[Meng Lingfa] Inheritance of Intangible Cultural Heritage from the Perspective of "Animal Protection"-Legal Thinking from "Dog Meat","Monkey Show" and "Spot Green Skills"
Abstract: After the protection of intangible cultural heritage as a government act has entered the institutionalized level, laws and regulations have been formulated in the same line from the national to the local levels.
However, in the process of actual operation, there is a contradiction between the inheritance of intangible cultural heritage and animal protection.
Intangible cultural heritage incidents related to the "use of animals" that have occurred in recent years, such as "dog meat","monkey opera" and "green decoration skills", have not only been difficult to reach consensus in the debate of public opinion, but have also led to the inconsistency or even conflict between the "Intangible Cultural Heritage Law of the People's Republic of China" and the "Animal Law".
The absence of the "Intangible Cultural Heritage Law of the People's Republic of China" in relevant incidents further exposes the lack of execution of this institutionalized text that regulates the protection of intangible cultural heritage.
How to better provide systematic protection through laws and regulations for the sustainable development of intangible cultural heritage itself and the legitimate rights and interests of its inheritors or enjoyment? Today, four years after the implementation of the "Intangible Cultural Heritage Law of the People's Republic of China", if it is to be revised, should we fully refer to other relevant laws and regulations to lay a foundation for the harmonious unity of the law itself in a society governed by law?
Keywords: Intangible cultural heritage; animal protection; public opinion debate; laws and regulations
China's intangible cultural heritage (hereinafter referred to as "Intangible Cultural Heritage ") has been protected for more than ten years, and the" Intangible Cultural Heritage Law of the People's Republic of China "(hereinafter referred to as the" Intangible Cultural Heritage Law ") has been in effect for more than four years since its promulgation in 2011.
On the whole, the joint participation of the government, scholars and the public not only makes intangible cultural heritage more exciting, but also a strong support for enhancing comprehensive national strength.
However, today's achievements cannot conceal the problems that have arisen in the protection of intangible cultural heritage.
Some scholars pointed out that government-led protection of intangible cultural heritage "results in the infringement of the 'system' on the 'living world'as Habermas pointed out." One of the potential problems in the protection of "intangible cultural heritage" is "It implies a conflict of civilizations." This kind of continuity not only has the "dilemma of private rights, internationalization, and industrialization", but also is mixed with interest entanglements and power struggles between the government, scholars and the public.
Since joining the United Nations Convention for the Protection of Intangible Cultural Heritage in 2004, the rule of law for the protection of intangible cultural heritage in China has also been gradually improved.
The successive promulgation of the national "Intangible Cultural Heritage Law" and local "Intangible Cultural Heritage Regulations" has laid the institutional foundation for the protection of intangible cultural heritage in China.
However, these laws and regulations, which emphasize "administrative" rather than "civil", show the defect of "inaction" towards the inheritors of intangible cultural heritage when compared with other "national laws".
This article will take three intangible cultural heritage incidents related to animal protection (hereinafter referred to as "animal protection ") as examples to discuss the fact that the current" Intangible Cultural Heritage Law "lacks enforcement power in protecting and approving specific projects and their inheritors.
It is therefore believed that all laws and regulations, including the" Intangible Cultural Heritage Law ", are not independent national acts, but an institutional unity that is coordinated and continuously improved.
1."Dog meat","Monkey opera" and "Dressing skills": Three "intangible cultural heritage" incidents originating from animals
In China's intangible cultural heritage protection system, there are many projects closely related to animals and plants that have aroused serious concern among many people in contemporary society, such as traditional medicine, daily diet and certain traditional handicrafts.
The normal operation and inheritance of these intangible cultural heritage projects is indeed inseparable from the "contributions" of certain animals and plants.
However, with the modern spread and deepening of nature (environmental) protection awareness, the traditional production (life) model characterized by the use of animals and plants has gradually transformed under relevant laws and regulations and the intervention of some groups.
In recent years, there are no more intangible cultural heritage incidents related to animals that have occurred in the public eye than "dog meat","monkey show" and "green dot skills".
On September 7, 2011, the "Shocking Dog Meat Festival at the Head of Jinhua Lake in Zhejiang" published by the Greater Jinhua Forum not only rapidly fermented on major websites, but also attracted condemnation from dozens of public welfare organizations such as the Zhejiang Small Animal Protection Center, the Capital Animal Care Association, and the China Animal Protection Journalists Salon.
This forced the local government to urgently suspend the Jinhua "Hutou Dog Meat Festival" originally scheduled to be held on October 18, 2011 and the "Qianxi Township Material Exchange Conference" grafted on it at the end of September of that year.
Although the suspension of Jinhua's "Hutou Dog Meat Festival" also triggered local residents to defend their living customs, after weighing the social impact and the interests of local development, the original collective behavior of eating (killing) dogs along the street was hidden and replaced by the "Folk Culture and Art Festival" injects new vitality into the continuation of local traditions.
Different from the rapid resolution of Jinhua's "Hutou Dog Meat Festival", the Yulin "Litchi Dog Meat Festival", which has always been criticized, has struggled to move forward amid arguments, confrontations, and even bloody conflicts.
In June 2012,"animal protection" person Katayama Kong promoted Yulin dog meat across the country with the performance art of kneeling to the dog and apologizing, which triggered collective condemnation of the Dog Meat Festival by "animal protection" people from all over the country.
