| Under the influence of war,complicated international political situation and other factors,cultural relics in many countries have been lost to varying degrees.In the face of the difficulty of recourse,the low success rate,the complicated restriction factors and the immature relevant norms,the process of recourse in China is very difficult to promote.In terms of domestic legislation,the evidence rules for cultural relics recovery are not easy to determine,and the rules of ownership and exclusion are vague.In the process of the implementation of the Civil Code,the relevant laws also lack specific general provisions and are not clear in application.In international law,there are some problems,such as vague provisions of the convention,unclear retroactivity of the convention and unclear limits of the scope of application of the treaty,which need to be studied at the theoretical level.This paper discusses the above problems from two aspects of domestic and foreign laws,and finds out the legal path of Chinese cultural relics recovery and protects the related rights of Chinese cultural relics.The first chapter introduces the general theory of recovering the lost cultural relics overseas,including the discrimination of related concepts of cultural relics,the current situation of the loss of cultural relics in China,the legal basis of international law for the protection of lost cultural relics,including international conventions,bilateral or multilateral conventions that China has joined,general principles of international law,and international judicial assistance system.The second chapter mainly focuses on the practical legal dilemmas encountered by China in the process of recovering the lost cultural relics from overseas,analyzes the domestic legislation and international conventions one by one,and discusses the reasons for the obstacles caused by relevant constraints.The third chapter then arranges the typical cases of successful recourse at home and abroad at the present stage,by horizontal comparison,combs their successful recourse experience,analyzes their recourse ways between countries,and summarizes the relevant methods that can be used for reference here and applicable to our judicial practice.The fourth chapter focuses on the analysis of the application of the international conventions and domestic laws that China needs to trace the lost cultural relics overseas,and finally puts forward the general provisions including improving the evidence traceability mechanism,improving the bona fide acquisition and the exclusivity of ownership at the legislative,judicial and law enforcement levels.Establishing the coordination mechanism of domestic legislation and international conventions,enhancing the applicability and completeness of international conventions and other feasible suggestions can improve the level of tracing lost cultural relics in our country.In view of the historical problem of tracing lost cultural relics,based on China’s national conditions,it is necessary to actively improve the relevant domestic legislative system,but also actively promote the reform of relevant international rules,with the coordinated development of domestic legislation and international conventions as the fundamental guidance,and gradually optimize law enforcement standards,in order to maximize the legal level to help the return of lost cultural relics. |
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