puts forward that our national conditions need operational right of state-owned cultural relic.The third chapter is the active researches for the feasibility of operational right of state-owned cultural relic. The author analyses the theories and practices of operational right of tourist resources in our country, then indicates the object of operational right of state-owned cultural relic is particular, so operational right of state-owned cultural relic is different from operational right of tourist resources. The author analyses the feasibility of operational right of state-owned cultural relic by agreement using empirical analysis of Fenghuang county of Hunan province. The author summarizes its experiences, and then points out the problems.The fourth chapter is mainly an analysis about operational right of state-owned cultural relic from a theory of real rights law point of view, which is the core of this paper. By analyzing the problems in the traditional theory of real rights law, the author indicates that operational right of state-owned cultural relic is not the usufructuary right. According to the theory of the system of dualistic framework of real right, the author indicates that operational right of state-owned cultural relic is resource-using real rights, which is equal to property right. The author indicates that the principles of establishment, change, abalienating, elimination of operational right of state-owned cultural relic, and designs the content. Operational right and ownership of state-owned cultural relic should be protected coequally. The owner of state-owned cultural relic officiating intervention and the department of government officiating superintendence must obey the law. For conservation work of state-owned cultural relic, operational right of state-owned cultural relic should be restricted in subject and abalienating.The fifth chapter offers legal suggestions of establishment of operational right of state-owned cultural relic. The author suggests amending"People's Republic of China cultural relic conservation law"and constitute"operational right of state-owned cultural relic administerial byelaw"for prescribing the contents of operational right of state-owned cultural relic.The conclusion is a summary of the academic achievements of this paper.Based on the ready academic achievements, the paper has innovations in the following areas: (1) the author analyses the feature of state-owned cultural relic resources, indicates that it is not realistic that we regard state-owned cultural relic as state-owned commonweal property. Nowadays, regarding state-owned cultural relic as state-owned resources property is in accord with the feature of state-owned cultural relic and the condition of our country. We should think much of the economic value of state-owned cultural relic. (2) In the ready academic achievements, the object of resource-using real rights includes natural resource and public resource. The author indicates that operational right of state-owned cultural relic is resource-using real rights, which is equal to property right.(3) The operational right of state-owned cultural relic should be restricted.