The "Antiques Bureau Central Bureau" under the eyes of the law

The cinema hit movie "Antiques Bureau Central Bureau". People's Vision/Courtesy photo

Reporter | Li Zhuoqian

Responsible editor| Li Xu

The text is 2734 words in total, and it is expected to take 8 minutes to read▼

Recently, the movie "Antiques Bureau Central Bureau" has been screened in major theaters. Adapted from Ma Boyong's novel of the same name, the film tells the story of the owner of an antique shop in Beijing Liulichang who makes a wish and encounters various strange tricks and tricks in the antique jianghu in the process of cracking the conspiracy. After the release of the film, it triggered the audience's curiosity and heated discussion about the "antique" jianghu. Can antiques be traded? How is the law regulated? What kind of legal liability is required for selling fake antiques? What issues do I need to be aware of in the antiques trade? In response to these problems, the reporter interviewed Ji Yang, associate professor of the Law School of Southeast University.

Reporter: How to define "antique"? What are the characteristics of the antiques trade?

Jiyang: "(True) antiques" is the "folk collection of cultural relics (movable cultural relics)" in the Cultural Relics Protection Law, and the main sources include "works of art", "arts and crafts", "documents", "manuscripts" of various eras in history that are legal and allowed to be traded, as well as other "physical objects" with historical monumental significance and cultural representative significance.

Antiques trading is different from ordinary commodity trading, because the value of antiques is not an objective exchange value but a subjective value given by buyers and sellers based on their respective experiences, appreciation, collection interest, cultural relics feelings and other individual elements, even if the cultural relics identification experts often have diametrically opposed opinions on the same antiques; moreover, based on the scarcity and economic value of real antiques, the antique market has been flooded with massive imitations and fakes since ancient times, and the probability of buying fake antiques is extremely high, and the conventional risk borne by buyers is large.

Antiques trading has its own industry characteristics, and the seller's obligation to guarantee the "genuine" antiques sold is completely different from that of ordinary commodity sellers, which has also been recognized by judicial practice. "Buyers are cautious" and "do not find the back account" are the biggest features of private antiques trading, "sellers hit the eye" and "buyers pick up leaks" have also become the greatest pleasure of antique collection, and even in public auctions, "fidelity" is a norm.

Paragraph 2 of Article 61 of the Auction Law stipulates that "if the auctioneer or consort declares before the auction that it cannot guarantee the authenticity or quality of the auction object, it shall not bear the liability for the defect guarantee." This means that buyers should take certain risks by virtue of their own ability to identify when entering the antiques trading scene, and the seller's obligation of good faith does not mean disclosing all information."

Different from ordinary commodity transactions, one party to the antiques transaction has an error of understanding based on limited antique information and cognitive level problems, and the "no reminder" and "inaction" of the other party are not civil fraud and do not constitute fraud. However, after all, antiques are also a commodity, the transaction actor is still subject to the Civil Code, the seller through forged identification, false promises, fictitious materials or years and other positive behaviors to induce the buyer to have a wrong understanding, the buyer can still apply the civil code 147 major misunderstandings, article 148 civil fraud clauses, etc. to request revocation of the sale contract; the seller knows that it is a fake (such as jade material, vase year, calligraphy and painting author is false), but through "active fiction" The method of inducing the buyer to fall into an error of understanding and purchase the fake antique has the purpose of illegally appropriating other people's money, constituting the crime of fraud in article 266 of the Criminal Law.

Of course, due to the existence of the customs of the antique trading industry, the buyer requests to withdraw the contract or determines that the seller constitutes the crime of fraud, and the evidence is the key, and sufficient evidence is needed to prove that the seller has fraudulent behavior and illegal possession purposes.

Reporter: How does the mainland law regulate the purchase and sale of antiques?

Ji Yang: Antiques trading is a special commodity transaction, and the mainland has not yet issued a law specifically for this kind of trading, but the relevant trading behavior is regulated by the law on the protection of cultural relics, the auction law, the civil code, the criminal law and other legal norms.

For example, the Law on the Protection of Cultural Relics clearly regulates the buying and selling of antiques by state-owned units, citizens and other entities: Article 44 "Prohibits State-owned Cultural Relics Collection Units from Donating, Leasing or Selling Cultural Relics in Their Collections to Other Units or Individuals"; Article 50 stipulates that citizens can only collect cultural relics acquired through the following five types: "Inherit or accept gifts according to law", "Purchase from cultural relics shops", "Purchase from auction enterprises engaged in cultural relics auction", "Exchange or transfer of cultural relics legally owned by individual citizens in accordance with law". Article 51 specifically states that citizens may not buy or sell "state-owned cultural relics, except as permitted by the State", "precious cultural relics in non-state-owned museums", "cultural relics whose origin does not conform to the provisions of Article 50", etc.

