Cultural relics carry splendid civilization, inherit history and culture, and maintain the national spirit. The protection of cultural relics serves the contemporary and future generations. In recent years, the momentum of cultural relics crimes has been effectively curbed due to the vigorous crackdown and strict prevention by the public security organs and the cultural relics administrative departments. However, driven by huge profits, cultural relics crimes still occur from time to time, and new situations and new problems have emerged, which troubles the practice of case handling. In view of this, the Supreme People's Court, Supreme People's Procuratorate, the Ministry of Public Security, and the State Administration of Cultural Heritage jointly formulated the "Opinions on Handling Several Issues Concerning the Handling of Criminal Cases Obstructing the Management of Cultural Relics" (Gongtongzi [2022] No. 18, hereinafter referred to as "Opinions"), released on September 5, 2022.
The "Opinions" adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, thoroughly implement Xi Jinping Thought on the Rule of Law, resolutely implement the spirit of General Secretary Xi Jinping's series of important expositions on cultural relics work, and emphasize the importance of punishing cultural relics crimes in accordance with the law and strengthening the protection of cultural relics. The people's courts, people's procuratorates, public security agencies, and cultural relics administrative departments at all levels are required to punish and effectively prevent cultural relics crimes in accordance with the law and effectively protect the security of national cultural heritage. The main contents of the "Opinions" are as follows:
First, it is to further clarify the identification of relevant behaviors that hinder the management of cultural relics. "Opinions" clearly states that the excavation of ancient cultural relics and ancient tombs contained in immovable cultural relics such as ancient buildings and grotto temples is in compliance with the provisions of Article 328 of the Criminal Law. , investigate criminal liability for the crime of ancient tomb burials, and clarify the criteria for identifying "repeated excavations". Regarding the situation where the attempted theft of immovable cultural relics using destructive means simultaneously constitutes other cultural relic crimes, the "Opinions" clearly choose one of the serious crimes and punish it. The "Opinions" also based on the practice of handling cases, made guiding provisions on the identification of "knowingly" in the crime of concealing and concealing criminal proceeds and "for the purpose of profit" in the crime of reselling cultural relics.
The second is to further standardize the identification and appraisal evaluation procedures of cultural relics involved in the case. "Opinions" clearly states that matters such as whether the cultural relics involved in the case belong to specific categories of immovable cultural relics such as ancient cultural sites and ancient tombs, whether they have historical, artistic, and scientific value, and the extent of damage and value impact caused by relevant actions on the cultural relics can all be investigated. Identification, identification and evaluation, and requires that the identification and evaluation report should be issued in accordance with the procedures and format text specified in the " Management Measures for the Identification and Evaluation of Cultural Relics Involved in Cases ".
The third is to further clarify the jurisdiction of cultural relics crime cases. According to the "Opinions", the crime places of cultural relics crime cases include not only the tool preparation place, the exploration place, the illegal excavation place, but also the actual acquisition place, hiding place, transfer place, processing place, storage place, etc. of the cultural relics involved in the case, in order to solve the practical problem The jurisdictional problem of "from thing to case" in the case. At the same time, in order to facilitate the investigation of facts and improve the efficiency of case handling, the "Opinions" also provide for the combined handling of criminal cases that impede the management of cultural relics.
Fourth, further implement the criminal policy of combining leniency with severity. "Opinions" stipulates that those who play a major role in joint crimes can be identified as principal culprits in accordance with the law, and the cultural relics crime network can be cracked down on the entire chain; those who have cultural relics illegal records or criminal records and state staff who commit related crimes may be severely punished as appropriate. ; Those who surrender, perform meritorious services, plead guilty and accept punishment will be treated leniently in accordance with the law. At the same time, the "Opinions" also require the transition of executions to , and a comprehensive crackdown on cultural relics crimes.
