論埃及追索海外流失文物的法律制度
發(fā)布時(shí)間：2018-08-28 14:37
【摘要】：埃及作為四大文明古國之一,歷史文化悠久,文物寶藏不計(jì)其數(shù)。由于埃及政府漠視文物的價(jià)值,以及立法不完善和國家政局不穩(wěn)定等原因,埃及文物長(zhǎng)期遭到走私、盜竊和殖民掠奪,導(dǎo)致大量文物流失海外。主要文物出口國主張文物返還原主國,堅(jiān)持文物民族主義立場(chǎng);而文物進(jìn)口國堅(jiān)持文物國際主義立場(chǎng),認(rèn)為文物是全人類的共同利益,應(yīng)為全人類所共享。埃及作為文物出口國之一,在追索流失海外文物中逐漸形成了自己的文物追索理念,文物首先是埃及的,其次才是世界的。埃及為更有力地追索流失文物,建立了專門的文物追索機(jī)構(gòu);同時(shí)完善了埃及文物保護(hù)制度的國內(nèi)立法,國內(nèi)依據(jù)主要有1983年《文物保護(hù)法》和2010年提出的《文物保護(hù)法修訂案》。國際依據(jù)主要包括1954年《武裝沖突情況下保護(hù)文物公約》、教科文組織1970年《關(guān)于禁止和防止非法進(jìn)出口文化財(cái)產(chǎn)和非法轉(zhuǎn)讓其所有權(quán)的方法的公約》以及國際統(tǒng)一私法協(xié)會(huì)1995年通過的《國際統(tǒng)一私法協(xié)會(huì)關(guān)于被盜或者非法出口文物的公約》,1995年公約允許文物占有人,這其中包括個(gè)人,徑直對(duì)公約締約方享有管轄權(quán)的法院提出要求歸還文物的請(qǐng)求,表明該公約主張國際社會(huì)返還因非法走私以及盜竊而得的文物。但由于國際條約的缺陷,通過涉外訴訟方式追索流失海外文物遇到許多復(fù)雜問題,因此埃及常采取非訴訟的方式要求返還文物。該文通過分析United States v. Frederick Schultz案,剖析了埃及采取海外訴訟方式追索流海外文物中所遇到的法律問題,明確埃及是本國所有文物的真正所有者;“被盜”一詞在國際上普遍采取廣義解釋,有利于保護(hù)本國文化財(cái)產(chǎn);埃及設(shè)立的專門追索流失海外文物的機(jī)構(gòu)對(duì)文物追索工作發(fā)揮了重要作用。運(yùn)用綜合分析的方法闡釋埃及追索流失海外文物的法律制度對(duì)我國追索流失文物的啟示。首先應(yīng)堅(jiān)定“文物民族主義”的立場(chǎng),其次應(yīng)加強(qiáng)研究和完善我國追索海外流失文物的法律制度;建立流失文物信息檔案庫,以加強(qiáng)文物信息庫管理;完善我國文物保護(hù)的相關(guān)法律法規(guī);利用國際條約爭(zhēng)取在國際上對(duì)此問題達(dá)成統(tǒng)一共識(shí),即在對(duì)國際條約進(jìn)行修改的同時(shí),加強(qiáng)各國合作,研究追索流失文物的有效方法。
[Abstract]:Egypt, as one of the four ancient civilizations, has a long history and culture, and there are countless treasures of cultural relics. Due to the Egyptian government's disregard for the value of cultural relics, imperfect legislation and unstable political situation, Egyptian cultural relics have been smuggled, stolen and plundered for a long time, resulting in a large number of cultural relics being lost overseas. The major cultural relics exporting countries advocate the return of cultural relics to the countries of origin and adhere to the cultural relic nationalism, while the cultural relic importing countries adhere to the cultural relics internationalism position and hold that cultural relics are the common interests of all mankind and should be shared by all mankind. Egypt, as one of the cultural relics exporting countries, has gradually formed its own concept of cultural relic recovery in the process of recovering the lost cultural relics abroad. The cultural relics are first of Egypt's and second of the world's. In order to recover the lost cultural relics more effectively, Egypt has established a special institution for the recovery of cultural relics. At the same time, it has perfected the domestic legislation of Egypt's cultural relics protection system. The domestic basis mainly includes the 1983 Law of Cultural relics Protection and the 2010 Amendment of the Law on the Protection of Cultural relics. The international basis includes, inter alia, the 1954 Convention for the Protection of Cultural objects in the context of Armed conflict, the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit Import, Export and transfer of ownership of Cultural property, and international law The International Institute for the Unification of Private Law Convention on stolen or illegally exported Cultural objects, adopted by Unidroit in 1995, which permits the possessor of cultural objects, These include individual requests for restitution of cultural objects directly against courts of jurisdiction of parties to the Convention, indicating that the Convention advocates the return by the international community of cultural objects obtained as a result of illicit smuggling and theft. However, due to the defects of international treaties, there are many complicated problems in pursuing the loss of overseas cultural relics by means of foreign-related litigation, so Egypt often takes non-litigation means to demand the return of cultural relics. By analyzing the United States v. Frederick Schultz case, this paper analyzes the legal problems encountered in Egypt's recourse to overseas cultural relics through overseas litigation, and clarifies that Egypt is the real owner of all cultural relics in its own country. The term "stolen" is generally interpreted broadly in the international community, which is conducive to the protection of national cultural property, and the institution specially set up in Egypt to recover cultural relics lost abroad has played an important role in the work of cultural relics recovery. This paper uses the method of comprehensive analysis to explain the enlightenment of Egypt's legal system of recovering lost overseas cultural relics to our country. Firstly, we should strengthen the stand of "cultural relic nationalism", secondly, we should strengthen the research and improve the legal system of our country to pursue the lost cultural relics abroad, and establish the archives of lost cultural relics information to strengthen the management of cultural relic information database. To perfect the relevant laws and regulations of cultural relic protection in our country, and to make use of international treaties to reach a unified consensus on this issue, that is, to strengthen the cooperation of various countries while revising the international treaties, and to study the effective method of recovering the lost cultural relics.
