文物民事公益诉讼的理论构成与制度构造

The Theoretical Composition and Institutional Structure of Civil Public Interest Litigation on Cultural Relics

目前我国司法实践中已经出现通过环境公益诉讼保护文物的情况,由于文物所承载的社会公共利益具有特殊性,其在类型、性质与内容上均不同于环境社会公共利益,在环境公益诉讼中受到侵害的文物仍然难以获得全面救济。建议修改《文物保护法》,明确规定对破坏文物致使社会公共利益受到损害的行为可以提起公益诉讼,并且将行政机关、社会组织规定为第一顺位的原告,将检察机关规定为第二顺位的起诉人。

At present,there have been cases of protecting cultural relics through environmental public interest litigation in China's judicial practice.Due to the particularity of the social public interest carried by cultural relics,which is different from the environmental social public interest in terms of type,nature and content,it is still difficult to obtain comprehensive relief for cultural relics that have been infringed in environmental public interest litigation.It is suggested that the Law on the Protection of Cultural Relics be amended to clearly stipulate that public interest litigation can be brought against acts that damage the public interest of cultural relics,and that administrative organs and social organizations should be the first plaintiffs and procuratorial organs should be the second plaintiffs.