我国文化法学的内涵与原则

The Essence and Principles of Cultural Law in China

文化法学的首要问题是文化之内涵。法学语境中的文化不应做太过宽泛的理解,作为文化法调整规范对象的文化,应当限定为与物质文明相对的人类精神文明成果。文化法治化源自国家文化利益、民族文化利益和个人文化利益需要法治加以确认与保护。目前,我国文化法治仍然处于较为初级的文化立法建设阶段,尚需国家根据立法难度和社会发展需要统筹安排、先易后难,分阶段分步骤推进实施后续文化立法工作。我国文化法包含文化基本法、文化事业法、文化产业法三个层次。其中,文化基本法是总则部分,文化事业法是分则中的公法部分,文化产业法是分则中的私法部分。文化法的目标旨在实现文化传承、文化发展和文化价值,充分发挥文化在社会发展进步中的功能。基于此,我国文化法应当坚持马克思主义指导下的文化多样性原则,促进文化创新原则,社会效益优先、社会效益与经济效益相统一原则。

On February 26,2023,China issued the“Guideline on Strengthening Legal Education and Theoretical Research in the New Era”,which points out clearly the need to optimize the system of the discipline of law meeting the new requirements of building the rule of law such as constructing cultural law and other disciplines.The primary issue of cultural law is the connotation of culture.Whether in China or Western countries,culture has rich and broad historical connotations,and it continues to enrich and improve with the development of the times.Culture in the legal context should not be understood too broadly.As is subject to cultural law,culture should be limited to human spiritual life or spiritual civilization achievements that are opposite to material civilization.The value of law exists in the specific relationship between human needs and the satisfaction of human needs by law.The rule of law in culture stems from state cultural interests,national cultural interests and individual cultural interests which need to be confirmed and protected by the rule of law.Since the Reform and Opening-up,China has constantly strengthened its emphasis on cultural rule of law by increasing the quantity of cultural legislation and initializing the systematization of cultural law.Nevertheless,the cultural rule of law in China is still in a relatively early stage of structuring cultural legislation,and it is necessary for the State to make overall arrangements according to the legislative difficulties,and gradually promote the implementation of follow-up cultural legislation in a phased manner.The cultural law is stratified with three levels:the basic law of culture,the cultural undertakings law,and the cultural industry law.The basic law of culture is the part of the general provisions,the cultural undertakings law is the public law part of the special provisions,and the cultural industry law is the private law part of the special provisions.The cultural undertakings law is not an isolated field of cultural law.The parallel development of cultural undertakings and cultural industries is significant progress in cultural law,which can bring more contributions to cultural development.The cultural industry law should leave space for the development of the cultural industry,and the cultural industry law should also maintain the bottom line and boundaries of the development of the cultural industry.The relation and interaction between the two are worth studying.Legal principles are the intersection of legal rules and values.The basic principles of cultural law are fundamental norms that run through the entire process of cultural legislation,judiciary,and enforcement.The basic principles of cultural law need to be established upon the aim of cultural law,while respecting the rules inherent in cultural development,adhering to the principles of public management,respecting industry and market norms,and reflecting the cultural policies of a specific period and their underlying value.The purpose of the cultural law is to maintain cultural heritage,promote cultural development,and realize cultural value,that is,to fully realize the value and function of culture in social development and progress.Based on the above-said purpose,the cultural law should adhere to three basic principles,which are cultural diversity under the guidance of Marxism,promoting cultural innovation,and harmonizing the social benefits and economic benefits with the former as a priority.