文化財保護와 憲法

Abstract

An attempt is made to relate the Constitution to the protection of cultural properties. In Korea, protection of cultural properties is manifestly a constitutional matter for the state to have an obligation to take care of. The Constitution Article 9 provides: “the State shall strive to sustain and develop the cultural heritage and to enhance national culture.” The state's obligation to protect cultural properties is derived specifically from the provision. No doubt, protection of cultural properties is necessary for sustenance of the Korean national cultural identity. Culture is an indispensible ingredient of what the nation is. Naturally, protection of Korean cultural properties is important for the well-being of Korean nation. At the same time, Korea is Constitutionally ordained to “promote a lasting world peace and co-prosperity of the human beings”(the Preamble of the Constitution). Cultural properties, whatever their origin may be, are among the world cultural heritage that is indisputably important for the well-being of the global community. Cultural Properties Protection Act is adopted precisely to fulfil that important Constitutional obligations of the state for the protection of cultural properties and world heritage. Now Cultural Properties Administration is established to implement the cultural properties protection Act and related policies. Korea has entered the international cultural properties protection regime including UNESCO and its Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. A number of questions are raised concerning the Cultural Properties Protection Act in this article. One question is that of whether the Act is well-made to protect cultural properties or whether it contains any shortage or an insufficiently enacted provision. Another question is of whether the Act itself is sufficiently or aggressively implemented unhindered by bureaucratic red tapes and mannerism. Still another is of whether the state can complete its Constitutionally ordained obligations of cultural properties protection, even though the Act itself is well-designed. We found a few insufficiently designed provisions. We also found that officials in charge are not aggressive enough. And we envision that the state does not complete its Constitutionally provided obligations of cultural properties protection with the Act alone. First of all, protection of cultural properties is after all dependent upon the willingness of the citizens including the officials in charge. Secondly, the statutory and treaty concepts of cultural property are changing in their expanding contents and directions for protection as consciousness on cultural properties is changing. Consequently, cultural properties education has to be reinforced. Finally, aggressive cultural properties protection policies are wanted to be vigorously pursued and implemented, including those of bringing back to the country of origin of the numerous Korean cultural properties that were illegally taken by imperialist nations in the past and still remain there such as Japan and France.