On The Cross-border Recourse Of The Outflow Of Cultural Relics

From victors’ plundering defeated nation’s cultural relics as booty at the war time tocultural relics smuggling evolved into the second largest international crime after drugsduring the modern period, the outflow of cultural relics has caused concern to internationalsociety. In order to protect the interests of the relics of the country of origin and ensure thenormal operation of the relics market, the vast majority of countries have favored outflowof cultural relics returned, and actively explored a variety of recourse. Because of the hugeeconomic interests and special cultural value of relics, outflow of relics recovered throughthe international civil procedure is not optimistic.At present, the general civil and its procedure rules applicable to cross-cultural relicslitigation are flawed. Firstly, cultural relics is a movable and tangible property, easy tocarry. If we blindly apply to the jurisdictional rules of relics location and lex rei sitae incases of cross-cultural relics, illegal staff will select favorable nations to transfer them. Thestate’s sovereign immunity may hinder the exercise of the jurisdiction. Secondly, ifcountries obtain ownership through legislation, the court may refuse recognize or enforcethe law. Moreover, bona fide acquisition in the civil law systems and the prescriptionsystem is not favorable to the original owners of the relics.Fortunately, there are some countries have promulgated special laws to regulate thetransfer of relics now. These laws taking into account the particularity of relics, are moreconducive to the return of relics. The Minimum Contact in the United States, the newdevelopment of the prescription system, the recognition of state’s commercial activity andno bona fide acquisition in Anglo-American legal systems improve the traditionalproceeding rules and have a significant role in promoting the return of relics.In the face of the massive outflow of relics, China usually make use of the repurchase,the donor, diplomatic and other non-legal recourse. Less use of the international civilaction, is not only because of these proceedings’ defects, but also because of lack of relevant laws and regulations. From aspects of international and domestic law, this articlemakes recommendations to improve the status quo of recourse of outflow of cultural relicsin China.