Every summer solstice, public welfare organizations or individuals flock to Yulin also commit bad behaviors of attacks, abuse and threats while boycotting the "Dog Meat Festival".
Faced with interference from outsiders, Yulin people seem to have a firmer attitude towards dog meat.
They protect their rights in anti-propaganda and anti-boycott.
In 2014, while the bloody conflict at the "Litchi and Dog Meat Festival" forced the local government to abandon its relationship with it and ordered stores to cover up the word "dog", a support advertisement from Pei County, Jiangsu Province made the "dog meat controversy" again.
Although Yulin's "Litchi and Dog Meat Festival" was only included in the "Compilation of Yulin Intangible Cultural Heritage Survey Data·Yuzhou District Volume" compiled in 2008, this already shows its "intangible cultural heritage" nature.
As the only "dog meat intangible cultural heritage" in the country-Pei County's turtle juice dog meat cooking skills-has continued in a relatively low-key manner since it was included in the second batch of provincial intangible cultural heritage list in Jiangsu Province in June 2009.
More than two thousand years of production methods and eating customs, even the "Pei County Dog Meat Festival" that started in 2007, was rarely attracted by people due to its private and small scale.
However, the protests and criticisms triggered by this support still make it at the forefront of public opinion.
The close relationship between humans and animals comes from the rules of the "food chain" that existed in ancient times.
However, the labor surplus in the development of agriculture and animal husbandry has prompted people to expand their pursuit of entertainment, and the domestication of captured or bred animals has gradually been applied to human beings.
In self-entertainment, Wei Minghua described this in more detail in "The History of Animal Performance".
To this day, equestrian, bullfighting, fish farming, falconry, etc.
are still active in our real life.
However, in contemporary society where animal protection is becoming increasingly strong, entertainment methods represented by Spanish bullfighting have accepted a "ban" amid fierce protests from "animal protection" activists.
Although radical "anti-animal entertainment" behavior in the West has not yet appeared in China, the "legal" conflict between cultural inheritance and animal protection has gradually emerged.
On July 9, 2014, when four monkey opera artists from Xinye, Henan Province-Bao Fengshan, Bao Qingshan, Su Guoyin and Tian Jun 'an were performing monkey operas on the streets of Mudanjiang, Heilongjiang Province, they were taken away by the police of the city's Forest Public Security Bureau for not having a wildlife transportation certificate.
On September 23, they were convicted by the Mudanjiang Tokyo City Forest District Grassroots Court of "illegally transporting precious wild animals." In order to restore the reputation of the monkey charmers and allow the art of monkey charmers to continue to spread, the four convicted Xinye monkey entertainers appealed to the Heilongjiang Forest Intermediate People's Court on October 8, 2014.
After trial, the case was heard on January 20, 2015.
The Xinye People's Court in Henan Province publicly pronounced the verdict in a different place: the verdict of the Mudanjiang Tokyo City Forest Grassroots Court was revoked and the appellant was acquitted.
According to Dr.
Yang Xudong's article "Xinye Monkey Opera: From Upper Class Entertainment to Lower Class Making a Life-Taking Baowan Village in Southwest Henan as a Case", we can see that the history of Xinye Monkey Opera can be traced back to the Eastern Han Dynasty and reached its climax in the Ming and Qing Dynasties.
However, under the influence of the new era, new economy, and new entertainment, more and more monkey opera artists began to find alternative ways to make a living.
In order to continue this local folk culture, Henan Xinye monkey opera was included in the second batch of provincial intangible cultural heritage list of Henan Province in June 2009.
Although the above-mentioned monkey opera artists have not yet been included in the list of intangible cultural heritage inheritors, they are also the main force for the inheritance of monkey opera and should be protected by the Intangible Cultural Heritage Law.
However, the laws and regulations on which this case is based do not include it.
When dog meat and monkey operas had not stopped the uproar of public opinion, the Weibo posted by Peking Opera actor Liu Guijuan triggered another debate about opera costumes (Diancuanou) and animal protection.
In the eyes of many people, especially "animal protection" people, this Weibo is not only a contempt for life, but also a display of wealth.
However, it is precisely because of this Weibo controversy that the world has a deeper understanding of Diancui skills.
Tang Li Qiao wrote in "Imitation of the Ancient Times Flying to the East, the Shrike and the Swallow in the West":"Who lives in a garden building? Five horses and thousands of gold shine on a stranger.
The jade pendant in a royal skirt will appear in the pavilion, and the emerald shines on the red to compete in the spring." Song Dynasty's "Taiping Huanyu Ji", volume 166,"Lingnan Road Ten" records,"Wuhuyi.
The foreign body said: 'Wuhu is another nickname for the Southern Barbarians.
It lives in the nest and drinks, shoots green flowers to get hair, and cuts mussels to seek pearls for a career.'" Cao Xun of the Southern Song Dynasty wrote in "The Song of the Flood":"Painting boats are painted with green strategies, and smoothing waves are painted with plain smoke.
The warm sun smokes the flowers, and the new grass shines with the green mother." It can be seen that "Diancui" became very popular during the Tang and Song Dynasties and became one of the economic sources of the barbarian lands.
Almost all the women in "The Painting of Twelve Beauties in Yongzheng of the Qing Dynasty" wear some green ornaments.