In the next step, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the State Administration of Cultural Heritage will guide local people's courts, people's procuratorates, public security agencies, and cultural relics administrative departments at all levels to strictly implement the criminal law, Cultural Relics Protection Law and the "Opinions" Relevant regulations, accurately grasp policy requirements, standardize case handling procedures, effectively prevent and combat cultural relics crimes, and effectively protect the security of national cultural heritage.
Gongtongzi [2022] No. 18
Supreme People’s Court Supreme People’s Procuratorate
Ministry of Public Security Opinions of the State Administration of Cultural Heritage
on several issues regarding the handling of
criminal cases that impede the management of cultural relics
Higher People's Courts of all provinces, autonomous regions and municipalitiesHigher People's Court, People's Procuratorate, Public Security Department (Bureau), Cultural Relics Bureau (Culture and Tourism Department/Bureau), Xinjiang Uygur Autonomous Region Higher People's Court Production and Construction Corps Branch, Xinjiang Production and Construction Corps People's Procuratorate , Public Security Bureau and Cultural Relics Bureau:
In order to punish cultural relics crimes in accordance with the law and strengthen the protection of cultural relics, according to the " Criminal Law of the People's Republic of China ", " Criminal Procedure Law of the People's Republic of China " and " China The Cultural Relics Protection Law of the People's Republic of China " and the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Impeding the Management of Cultural Relics" (Fa Interpretation [2015] No. 23, hereinafter referred to as the "Cultural Relics Crime Interpretation") and other related This opinion is formulated based on the regulations and judicial practice.
1. General requirements
Cultural relics carry splendid civilization, inherit historical culture, and maintain the national spirit. They are witnesses of the historical development of the country and nation, precious wealth that promotes China’s excellent traditional culture, and are important tools for cultivating socialist core values and cohesion and co-construction. The profound nourishment of the majestic power of the Chinese Dream. Protecting cultural relics is of contemporary benefit and will benefit the future. At present, the security situation of cultural relics in our country is still severe, cultural relic crimes occur from time to time, criminal gangs are becoming more professional and intelligent, criminal activities are spreading to network development , the criminal industry chain is becoming increasingly mature, illegal transactions in underground markets are rampant, and there are serious social problems. Hazardous. People's courts, people's procuratorates, public security organs, and cultural relics administrative departments at all levels must adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, resolutely implement the spirit of General Secretary Xi Jinping's series of important expositions on cultural relics work, and inherit Chinese civilization and contribute to the country. The family has a strategic view of being responsible for the nation and future generations, raising awareness of the importance of cultural relics protection, enhancing the sense of responsibility and urgency of mission, having the courage to take responsibility, faithfully performing duties, punishing and effectively preventing cultural relics crimes in accordance with the law, and effectively protecting the national cultural heritage. Safety.
2. Punish cultural relic crimes in accordance with the law
(1) Accurately identify illegal excavations
1. Excavation of ancient cultural sites and ancient tombs contained in immovable cultural relics such as ancient buildings and grotto temples is in compliance with the provisions of Article 328 of the Criminal Law will be held criminally responsible for the crime of robbing ancient cultural sites and ancient tombs.
Whether the excavated objects belong to ancient cultural sites or ancient tombs shall be determined in accordance with the provisions of Articles 8 and 15 of the Interpretation of Cultural Relics Crimes.
2. Drilling, blasting, excavation and other operations are carried out on the surface of ancient cultural sites and ancient tombs for the purpose of excavation. Due to reasons other than will, the historical, artistic and scientific value of ancient cultural sites and ancient tombs have not been damaged. This is classified as robbing ancient sites. Attempted cultural relics and ancient tombs should be dealt with separately according to the circumstances:
(1) If they are determined to be national key cultural relics protection units , provincial cultural relics If the ancient cultural sites and ancient tombs in cultural relics protection units are targeted for excavation, criminal responsibility shall be investigated; , the organizers and active participants of the excavation gangs should be held criminally responsible;
(3) If other ancient cultural sites and ancient tombs are targeted for excavation, criminal responsibility will be pursued in accordance with the law for serious cases.
