| Summary: | 碩士 === 國立雲林科技大學 === 科技法律研究所 === 106 === In Taiwan, before the “Cultural Heritage Preservation Act” took effect, the “Natural Monument Preservation Law” was established during the Japanese-Occupied Period, and the “Law of Antiquity Preservation” was established after the Japanese-Occupied Period. Then, in 1982, the “Cultural Heritage Preservation Act” was established to replace the “Law of Antiquity Preservation”. In 2005, the overall Act and its structure were revised. Recently, in July 27th, 2016, the full text of the Act was revised, containing 11 chapters and 113 clauses. In the aspect of local autonomy, the “Local Government Act” was enacted, with regulations regarding autonomy related issues of local self-governing bodies and the right of levying local taxes. Clauses 18 and 19 are regulations in related to autonomy affairs of municipality and county (city) governments. Both clauses mention “cultural heritage preservation” and “establishment, operation, and management of cultural”. Based on this fact, affairs related to cultural heritage preservation shall be administered under local autonomy and shall not be under the authority of the central government.
Item 1, Clause 4 of the “Cultural Heritage Preservation Act” states that “the authority specified in this Act indicates the Ministry of Culture in cases in relation to the central government, the municipality government in cases in relation to a municipality, and the county (city) government in cases in relation to a county (city). However, in cases with natural landscape or natural memorial, the central authority indicates the Council of Agriculture, Executive Yuan.” However, the statement that “related guidelines shall be drawn up by the central authority” can be found in many other clauses. Businesses which local self-governing bodies are in charge of shall also be reported to the central authority for reference. The high density of the statement that “related guidelines shall be drawn up by the central authority” shows that the concept of the exclusive right of legislation of the central government is everywhere across the “Cultural Heritage Preservation Act”. Therefore, local self-governing bodies are actually just reduced to “mandated organizations”.
This study started with the nature of the development of local systems and the reasons of establishing the “Local Government Act”, and then made observations through the historical development and revision process of the “Cultural Heritage Preservation Act”. This study argued that for “cultural affairs”, the legal status of the “Local Government Act” should be higher than that of the “Cultural Heritage Preservation Act”. In other words, the “Cultural Heritage Preservation Act” should be governed by the “Local Government Act”. The “Local Government Act” embodies the constitutional laws. The Act makes laws regarding the authorization of local self-governing bodies to handle cultural affairs. And it addresses that cultural heritage preservation shall be based on the “bottom-up local governance”. And “national affairs shall be handled following the instructions of the basic law” with the frame set up by the central government legislation. This way the argumentation is legitimate and proper.
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