Under the influence of the decorative green craftsmanship of Peking Opera, which emerged in the middle and late Qing Dynasty, the costumes also appeared with decorative green ornaments.
Simply put,"Diancui craftsmanship is a traditional gold and silver jewelry making process in China.
It is a perfect combination of traditional metal craftsmanship and feather craftsmanship.
First, gold or gold-plated metal is used to make bases with different patterns, and then the bright Turkish blue feathers on the back of the kingfisher are carefully inlaid on the seat to make various jewelry utensils." As one of the first batch of national intangible cultural heritage representative projects in China (2006), Peking Opera was selected into the list of representative works of human intangible cultural heritage in 2010, thus becoming an important symbol of China's international image.
However, although "Diancui", which exists as a supporting craft for Peking Opera, has not been included in the Intangible Cultural Heritage List, from the perspective of the overall protection of intangible cultural heritage, Diancui craftsmanship should also be in the same tone, posture, stage, props, etc.
In the same position.
However, this craft has long been unique since the 1930s, and the "bloody" source of its materials, its impact on the ecological environment and its high cost are destined to be difficult for this craft to be universally recognized by contemporary people, and can only become a museum.
furnishings.
The above has already let us see that whether "dog meat","monkey opera" or "green decoration skills", they are all ordinary life or performing arts aids for specific groups of people, and have gradually become regional cultural representatives and symbols of national culture over the accumulation of history.
However, at a time when the living standards of the whole people are generally improving, more and more "animal protection" organizations or individuals have begun to shift their attention from the protection of wild animals to the protection of people's daily meat products, thus "Do not do to others what you don't want you to do to yourself" The controversy, boycott and conflict have triggered people's reflection on the contemporary adaptability of "cultural heritage" and the contradiction between "cultural law" and "animal law".
2.
Life, culture and the rule of law: the debate on "intangible cultural heritage" incidents and their impact
Life is a very complex social phenomenon.
Its main body-people-must not only strive hard to build a harmonious relationship between people, but also be more cautious to maintain the unity of man and nature.
In the eyes of ordinary people, life is not as awkward as scholars have studied and expressed, but just adding some spiritual entertainment to relatively simple physiological needs.
However, this so-called simplicity is full of very complicated family, clan, village and even social conflicts.
However, we have to admit that all "culture" in the modern academic system is a collective achievement created by people in daily life, and its continuation reflects the essence that life lies in "convention".
Although different scholars 'understanding of culture may vary, its core cannot be separated from the foundation of life creation.
As British anthropologist Edward Taylor said: "Culture, or civilization, in its broad ethnographic sense, is a complex that includes all knowledge, beliefs, art, morality, laws, customs, and any other talents and habits mastered and accepted by people as members of society." This concept has not only influenced this day from a diachronic perspective, but also provides guidance for related disciplines or emerging concepts from a synchronic level.
The same is true for the current "intangible cultural heritage" movement.
Compared with the complex definition of "intangible cultural heritage" in the UNESCO Convention for the Protection of Intangible Cultural Heritage, China's Intangible Cultural Heritage Law stipulates that intangible cultural heritage "refers to the various traditional cultural expressions passed down from generation to generation by people of all ethnic groups and regarded as part of their cultural heritage, as well as objects and places related to traditional cultural expressions." The above-mentioned "dog meat","monkey drama" and the "green dot skills" contained in the drama just reflect this cultural definition.
However, the "culture" that has entered the track of the legal system has not been more comprehensive affirmed because of the minimum guarantees, and has even affected the coordination of "law" and "reason","law" and "law".
During the dog meat festival debate in Yulin, local people and "animal protection" activists used their own forms to defend the traditions and civilizations they agreed with through propaganda and counter-propaganda, boycott and anti-boycott, ridicule and anti-ridicule.
Make self-defense actions.
Some media pointed out: "Loving dogs and eating dogs is a cultural dispute and has nothing to do with morality.
Whether they are dog lovers or dog eaters, they all promise to abide by an agreement: the eater should not be tortured and killed, and the breeder should not be abandoned."Both sides think that the truth is in hand and use their own values to label each other immoral.
label.
But when people are blushing and scolding each other, they can't convince each other and bystanders, so naturally there is no way to reach a social consensus." Similarly, Zhou Xiaozheng believes: "The debate over whether to eat dog meat is actually a contradiction between folk customs and animal protection.
Protecting animals should be the responsibility of every citizen, but at the same time, everyone's legitimate dietary needs must be respected." Zhang Yiwu said: "I understand the anxiety of animal conservationists.
This anxiety is an anxiety that a communicator of civilization must endure.
Looking at it from another perspective, the anxiety of animal activists reflects the health state of diverse values in today's era."However," there are no legal regulations or ethical consensus on eating dog meat.
The taboos on animals in different cultures are complex, and we cannot force others across the board.
Accept your own values." Although such comments have not alleviated the dog meat controversy, they have given people more guidance for rational thinking.
The Yulin "Dog Meat Festival", which is the target, is not an official festival recognized by the government.
At least the government claims that it has never been held and there is naturally no way to ban it.
However, the moral banner raised by "animal protection" people makes Yulin people feel that they have no dignity.
When "animal protection" people use laws and regulations such as the Food Safety Law, the Animal Epidemic Prevention Law, the Animal Quarantine Management Measures, and the Quarantine Regulations for Dog Origin Areas as weapons to argue that dog meat has potential hazards such as unclear origin, illegal transportation, and health hazards, more facts point to the status quo of "it can be done without prohibition by law."