If the conduct specified in the preceding paragraph constitutes the crime of intentional damage to cultural relics or the crime of intentional damage to scenic spots and historic sites as stipulated in the first and second paragraphs of Article 324 of the Criminal Law, he shall be convicted and punished in accordance with the provisions of heavier penalties.
3. “Multiple excavations” as stipulated in Item 3 of Article 328, Paragraph 1, of the Criminal Law refers to the theft of excavations more than three times.If the perpetrator carries out continuous excavations within a certain range around the same ancient cultural site or ancient tomb based on the same or generalized criminal intent, which has damaged the historical, artistic, and scientific value of the ancient cultural site or ancient tomb, it should generally be regarded as a single excavation.
(2) Accurate identification of theft
Attempts to steal immovable cultural relics such as ancient buildings, cave temples, stone carvings, murals, important modern historical sites and representative buildings by using destructive means have the following circumstances: Any one of them shall be investigated for criminal responsibility in accordance with the law:
1. Theft of building components, murals, sculptures, stone carvings, etc. from national key cultural relics protection units and provincial cultural relics protection units, damaging the historical, artistic, and scientific value of the cultural relics themselves, the circumstances are serious of;
2. Targeting the entire cultural relics protection unit at or above the city or county level as the target of theft;
3. Causing damage to the immovable cultural relics of any cultural relics protection unit at or above the city or county level;
4. Theft of architectural components, murals, sculptures, stone carvings, etc. among immovable cultural relics, and the parts involved have historical, artistic, and scientific value equivalent to the cultural relics of level three or above;
5. Other serious circumstances.
If the conduct specified in the preceding paragraph constitutes the crime of intentional damage to cultural relics or the crime of intentional damage to scenic spots and historic sites as stipulated in the first and second paragraphs of Article 324 of the Criminal Law, he shall be convicted and punished in accordance with the provisions of heavier penalties.
(3) Accurate identification of cover-up, concealment and reselling
1. Knowing that the cultural relics are obtained by stealing cultural relics, excavating ancient cultural sites, ancient tombs and other crimes, harboring, transferring, acquiring, processing, selling on behalf of others or concealing them in other ways , concealment that complies with the provisions of Article 9 of the "Interpretation of Cultural Relics Crimes" shall be subject to criminal liability for the crime of concealing or concealing the proceeds of crime as stipulated in Article 312 of the Criminal Law.
To determine whether it is "knowingly", it should be based on the perpetrator's cognitive ability, past experience, number of acts and means, the relationship with the person who commits crimes such as excavation, theft, and reselling of cultural relics, the profit situation, whether he deliberately avoids investigation, and the cultural relics involved in the case. Subjective and objective factors such as appearance, price, etc. will be comprehensively reviewed and judged. If the perpetrator is unable to give a reasonable explanation under any of the following circumstances, he or she may be deemed to have "knowingly", except where there is evidence to the contrary:
(1) Using slang, code words, etc. to conduct contact transactions;
(2) Pretending to do so , hiding cultural relics and other methods to avoid inspection , or resist inspection by violence or other means;
(3) Have been held criminally responsible for committing crimes such as excavation, theft, smuggling, reselling of cultural relics, or have received administrative penalties within two years;
(4) There is other evidence sufficient to prove the behavior Situations that people should know.
2. Selling or acquiring, transporting, and storing for sale "cultural relics prohibited from sale and purchase by the state" stipulated in Article 51 of the "Cultural Relics Protection Law of the People's Republic of China" can be combined with the perpetrator's professional experience, cognitive ability, and criminal record , confession, price, frequency, number of transactions, location, source, appearance, etc. of the cultural relics were comprehensively reviewed and judged, and it was determined that his behavior was "for profit" as stipulated in Article 326 of the Criminal Law, but the source of the cultural relics complied with Except as provided in Article 50 of the Cultural Relics Protection Law of the People's Republic of China.
