考古类文物返还的法律难题及解决之策

中国在对非法盗掘流失海外的考古类文物进行合理追索时,常常面临文物来源国与市场国之间法律层面上的障碍与困局。以甘肃礼县大堡子山秦公遗址被盗金箔饰片案为例,根据中国与法国的国内法规范,分析案件争议标的物所有权移交过程中的问题,关注原物所有者、善意取得者、时效规则、国家利益与公共政策等利益的平衡。依据国际软法规定,梳理出有利于中方文物所有权永久回归的规则。摒弃以往可行性较小的诉讼解决途径,由中国国家文物局采取有理、有利、有节的方式与法国吉美博物馆进行双边协商与谈判,并以物之所有权永久回归的方式推动考古类文物的返还。

Legal conundrums and solutions of return of Chinese archaeological cultural relics

During the reasonable recourse of stolen archaeological cultural relics of China from other countries, there are always obstacles and impasse in the law system between home country and host country of cultural relics. The case is studied about the gold foils stolen from Eastern Zhou Tombs in Mountain Dapuzi, Li County, Gansu Province. According to the domestic legal provisions of China and France, the conundrums during the process of ownership transformation of disputed subject matter of the case are analyzed, and the balances are paid attention among interests of the original owner, the third person in good faith, the limitation of action, the national interest, and the public policy etc. According to the regulations of international soft law, the rules benefiting permanent return of ownership of Chinese cultural relics are summarized. The original litigation path with less feasibility is abandoned. Bilateral consultation and negotiation are exerted between China National Bureau of Cultural Relics and French Guimet Museum with rational, advantageous and articulate manners. That has promoted the return of archaeological cultural relics through permanent return of property ownership.