《民法典》视野下的埋藏文物归属制度:审视与重构

The Ownership System of Buried Cultural Relics in the Perspective of Civil Code:Examination and Reconstruction

《民法典》埋藏物制度与《文物保护法》第5条第1款耦合形成埋藏文物归属制度。依据该制度,所有权人明确的埋藏文物并非物归原主,而是与所有权人无法查明的、无所有权人的埋藏文物一样归于国家。该处理结果体现制度欠缺正当性,私有财产保护秩序因之遭遇冲击,民事主体丧失财产权亦欠缺法理基础,《文物保护法》之规范目的更是受到僵化贯彻。埋藏文物一体交由《文物保护法》处理,加上《文物保护法》采一体处理模式,导致制度出现问题。调整埋藏物制度与返还原物制度之分工或者《文物保护法》改采区分处理模式将是制度重构的有效路径。

The system of buried objects in the Civil Code is coupled with the first paragraph of article 5 of the Law on the Protection of Cultural Relics to form the ownership system of buried cultural relics.According to this system,the buried cultural relics that the owner has made clear are not returned to the original owner,but belong to the state same as the buried cultural relics that can not be identified by the owner or have no owner.The result shows that the system is lack of legitimacy,the order of private property protection is under impact,and the loss of private property rights lacks legal basis,and the normative intention of the Law on the Protection of Cultural Relics is rigidly implemented.The buried cultural relics are handed over to the Law on the Protection of Cultural Relics for treatment,and the Law on the Protection of Cultural Relics adopts the integrated treatment mode,which leads to problems in the system.It is an effective way to reconstruct the system by adjusting the division between the system of buried objects and the system of returning original property,or by adopting the distinctive treatment mode in the law of cultural protection.