国有文物“不得作为企业资产经营”辨析

State-Owned Cultural Relics “Shall not be Operated as Corporate Assets”:A Discussion

国有文物不得作为企业资产经营,是现行文物利用管理中最重要的法律规定之一。该条款作为特定历史条件下对文物普遍不合理利用现象及其后果的反应性规定,在法律文义的含义上和逻辑上存在歧义,在保障实现安全性和公益性两大立法目标的有效性上效果不佳,难以适应新形势下鼓励和规范社会力量参与文物保护利用的现实需求。碎片式法律条款无法解决文物利用中存在的风险与矛盾,应当以建设性立法思维将其纳入国有文物资产管理体系总体布局中加以考虑。

That state-owned cuhural relics shall not be operated as corporate assets is one of the most important legal provisions in the administration of cultural relics. This provision was made under certain historical conditions against the irrational utilization of cultural relics and their consequence. It has ambiguity in its meaning and logic in the legal context, and is lack of effectiveness in ensuring the two legislative goals of safety and public welfare. It fails to adapt to the real needs of encouraging and regulating the participation of social forces in cultural heritage conservation and utilization in the new situation. Fragmental legal provisions cannot solve the risks and conflicts in the utilization of cultural relics. They should be incorporated into the overall layout of the state-owned cultural relics assets management system in consideration of con- structive legislation.