The "dog meat" controversy, which exists as a regional dietary custom, is still struggling in the midst of repeated debates.
Unlike this local "intangible cultural heritage" that has not yet been "reconciled", the representative project of "intangible cultural heritage" in Henan Province-Xinye Monkey Opera-has temporarily come to an end within the legal framework.
From the perspective of the court of second instance,"the first-instance judgment found the facts clear, the evidence was indeed sufficient, and the trial procedure was legal.The four people did not apply for a wild animal transportation certificate, which did violate relevant national regulations.
However, the four people used the off-season time to perform monkey art performances in other places to make a living.
Objectively, they needed to transport macaques for a long distance.
During the transportation and performance, they did not cause harm to the macaques they carried., and the behavior is obviously minor and does not harm much, so it is not considered a crime.
Therefore, the first-instance conviction and exemption sentence were revoked, and the four people were acquitted in accordance with the law." It can be seen that although the four monkey opera artists were found not guilty, the verdict's affirmation of the "first instance" and the emphasis on the legal provisions of "transporting and carrying key national protected wild animals out of the county" already showed that the "charge" was established.
Therefore, the battle for monkey drama still exists.
Some people pointed out that "as early as 2001, the State Forestry Administration and the Ministry of Housing and Urban-Rural Development had issued a document requiring the ban on animal performances and zero-distance contact activities between wild animals and audiences," and "monkey shows, tooth carvings, falconry and other animal performances have been included in 'Folk art', but today this is contrary to the spirit of protecting wild animals in the Wildlife Protection Law of the People's Republic of China promulgated and implemented in 1989." There are also many psychological tendencies like writer Zhou Daxin who "hopes that folk culture can be passed down well on on the one hand, but on the other hand, he does not want people to make a living by playing monkeys." Although the Xinye monkey show has gone from a climax to a trough in the process of occurrence and development, even though this means of making a living has become a local symbol of the "intangible cultural heritage" era, the artists who make a living from it are still constantly changing careers, causing the monkey show to gradually become endangered.
The amplification of rumors of "monkey abuse" by "animal protection" and some media has added weight to the "end" of the monkey show.
When the "Dog Meat Festival" and "Monkey Show" were still caught between public opinion and law, the dispute from "Diancui Skills" once again pointed the main body of the contradiction to animal protection and cultural inheritance.
Although a helm-headed master said,"In the past, we really needed to use the hair of live birds to make some green flowers.
Nowadays, many people can't understand that they pluck the hair of small animals just for the glory and beauty of the stage.
It's different now.
There are not many masters in the country who can make delicacy, and if you want to catch birds, someone will arrest you."When the peerless delicacy skills enter people's lives through the Internet," animal protection "Awareness has once again become a force at the forefront.
Some scholars have questioned: So what if the art of delicacy is a treasure of traditional art? This is just an aesthetic preference a hundred years ago.
In a modern society where the awareness of animal protection is constantly strengthened, how can we convey the concept of "artistic responsibility" to harm the life of kingfishers with the value orientation of a century ago? The significance of art's existence is to bring a beautiful aesthetic experience.
Can art at the expense of depriving animal lives be called art? Does the inheritance of traditional art necessarily mean the inheritance of killing? Can't modern technology replace the kingfisher to complete a first appearance? Faced with this series of questions, I believe that most people will fall into deep thought and cannot respond decisively.
Famous host Zhao Zhongxiang reminded: "Do small things good, don't do small things evil." In this regard, Yin Jianguang commented that Zhao Zhongxiang's criticism of "Diancui""is to enlighten traditional pedantic, sublimate traditional art, and make China's traditional culture more civilized and exciting." However, some people also said: "As a kind of cultural inheritance, Diancuitou noodles and their craftsmanship have obviously exceeded the meaning of simple costumes in terms of actors and Peking Opera art, and to a certain extent have a certain cultural content and 'intangible cultural heritage' elements.
In view of this, even from the perspective of humanistic concepts such as animal protection and environmental protection, it is not appropriate to simply ban such crafts or arts with obvious cultural and artistic heritage.
After all, production and display for cultural inheritance purposes are different from general commercial use."
Through the above, we have made it clear that "dog meat" needed for regional life,"monkey opera" for seeking economic sources, and "Diancui", an important aid to opera art, have gradually become "controversial" in the contemporary "civilization" discourse system.
When moral condemnation is difficult to achieve the intended purpose, turning to laws and regulations has become a new strategy for more controversial initiators.
However, the contradiction between animal protection and cultural inheritance is due to the imperfection of written laws.
We have to return to mutual accusations in the field of morality.
Even if some scholars or netizens can view such incidents in a more neutral manner, they cannot change this social situation that lacks legal enforcement.
More importantly, in the debate between animal protection and cultural inheritance, although some comments also mentioned the "intangible cultural heritage" nature of the disputed object, they did not mention the institutional text of "intangible cultural heritage" protection while sighing.
-the "Intangible Cultural Heritage Law", and the verdict results of relevant cases also seem to prove the fact that representative projects of China's intangible cultural heritage are not effectively protected by the "Intangible Cultural Heritage Law", which inevitably makes the author question the effectiveness of the "Intangible Cultural Heritage Law".
3.