If the sale and purchase of antiques violates the above-mentioned mandatory provisions of the Law on the Protection of Cultural Relics, according to Article 153 of the Civil Code, the act of buying and selling is invalid from the outset; if a state-owned unit sells or privately gives the cultural relics in the collection to a non-state-owned unit or individual, it may also constitute the crime of "illegally selling or privately donating cultural relics collections"; if a citizen resells cultural relics prohibited by the state, it constitutes the crime of reselling cultural relics.

Reporter: Is it illegal to manufacture and sell fake antiques? How is it convicted?

Ji Yang: "antique counterfeiting" is very common in the field of collection, some buyers based on the artistic charm of the antique itself and voluntarily buy the antique imitations, fakes, especially the development of modern high imitation technology, many imitation fakes are also works of art with ornamental value, not all worthless, so the manufacture and sale of fake antiques in some areas even show a more complete industrial characteristics.

The reproduction and rubbing of cultural relics is subject to the Cultural Relics Protection Law and the Administrative Measures for the Reproduction and Rubbing of Cultural Relics, but "fake antiques" are not contraband, and the act of manufacturing fake antiques itself is also the act of making modern handicrafts, imitation, copying and other acts are essentially a kind of labor creation, so simply manufacturing fake antiques is not illegal, and the act of manufacturing and selling fake antiques as modern works of art is also allowed by law, and buyers " know that they buy fakes" belong to the category of autonomy.

Article 326 of the Criminal Law stipulates the crime of reselling cultural relics, and the "cultural relics" here can only be real antiques and real cultural relics, otherwise it will not hinder the order of cultural relics management, and simply selling fake cultural relics does not constitute this crime. However, if a person manufactures fake antiques and explicitly sells them as genuine antiques or sets up a value-preserving repurchase or other trading routines to trick others into mistakenly believing that they are genuine antiques and buy them, it constitutes the crime of fraud; although the seller has not yet committed fraud on the counterfeit antiques, but there is evidence to prove that the antiques are directly related to the crime of fraud, according to Article 22 of the Criminal Law, the manufacturing behavior is a criminal preparation for the crime of fraud.

Reporter: If the fake antiques are artificially damaged, but the seller claims compensation based on the value of the real cultural relics, how is the seller's behavior legally characterized in this situation?

Ji Yang: If the seller knows that the damage is a fake antique and claims the value of the real cultural relic, the claim obviously has no legal basis for rights, and even if the claim benefit is obtained, it belongs to the unjust enrichment of Article 122 of the Civil Code, and the claimee can request return.

If the seller uses fabricated evidence, false statements or other means to fabricate facts to file a civil claim lawsuit, obstructing judicial order or seriously infringing on the lawful rights and interests of others, it constitutes the crime of false litigation in article 307-1 of the Criminal Law. It should be pointed out that the crime of unjust enrichment, false litigation and fraud are not mutually exclusive, and if the seller uses deceptive methods to cause others to fall into a wrong understanding for the purpose of illegally occupying other people's property, and then compensates them with the value of real cultural relics, it also constitutes the crime of fraud; if the threat means are used to claim compensation, it also constitutes the crime of extortion.

Reporter: What problems do ordinary people need to pay attention to in the process of antique trading?

Ji Yang: The antique industry is a high-risk field, "imitations" and "fakes" are full of them, "routines" and "words" are commonplace, if there is a lack of certain antique knowledge, it may not only violate the law, but also may lead to the loss of money and difficult to obtain legal remedies. In the process of antique trading, special attention needs to be paid to the following aspects: First, caution is required when entering the industry. It is necessary to strictly abide by the laws and regulations such as the Law on the Protection of Cultural Relics, correctly understand the rules of the trade, and reasonably view risks. Second, take the initiative to reduce risks. Important matters in the antiques trade should be clearly inquired about or agreed upon in advance, and the evidence of the transaction during the contracting process should be retained. When buying antiques, you should have a good understanding of the store, the auction company, and the specific antique information. Third, scientific understanding of antique identification. Many antique appraisals still rely on the "vision" and experience of experts, so it is difficult to avoid subjectivity in appraisal conclusions on the one hand, and on the other hand, it also provides opportunities for false appraisals, including antiques, and art collectors may encounter fake experts, fake institutions, and fake appraisals. Fourth, pay attention to preventing new antique telecommunications network fraud. In the era of network intelligence, personal information is easy to leak, antique counterfeiting, identification fraud, collection routines and other fraudulent tricks can accurately target specific antique enthusiasts, so antique traders, especially elderly enthusiasts, should especially improve their awareness of anti-fraud.

· END·