In the face of the fact that the cultural relics department has no basis for law enforcement, can the procuratorial organs play a functional role in promoting the enterprises involved in the case to bear the liability for compensation and further realize the effective protection of cultural relics?
On December 27, 2023, the Supreme People's Procuratorate released a number of typical cases of public interest litigation for the protection of cultural relics and cultural heritage, including the above-mentioned "Ningbo Municipal People's Procuratorate of Zhejiang Province v. a tunnel project *** civil public interest litigation for damage to Wu Jie's former residence and other cultural relics".
The construction of the subway caused irreversible damage to cultural relics.
Development or protection first?
The coastal defense site of Zhenhaikou, Ningbo City, Zhejiang Province is a national key cultural relics protection unit, and it is also the most well-preserved coastal defense system and coastal defense commemorative heritage in China. The former residence of Wu Jie, which was damaged in this case, is one of the 14 relics of the coastal defense site in Zhenhaikou. Another damaged building, Xu Zhai, is a cultural relics protection unit in Zhenhai District, which is an important historical site and representative building in modern times.
On February 26, 2019, the excavation of the foundation pit of a subway station of the second phase of Ningbo Rail Transit Line 2 (hereinafter referred to as the "second phase of the project of Line 2") directly led to the settlement of the foundation and the cracking of the wall of Wu Jie's former residence and Xu Zhai near the construction site, and indirectly aggravated the original natural damage.
On August 4, 2020, the Zhenhai District Procuratorate of Ningbo City, Zhejiang Province filed a case for investigation. Through on-site investigation and consultation with experts, it was determined that the excavation of the track foundation pit of the second phase of the Line 2 project led to irreversible damage to the cultural relics.
The case-handling personnel inspected the cracking of the wall of Wu Jie's former residence on the spot.
The case-handling personnel inspected the cracking of the ground of Xu's house on the spot.
The case-handling personnel inspected the cracking of the wall of Xu's house on the spot.
To this end, the Zhenhai District Procuratorate convened the Zhenhai District Bureau of Culture, Radio, Television, Tourism and Sports (hereinafter referred to as the "District Bureau of Culture, Radio, Television, Tourism and Sports"), the construction unit of a rail transit group (hereinafter referred to as the "rail group") and the construction unit of a tunnel project (hereinafter referred to as the "tunnel engineering company") to negotiate, form a "reinforcement first, then repair" rectification idea, and make it clear that after the completion of the project, the rail group and the tunnel engineering company will start the cultural relics repair project in a timely manner.
On August 20, 2020, the Zhenhai District Procuratorate issued a pre-trial procuratorial recommendation to the District Bureau of Culture, Radio, and Television, recommending that it take necessary protection measures for the cultural relics involved in the case in accordance with the law. On October 20, the District Bureau of Culture, Radio, and Television replied in writing that the tunnel engineering company suspended the construction of the project, carried out rescue reinforcement of the cultural relics, and set up observation points around the cultural relics by professional and technical units to monitor the settlement of the foundation in real time.
In May 2021, the rescue reinforcement project of cultural relics was accepted, and the construction of the track project resumed. On December 1, 2022, a subway station of the second phase of Line 2 was officially put into operation.
Administrative first, then civil.
The confirmation of "lawsuit" forms a closed loop of public interest protection.
In May 2023, the Zhenhai District Procuratorate found through a "retrospective" that the tunnel engineering company did not start the repair project on the damaged cultural relics after the completion of the subway. At the same time, because the second phase of the Metro Line 2 project is located outside the two cultural relics construction control zones of Wu Jie's former residence and Xu Zhai, and has gone through the legal approval process, the District Bureau of Culture, Radio, and Television also lacks the basis for further law enforcement.
Cultural relics are still in a state of damage, although the administrative organs have fully performed their duties in accordance with the law, but the efficiency of law enforcement is obviously insufficient, and the cultural relics department has no basis for law enforcement, how can the protection and restoration work be carried out?
On May 29, 2023, the Zhenhai District Procuratorate initiated the civil public interest litigation filing procedure. On June 30, the court transferred the case to the Ningbo Municipal Procuratorate for review and prosecution.
After several on-site investigations and investigations, the Ningbo Municipal Procuratorate found that the two cultural relics are state-owned property rights, and the impact of the second phase of the project on the two cultural relics buildings and walls exceeds the current code limit requirements, and the tunnel engineering company should be the subject of tort liability in this case, and the rail group, as the construction unit, has an interest in this case and should be listed as a third party.
The total cost of the restoration works of the two sites was assessed to be 939870,000 yuan. In view of the fact that the damage to cultural relics is the result of the joint action of natural damage and engineering construction, the Ningbo Municipal Procuratorate combined the opinions of ancient building restoration experts and the District Bureau of Culture, Radio, and Television to determine that the tunnel engineering company should bear 511 proportionally390,000 yuan, and the rest of the repair costs shall be borne by the cultural preservation funds and cultural relics management units.
On July 3, 2023, the Ningbo Municipal Procuratorate filed a civil public interest lawsuit with the Ningbo Intermediate People's Court (hereinafter referred to as the "Ningbo Intermediate Court"). On August 21 of the same year, the Ningbo Intermediate People's Court organized a pretrial conference. During the meeting, the Ningbo Municipal Procuratorate reached a mediation agreement with the defendant tunnel engineering company based on the expert opinions on the restoration of ancient buildings and the progress plan of the repair project. The tunnel engineering company undertook the cost of the two cultural relics repair works in the total amount of RMB 511390,000 yuan, 30 days, 6 months, 1 year from the date of the effective date of the mediation agreement to pay all the repair costs in three installments, the third party rail group to cooperate with the tunnel engineering company to perform the mediation agreement.
On October 27, 2023, the tunnel engineering company paid the first phase of 3 million yuan in repair fees to the special account of the Ningbo Municipal Procuratorate for public welfare damage compensation. At present, the restoration of cultural relics is progressing in an orderly manner.
Justice.com WeChat official account).