Humans and animals,"animal protection" and "cultural protection": Will the Intangible Cultural Heritage Law in comparison be weak?
The author once quoted British anthropologist Edward Taylor's definition of "culture", and this understanding allows us to see that people are the main body of creating culture and the core of culture.
In other words, culture cannot be separated from people, and culture without people does not exist.
As an important component of the entire culture, how can "intangible cultural heritage" not participate? In the Convention for the Protection of Intangible Cultural Heritage,"intangible cultural heritage" refers to "various practices, performances, forms of expression, knowledge and skills and related tools that are regarded by groups, groups, and sometimes individuals as their cultural heritage., objects, crafts and cultural venues." When "intangible cultural heritage" entered China, its concept was also localized while continuing the subject consciousness of the Convention.
In the "Interim Measures for the Application and Evaluation of Representative Works of National Intangible Cultural Heritage","intangible cultural heritage" refers to "various traditional manifestations that have been inherited from generation to generation by people of all ethnic groups and are closely related to people's lives.(such as folk activities, performing arts, traditional knowledge and skills, as well as related artifacts, objects, handicrafts, etc.) and cultural space, while the "Notice on Strengthening the Protection of Cultural Heritage" regards "intangible cultural heritage" as "Various forms of traditional cultural expressions that exist in intangible forms that are closely related to people's lives and passed down from generation to generation, including oral traditions, traditional performance rituals, folk activities and rituals and festivals, Folk traditional knowledge and practices about nature and the universe, traditional handicraft skills, etc., and cultural spaces related to the above-mentioned traditional cultural expressions." The "Intangible Cultural Heritage Law" stipulates that "intangible cultural heritage" refers to "various traditional cultural expressions passed down from generation to generation by people of all ethnic groups and regarded as part of their cultural heritage, as well as objects and places related to traditional cultural expressions." It can be seen that although the concept of "intangible cultural heritage" has slight differences in details in China laws and regulations and government official documents, no matter which interpretation cannot depart from the affirmation of the cultural carrier-people.
Mr.
Wang Wenzan once said: Intangible cultural heritage "cannot be forcibly solidified and protected.
Its survival and development will always be in the process of 'living' inheritance and 'living' protection.
In this sense, the subject of inheritance and protection are the core factors in the protection of intangible cultural heritage,"and" to make the inheritance of intangible cultural heritage form a never-ending and surging river,'people' are the decisive factor." Therefore, since the introduction of "intangible cultural heritage" in China, the hierarchical construction of the national protection system has not only highlighted the importance of "people" in the concept of "intangible cultural heritage", but also focused on the requirements for the sustainable development of "intangible cultural heritage".
The core position of "inheritors" has been highlighted, and the "Interim Measures for the Identification and Management of Representative Inheritors of National Intangible Cultural Heritage Projects" has been formulated.
The "Intangible Cultural Heritage Law" stipulates in legal form the social responsibilities and obligations of representative inheritors of representative intangible cultural heritage projects.
Although the judicial system stipulates the social attributes of the inheritors with the prefix "representative", this does not deny the participation of the whole people in the living inheritance and protection of "intangible cultural heritage".
That is to say, as the "intangible cultural heritage" needed for life, its representative inheritors are only the backbone of the effective continuation of specific "intangible cultural heritage" projects, and more folk "artists" who have not been selected but have "intangible cultural heritage" inheritance, or even the general public who are just enjoyment, It is the decisive factor in maintaining youth forever in this kind of cultural creation.
However, although our existing laws and regulations clearly stipulate the support methods and corresponding responsibilities of government departments for "intangible cultural heritage" inheritors to carry out teaching activities, their execution power does not seem to be so ideal in actual operation.
Through the above, we have already seen that while "animal protection" people hold high the banner of public opinion, even if the application of relevant "Animal Law" and "Food Hygiene Law" has not completely changed this contradictory situation, it can also be seen that the enforcement of these laws and regulations far exceeds the "Intangible Cultural Heritage Law".
Especially in the trial of the "Monkey Show" case, although the final verdict of the judicial department was not guilty, its affirmation of the first instance and the expression of relevant sentencing standards such as the Criminal Law have demonstrated their strong execution power.
Is the absence of the "Intangible Cultural Heritage Law" in the entire judgment just because four "Monkey Show" artists were not recognized as representative inheritors?
Although the author has not found reports that representative inheritors have been caught in disputes over "animal" intangible cultural heritage, there is still doubt whether the "Intangible Cultural Heritage Law" can effectively protect it.
In addition, when the above-mentioned cases show the contradictory "animal use" intangible cultural heritage, they also expose from another level the "Intangible Cultural Heritage Law" protects the "property rights" of inheritors or enjoyment of "intangible cultural heritage".
The lack of protection.
The author said above that starting from the overall protection of "intangible cultural heritage", all objects or non-objects related to "intangible cultural heritage" should be protected, while the "Intangible Cultural Heritage Law" clearly states that "For objects and places that are part of intangible cultural heritage, the relevant provisions of the" Cultural Relics Protection Law of the People's Republic of China "shall apply to all objects and places that are" intangible cultural heritage "but are not cultural relics.
Which laws and regulations should apply to objects or places? In my opinion, the Property Law can protect the corresponding rights of inheritors or enjoyment of "intangible cultural heritage".