【學(xué)位授予單位】：湘潭大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D941.1;DD912.1
本文編號(hào)：2209675
[Abstract]:Egypt, as one of the four ancient civilizations, has a long history and culture, and there are countless treasures of cultural relics. Due to the Egyptian government's disregard for the value of cultural relics, imperfect legislation and unstable political situation, Egyptian cultural relics have been smuggled, stolen and plundered for a long time, resulting in a large number of cultural relics being lost overseas. The major cultural relics exporting countries advocate the return of cultural relics to the countries of origin and adhere to the cultural relic nationalism, while the cultural relic importing countries adhere to the cultural relics internationalism position and hold that cultural relics are the common interests of all mankind and should be shared by all mankind. Egypt, as one of the cultural relics exporting countries, has gradually formed its own concept of cultural relic recovery in the process of recovering the lost cultural relics abroad. The cultural relics are first of Egypt's and second of the world's. In order to recover the lost cultural relics more effectively, Egypt has established a special institution for the recovery of cultural relics. At the same time, it has perfected the domestic legislation of Egypt's cultural relics protection system. The domestic basis mainly includes the 1983 Law of Cultural relics Protection and the 2010 Amendment of the Law on the Protection of Cultural relics. The international basis includes, inter alia, the 1954 Convention for the Protection of Cultural objects in the context of Armed conflict, the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit Import, Export and transfer of ownership of Cultural property, and international law The International Institute for the Unification of Private Law Convention on stolen or illegally exported Cultural objects, adopted by Unidroit in 1995, which permits the possessor of cultural objects, These include individual requests for restitution of cultural objects directly against courts of jurisdiction of parties to the Convention, indicating that the Convention advocates the return by the international community of cultural objects obtained as a result of illicit smuggling and theft. However, due to the defects of international treaties, there are many complicated problems in pursuing the loss of overseas cultural relics by means of foreign-related litigation, so Egypt often takes non-litigation means to demand the return of cultural relics. By analyzing the United States v. Frederick Schultz case, this paper analyzes the legal problems encountered in Egypt's recourse to overseas cultural relics through overseas litigation, and clarifies that Egypt is the real owner of all cultural relics in its own country. The term "stolen" is generally interpreted broadly in the international community, which is conducive to the protection of national cultural property, and the institution specially set up in Egypt to recover cultural relics lost abroad has played an important role in the work of cultural relics recovery. This paper uses the method of comprehensive analysis to explain the enlightenment of Egypt's legal system of recovering lost overseas cultural relics to our country. Firstly, we should strengthen the stand of "cultural relic nationalism", secondly, we should strengthen the research and improve the legal system of our country to pursue the lost cultural relics abroad, and establish the archives of lost cultural relics information to strengthen the management of cultural relic information database. To perfect the relevant laws and regulations of cultural relic protection in our country, and to make use of international treaties to reach a unified consensus on this issue, that is, to strengthen the cooperation of various countries while revising the international treaties, and to study the effective method of recovering the lost cultural relics.
【學(xué)位授予單位】：湘潭大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D941.1;DD912.1
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 王瑩;流失文物回歸的法律問題研究[D];新疆大學(xué);2012年
，本文編號(hào)：2209675
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