A Study On The Application Of Law In International Litigation Of Cultural Property Recovery

This paper mainly analyses the legal application of cultural property resource under the background of transnational litigation,and divides it into four parts to discuss,hoping that the return of lost overseas cultural property in our country can gain a little experience.Chapter 1 elaborates the general issues of the controversy over the return of cultural property,mainly introducing the research theme and defining the scope of the study.The first section clarifies the concepts of cultural property and loss of cultural property.By comparing the definitions of cultural property in several international conventions and China’s domestic laws,it emphasizes the two essential elements of tangibility and national emotion in defining cultural property.It also points out that armed conflicts,theft and smuggling are the important reasons for the loss of cultural property.Section II points out that ownership is the core issue of the dispute over the return of transnational cultural property in the way of litigation,and then introduces the different provisions of bona fide acquisition system in the two legal systems to elaborate the root causes behind such disputes.Section III introduces the three international conventions on the recovery of lost cultural property by the international community,explains the limitations of the retroactivity of the recovery of outflow cultural property by means of international conventions,and finally settles in the mode of transnational litigation,and defines the research scope of the paper through the method of legal choice,which is the core issue of the recovery of lost cultural property overseas.Chapter 2 mainly analyses the applicable rules of law for recovering cultural property lost abroad under the mode of litigation.The first section briefly introduces the current situation of the international community in the formulation of conflict law norms and judicial practice in resolving the problem of cultural property recourse,selects the relevant rules of the International Law Society,Belgium and the European Union on resolving disputes over the ownership of cultural property concerning foreign countries,discusses the current situation of the international community in formulating conflict law norms for resolving the problem of cultural property recourse,and combines recent years.The typical case of Iran v.Berend,which was tried by British courts,leads to such problems as identification,choice of law,recognition of foreign law and so on when the courts apply the law to such cases.Section II discusses the problems that must be solved before the application of this law is recognized,including the identification of the nature of the dispute and the identification of the subject matter of the dispute,and illustrates the difficulties of the court in dealing with the identification of cultural property with specific cases.Section III introduces the important legal options for dealing with disputes over cultural property lost abroad,such as the rules of the law of the place of things,the rules of the country of origin and the rules of the closest link.It also combs and evaluates the relevant rules of law application from the pros and cons.Section IV analyses the application of foreign law in disputes over cultural property involving foreign countries,mainly from the general principles and judicial practice.The recognition of foreign cultural property protective laws by courts in such cases is discussed from three aspects of development trend.Chapter 3 discusses the legal application of Chinese recourse to cultural property.Section I introduces the subject,object and content of the state ownership of cultural property from the aspect of legislation of state ownership of cultural property.From the aspect of export control law of cultural property,it elaborates the relevant laws governing the exit management of cultural property in China,including the scope of cultural property prohibited and restricted,the way of exit of cultural property and the special provisions of exhibition abroad.Ownership legislation and export control law constitute the legal basis for the recovery of cultural property in China.Section 2 points out the possible obstacles to the application of law in the recovery of lost cultural property through cross-border litigation in China from two directions of substantive law and conflict law.The substantive law mainly includes the problems mentioned above in national ownership legislation and export control law.The main purpose of conflict law is to explore that China has not yet enacted conflict law legislation specifically for cultural property.Directly adopting the general provisions of the Law Applicable to Movable Property Rights has a negative impact on the cultural property recourse;Section III,aiming at the current problems in the legal application of cultural property in China,puts forward its own suggestions from the angle of perfecting substantive law and conflict law legislation,especially in the field of conflict law,advocates that since the establishment of the source country law rules should be the main body and the parties should be appropriately absorbed.The autonomy of the will and the location of the object in the lawsuit are the factors to construct our country’s cultural property conflict law norms.Chapter 4 is mainly summarized in the first three parts.It is pointed out that due to the highly international nature of the transfer of cultural property,disputes over the recovery and return of cultural property will still exist for a considerable period of time in the future.However,relying on relevant legislation and judicial practice,a series of principles which are generally agreed by the international community are constantly taking shape,and cultural property will be lost at home and abroad in the future.The application of the law of property recourse is bound to be more open and cooperative.