The Property Law stipulates: "Property right refers to the right that the legal obligee enjoys direct control and exclusive rights over specific things in accordance with the law, including ownership, usufruct and security rights", while the "thing" refers to real estate and movable property.
According to relevant media reports, in recent years, in order to block the supply source of dog meat trade,"animal protection" personnel have repeatedly intercepted foreign trucks transporting dogs on highways.
Various documents issued by relevant cargo owners and owners have shown that although the "one dog, one certificate" rule was violated during animal inspection and quarantine, the ownership of the property rights is obvious.
Judging from the provisions of the Property Law, these dogs are "movable assets" that ensure the continuation of dog meat cooking skills.
Similarly, one of the macaques that was performed as a Xinye monkey show died while being detained by the Mudanjiang Forest Public Security Bureau.
Although the macaques belong to second-class protected wild animals in China, they are no longer "wild" when domesticated and bred.
The "Intangible Cultural Heritage Law" clearly stipulates: "Anyone who violates the provisions of this Law and destroys objects and places that are part of intangible cultural heritage shall bear civil liability in accordance with the law; if it constitutes a violation of public security management, public security management penalties shall be imposed in accordance with the law." This may be one of the important reasons why the four monkey opera artists discussed whether to apply for state compensation.
Zhang Junran, president of the Xinye County Macaque Association, once said: "The judgment of the second instance is crucial for Xinye monkey opera artists.
Monkey opera artists need to know whether it is a crime to bring monkeys out to perform without a transportation permit." Although the victory of the appeal has on the surface brought this matter to an end, their most troublesome problem has not yet been resolved, that is,"I hope that relevant departments can simplify the certification procedures based on the particularity of monkey opera as intangible cultural heritage." Faced with the difficulty of applying for certificates, lawyer Liu Changsong said: "What I look forward to is that those monkey artists can easily apply for wildlife transportation certificates." In the existing "intangible cultural heritage" system, there are not a few people that express themselves in animals, and "intangible cultural heritage" projects such as "dog meat","monkey show" and "Diancui skills" require cross-border transportation to supplement.
However, the "Intangible Cultural Heritage Law" does not make corresponding provisions on the above-mentioned qualification review, which will inevitably lead to misjudgment of the "legal" connection, resulting in unnecessary public opinion debates and even legal disputes.
According to media reports, in October 2014, Guangdong police intercepted about 60,000 dead birds weighing 1 ton, most of which were kingfishers and plums.
However, these birds used for food were not national rare birds, and relevant personnel were also Only subject to administrative penalties.
However, the "List of Terrestrial Wildlife Protected by the State that is Beneficial or of Important Economic and Scientific Research Value" promulgated and implemented on August 1, 2000 has already listed "ordinary kingfishers, spotted kingfishers, blue jade", etc., which belongs to the category of wild animals, and it can be seen whether the declining art of dot green can still be revived.
Mei Lanfang, Zeng and Sun Meiwei, also said: "Although the traditional green is beautiful, it has now been replaced by modern technology because it has serious ecological damage and no longer takes hair from kingfishers." Reporter Zhao Zhenjiang believes: "Diancui is a tradition in China.
We are now using other methods to achieve the effect that can only be achieved by using kingfisher feathers, but we cannot abandon Diancui just because we have new technology.
At the very least, we must know that there is a kind of clothing in history that is made in the way of Diancui.
This is part of our history." Even so, the author still has to ask whether the Diancui accompanying opera meets the requirements for the overall protection of "intangible cultural heritage"?
At the beginning of 2010, the "Anti-Animal Cruelty Law (Expert Suggestion Draft)" drafted by many legal experts was made public to the world.
However, a protracted debate has prevented this law from being included in the legislative track.
The focus of the controversy is on the "fasting of cats and dogs" and the almost harsh and not "people-oriented" punishment provisions in the application of religious animals.
In this regard, Dr.
Sun Quanhui of the World Animal Protection Association believes that "treating animals well is the general trend of international legislation", but "the formulation and implementation of laws must be based on public opinion." In response to the criticism of "fasting cats and dog meat", jurist Chang Jiwen said: "Eating cats and dog meat involves the traditions and customs of some ethnic and local regions.
The expert draft proposal adopts a flexible approach and believes that the understanding of completely prohibiting citizens from eating cats and dog meat is wrong," and its Animal Protection Law and Anti-Cruelty Law: While sorting out the causes of the legislative debate, Experts Suggest Fighting with All Sectors also put forward amendments to some articles, such as changing the "illegal consumption of dogs and cats or selling dog and cat meat" to "slaughtering dogs and cats or transporting and selling dogs and cats and cats and cat products in areas where slaughtering and sales are prohibited, etc., but this still has not been widely recognized, and those public figures who have long insisted on promoting the law have gradually withdrawn amid condemnation.
In Zheng Jiaming's view: "Animal performances and animal abuse cannot be equated, a boundary can be drawn.
Domestication that follows the growth laws of animals and establishes an intimate relationship with them is not abuse." It can be seen from the judgment of the second trial of Xinye Monkey Opera and related reports that a close and interdependent relationship has been established between the monkey opera entertainers and the second-class protected animal macaques.
As photographer Ma Hongjie said: "The monkey person's feelings for the monkey are real." At present, although the Anti-Cruelty to Animals Law is in the infancy and has been suspended due to debate, the animal protection concept of respecting life has long been rooted in the hearts of the people.
