公私利益平衡:比较法视野下的文物所有权限制与补偿

Balance of Public & Private Interest: A Comparative Study on Restrictions& Compensation of the Property Rights of Cultural Relics

文物是历史之鉴证,也是重要的文化资源,承载着公共利益。因文物保护而对私人所有权进行限制的理论和制度普遍存在。但要求一部分人为全社会共同利益做出特别牺牲而忽视其正当权益,将导致公益与私益的失衡,违背现代法治的基本精神,偏离文物保护的根本目标。大陆法系和英美法系的文物所有权限制理论与实践存在差异,补偿范围和方法也不尽相同,其中有些经验可为我国建立文物所有权补偿机制提供借鉴。我国文物立法应明确对私人所有权限制的补偿,对受偿主体、补偿范围和补偿方式做出规定,引导所有权人更加科学、合理地利用文物,平衡公益与私益,实现文物保护和私权保障的双赢。

Cultural Relics,as a witness to history and cultural resources at present,carries some public interest.Theories and institutions aiming at restricting private property rights for the protection of cultural relics exist in many countries.However,it is unfair to ignore the private interest of private property owners who have made special sacrifices for the common interest of the whole society,which leads to the imbalance of public and private interest.That is against the modern law spirit as well as the fundamental goal of cultural relics protection. Theories and practices of restricting private ownership for the protection of cultural relics in Civil Law System are different from those in Common Law System,the extent and methods of compensation between these two legal systems are also different. However,some of them have significantly referential meanings for the establishment of the compensation mechanism in China.Cultural relics legislations in China should ensure the right of private owners to get compensation for the restriction of their ownership,clearly stipulate the subjects to be compensated as well as the extent and methods of compensation.Moreover,it should provide instructions for the private owners to make more scientific and rational uses of their cultural relics,in order to achieve the balance of public and private interest.