3. Identification and appraisal evaluation of the cultural relics involved in the case
Special issues such as the level, category, and value of the cultural relics involved in the case, such as whether they belong to ancient cultural sites, ancient tombs, ancient buildings, cave temples, stone carvings, murals, and important modern and modern historical sites and representative buildings and other immovable cultural relics, whether they have historical, artistic, scientific value, and whether they are In cultural relics protection units at all levels, if the cultural relics administrative department has made a determination before the case, whether it is a precious cultural relic, as well as the degree of damage caused by the relevant behavior to the cultural relics and the impact on the value of the cultural relics, it can directly determine the facts of the relevant case; If no determination has been made before the case occurs, the determination can be made based on the "Cultural Relics Identification and Assessment Report" issued by the agency designated by the cultural relics administrative department of the State Council. If necessary, the case handling agency may request the cultural relics administrative department to provide explanations on relevant issues in accordance with the law. The "Case-Involved Cultural Relics Appraisal and Evaluation Report" shall be issued in accordance with the procedures and format text specified in the "Case-Involved Cultural Relics Appraisal and Evaluation Management Measures" (Cultural Relics Bofa [2018] No. 4).
4. Jurisdiction over cultural relics crime cases
Cultural relics crime cases are generally under the jurisdiction of the public security organs at the place of crime, including the preparatory work for cultural relics crimes. The plot of land, the tool preparation place, the exploration place, the illegal excavation place, the theft place, the passing place, the trading place, the reselling information release place, the export (boundary) place, the location of the immovable cultural relics involved, the actual acquisition place and hiding place of the cultural relics involved, Transfer place, processing place, storage place, sales place, etc. Cultural relics crime cases in which multiple public security agencies have the power to file and investigate shall be filed and investigated by the public security agency in the place where the main crime was committed.
If one of the following circumstances occurs, the relevant public security organs may handle the cases together within the scope of their duties:
(1) One person commits several crimes;
(2) A common crime;
(3) A common crime. The suspect also committed other crimes;
(4) Three or more people work together at different times and commit crimes in cross gangs;
(5) There is a direct connection between the excavation, theft, reselling, cover-up, concealment, smuggling and other crimes committed by multiple criminal suspects. Correlation, or the formation of a multi-level criminal chain, and the case handling is conducive to ascertaining the facts of the case.
5. The application of the criminal policy of combining leniency with severity
(1) Focus on investment, exploration, illegal excavation, theft, reselling, collection of stolen goods, smuggling, etc. The cultural relics crime network launched a crackdown to dig deep into the financial backers, cut off the chain of cultural relics crimes, and target those who, although not specifically involved in the commission of relevant crimes, acted as a behind-the-scenes gathering, organization, command, planning, financing, and instigator in joint crimes. Those who play a major role can be identified as the principal offender in accordance with the law.
(2) Those who have been administratively punished or held criminally responsible for cultural relics violations, have repeatedly committed cultural relics violations, and state staff who have committed relevant criminal acts stipulated in these opinions may be severely punished as appropriate.
(3) Correctly use the systems of surrender, meritorious service, plea of guilty and acceptance of punishment, lenient and other systems, and give full play to the punitive and preventive functions of punishment. Those who actively return or assist in recovering cultural relics, assist in arresting suspects of major cultural relic crimes, and provide important clues that play a key role in detecting and identifying other major cultural relic crime cases will be treated leniently in accordance with the law.
(4) People's courts, people's procuratorates, and public security organs should strengthen communication and coordination with cultural relics administration and other departments, strengthen the connection between executions, and promptly transfer cases that do not constitute crimes in accordance with relevant regulations. Cultural relics that are prohibited from operation by the state and which are seized by the public security organs in accordance with the law and are not related to the case upon review shall be handed over to the cultural relics administration and other relevant departments for handling in accordance with the law. When investigating and handling cases, cultural relics administration and other departments discover cases suspected of constituting crimes and promptly transfer them to the public security organs in accordance with relevant regulations.
Supreme People's Court Supreme People's Procuratorate Ministry of Public Security
State Administration of Cultural Heritage
August 16, 2022
(Criminal Investigation Bureau of the Ministry of Public Security)
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