Therefore, China will inevitably formulate or amend relevant provisions in the process of integrating with the international community.
However, once this "Law" is promulgated, it will definitely affect the living customs of some ethnic groups and further bring about the inheritance of relevant "intangible cultural heritage".
In short, in the process of dealing with "dog meat","monkey show" and "dot green skills", the judicial department and the general public have long surpassed the "Intangible Cultural Heritage Law" used to protect "intangible cultural heritage" and their inheritors.
Law.In my opinion, all culture is the creation of human beings, and when the "people-oriented" political expression answers what is most important, fundamental, and worthy of our attention in life.
It focuses on clarifying that the fundamental driving force of "development" is that "people" and the fundamental purpose of "development" is also "people", but this does not mean that the right to life of other human-related species can be ignored for the sake of development.
However, after the promulgation of the "Intangible Cultural Heritage Law""in order to inherit and carry forward the excellent traditional culture of the Chinese nation, promote the construction of socialist spiritual civilization, and strengthen the protection and preservation of intangible cultural heritage," successive "animal use" intangible cultural heritage incidents have drawn a seemingly insurmountable gap between justice, morality and cultural inheritance.
In fact, both the "Animal Law" and the "Intangible Cultural Heritage Law" are protection systems formulated for the development of people.
However, due to the different focus of the "Law" and the operability of its provisions, it is inevitable for people to look at the same case when looking at the same case.
There are often phenomena where one thing is ignored, or even the other is ignored.
What is described in this article just highlights the problem that people attach too much importance to animal protection and despise cultural inheritance.
People's emphasis on the "Animal Law" and indifference to the "Intangible Cultural Heritage Law" also exposes the enforceability of the "Intangible Cultural Heritage Law".
Weak.
4.
Revision and improvement: Coordination and unification of "laws" in the protection of "intangible cultural heritage"
Since the 15th National Congress of the Communist Party of China established "governing the country according to law" as the basic strategy of governing the country, determined "building a socialist country ruled by law" as an important goal of socialist modernization, and proposed the major task of building a socialist legal system with Chinese characteristics.
By 1999,"The People's Republic of China implements the rule of law and builds a socialist country ruled by law" was included in the Constitution, China's rule of law construction has also entered the "legal" system.
The Fourth Plenary Session of the 18th CPC Central Committee once again strongly affirmed the importance of governing the country according to law and comprehensively promoting the construction of the rule of law in the "Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning Comprehensively Promoting the Rule of Law"(hereinafter referred to as the "Decision").
In a broad sense,"rule of law", as a strategy for governing the country and a method of social control, must be an integral and important part of culture as a whole.
The healthy development of culture is not only conducive to the operation of China's market economy, but also conducive to the creation of China's political democracy.
Therefore, in China's legal system, the institutionalized management of culture is valued at all levels of the party and the country.
In the "Decision", the "Cultural Law" was included in the key areas of construction, and clearly pointed out that "establish and improve the cultural legal system that adheres to the direction of advanced socialist culture, follows the laws of cultural development, is conducive to stimulating the vitality of cultural creativity, and protects the people's basic cultural rights and interests.
Formulate a Public Cultural Service Guarantee Law to promote the standardization and equalization of basic public cultural services.
Formulate the Cultural Industry Promotion Law, legalize effective cultural and economic policies, improve institutional norms that promote the organic unity of social and economic benefits,"and" adhere to the people's justice for the people, rely on the people to promote fair justice, and safeguard people's rights and interests through fair justice.
Ensuring people's participation in judicial activities such as judicial mediation, judicial hearings, and complaints related to litigation shows that the construction of a law-based society requires the active participation of all citizens, and this is also an important manifestation of the current pre-disclosure of various laws and regulations pending improvement.
According to Luo Shugang, Minister of Culture: At present, my country has initially established a legal and regulatory system covering cultural heritage protection, public cultural services, cultural market management, intellectual property protection and other fields at the national level.
Among them, cultural laws closely related to cultural work include the Cultural Relics Protection Law, the Intangible Cultural Heritage Law and the Copyright Law; Administrative regulations include the Regulations on the Protection of Traditional Arts and Crafts, the Regulations on the Management of Entertainment Places, the Regulations on the Management of Internet Internet Service Business Places, the Regulations on the Implementation of the Cultural Relics Protection Law, the Regulations on Public Cultural and Sports Facilities, the Regulations on the Management of Commercial Performances, and the Regulations on the Protection of the Great Wall.
There are more than 10 regulations on the Protection of Historical and Cultural Cities, Towns and Villages, and the Museum Regulations.
The Ministry of Culture currently has 32 effective departmental regulations.
At the same time, local cultural administrative departments have promoted the promulgation of a series of local regulations and regulations in accordance with the country's superior laws and combined with local realities, covering public cultural services, traditional cultural protection, cultural industries and other fields.
According to statistics, there are 154 local regulations closely related to cultural work, 138 local government regulations, and more than 13000 local normative documents.
It can be seen that China's "cultural legislation" has begun to be systematic, but there is "only one law" in national legislation related to the "intangible cultural heritage" mentioned in this article (Law of the People's Republic of China on Intangible Cultural Heritage), a regulation (Regulations on the Protection of Traditional Arts and Crafts), one opinion ("Opinions of the General Office of the State Council on Strengthening the Protection of Intangible Cultural Heritage in my Country"), Two Measures ("Interim Measures for the Identification and Management of Representative Inheritors of National Intangible Cultural Heritage Projects" and "Interim Measures for the Protection and Management of National Intangible Cultural Heritage")"In addition, the party and government of all provinces (cities, autonomous regions) and cities and counties have formulated or revised corresponding subordinate laws accordingly.
However, the fact that there is no corresponding supporting measures is inconsistent with the current status of protection of intangible cultural heritage in my country and the urgency currently facing my country." More importantly, The above-mentioned "animal use" intangible cultural heritage incidents caused by the conflict of "laws" just reflect the "inconsistency" or even "conflict" among the superior law, subordinate law and equivalent law in "cultural legislation".
These incidents provide a practical basis for us to improve the system of "laws" and coordinate the relationship between "laws".
The national-level "Animal Laws (Regulations)" that are directly or indirectly related to the "Animal Use" intangible cultural heritage in this article mainly include the Criminal Procedure Law, the Wildlife Protection Law, the Animal Epidemic Prevention Law, the Import and Export Animal and Plant Quarantine Law, the Food Safety Law, the Animal Quarantine Management Measures, the Dog Origin Quarantine Regulations, and the Anti-Cruelty to Animals Law, which has not yet been promulgated.
Judging from the concept of legal hierarchy, most of these laws and regulations belong to equivalent laws, and only a few are subordinate laws.
According to the "Legislation Law","legal hierarchy refers to the system that determines the level of effectiveness and application order among different types of normative legal documents within a unified legal system." It reveals that "the vertical status of legal norms in the entire legal system is the fundamental basis for establishing a hierarchical system of legal effectiveness." Therefore, legal effectiveness determines the formulation principles and hierarchical relationship of superior law, inferior law and parity law.
In other words, in China's legal system, The superior law is higher than the inferior law, and the equivalent law has the same effect within their respective jurisdictions.
It can be seen that if the "Intangible Cultural Heritage Law" is placed in the system of "Animal Law", its legal effect should be in the same position as the above laws and higher than other regulations.
However, the above-mentioned cases show us that the "Intangible Cultural Heritage Law" not only fails to demonstrate its original legal effect, but is also submerged in the debate between the parties in the development of the incident.
Even if some scholars point out the importance of "intangible cultural heritage", they have not incorporated the "Intangible Cultural Heritage Law" into their own discourse system.
The "Legislation Law" points out that "the legal terms used for legal norms of the same level (or quasi-same level) are 'inconsistent', and the legal norms of different levels are 'conflict'." The Xinye Monkey Show, which has been included in the category of "traditional sports, entertainment and competition", Pei County's turtle juice and dog meat cooking skills of "traditional handicrafts" and "Diancui", which is an important auxiliary to Peking Opera in the "traditional drama" category, did violate some provisions of the relevant "Animal Law" when using relevant animals.
However, the "Intangible Cultural Heritage Law" defines the "Intangible Cultural Heritage" itself and the responsibilities and obligations of its inheritors.
It fails to form an effective protection system.
In other words, Inheritors of intangible cultural heritage should not be unreasonably "censured" by other equivalent laws or even subordinate laws when fulfilling the responsibilities and obligations entrusted by the "Intangible Cultural Heritage Law", but they should not act arbitrarily and indiscriminately.
In short, as a kind of human creation, intangible cultural heritage is not only the essence of human culture, but also an important part of human life.
It not only involves the inheritance of technology, but also cannot be separated from material support.
As Wan Jianzhong said: "Investigate and study intangible cultural heritage cannot ignore the 'material' form therein.
The concrete and intuitive 'material' form is of great significance to the understanding of intangible cultural heritage.
At the same time, it is also an indispensable factor in promoting the spread of intangible culture and making it a heritage." Although "the promulgation of the" Intangible Cultural Heritage Law "marks that my country's intangible cultural heritage protection has entered a new era of legal protection" and "for the first time established the legal status of intangible cultural heritage in the country's social life and promoted the protection of" intangible cultural heritage ".
To the legal level, it reflects the cultural consciousness of the party and the government to 'inherit and promote the excellent traditional culture of the Chinese nation." However, due to the extensive coverage of "intangible cultural heritage", Even a single "intangible cultural heritage" project will inevitably have a symbiotic relationship with other elements of life.
The law is originally the minimum institutional system to ensure the harmonious coexistence of people, people and nature, and people and society.
It is also an important component of human life that is difficult to separate.
After the protection of "intangible cultural heritage" as a government act enters the legal level, how can it exist independently of the life, social and natural nature of "intangible cultural heritage"? Because of this, it is not surprising that "inconsistencies" or "conflicts" between laws have occurred one after another in "animal-use" intangible cultural heritage.
Although the superior law, inferior law and parity law in a society ruled by law are modified in the Legislation Law, their applicability is limited to special economic zones and ethnic autonomous areas authorized by the highest authority of the state.
Therefore, the legal choice in the above cases is not within the allowed scope of the "modification rules".
Whether the current legal norms for "intangible cultural heritage" protection are weakening of power, and whether its further revision should fully refer to other relevant laws and regulations.
It is an indispensable part of further improving the protection of intangible cultural heritage, inheriting national civilization, and establishing a harmonious society.
(This article was published in "National Art", No.
1, 2016.
The annotations are omitted.
See the original issue for details)