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记者调查：“章公祖师”荷兰诉讼首场听证将有何交锋
记者调查：“章公祖师”荷兰诉讼首场听证将有何交锋
Spotlight: Chinese villagers to claim back stolen mummy Buddha in Dutch court
新华社海牙７月１２日电 记者调查：“章公祖师”荷兰诉讼首场听证将有何交锋
新华社记者刘芳 杨昕怡 by Liu Fang, Zindziwe Janse
中国福建村民向荷兰藏家追索章公祖师肉身坐佛像的诉讼案将于１４日在荷兰举行首场法庭听证会，控辩双方将首次对簿公堂。
原告律师及法律专家指出，中国村委会能不能在荷兰法庭打官司、荷兰藏家所称“佛像已被转手”是否合法有效等争议，将是直接影响本案是否能在荷兰被受理的程序性问题。
此外，章公祖师肉身是不是荷兰法律定义上的“尸体”及应否产生所有权、荷兰藏家所购佛像与阳春村被盗佛像是不是同一尊佛像、荷兰藏家是不是善意取得佛像等争议，也可能成为双方交锋点。
THE HAGUE, July 12 (Xinhua) -- Chinese villagers who want to get back their stolen Buddha statue with in it a mummified body of an 11th-century monk will face the Dutch collector in the court of Amsterdam on Friday afternoon.
After going through documents filed by both parties, Xinhua presents here the key issues on admissibility, procedures and merits that might be discussed at the first public hearing of this case.
中国村委会能不能在荷兰打官司
２０１６年５月底，福建省三明市大田县吴山乡阳春村和东埔村村民委员会委托中荷律师团向荷兰法庭提交起诉状，要求法庭判决荷兰藏家奥斯卡·范奥维利姆将其所持章公祖师肉身像归还阳春村普照堂。
在今年１月提交的应诉答辩状中，被告范奥维利姆称，“阳春村和东埔村村委会不是荷兰《民事诉讼法典》条款定义的自然人或法人，不可被认定为具有法律人格的有效实体”，因此“原告诉讼请求应被判决不予受理”。
针对被告这一主张，原告向法庭补充提交相关说明文件说，根据中国法律规定，村民委员会有权依据法律或接受本村村民委托作为当事人参与诉讼。在实践中，有大量诉讼案例系村民委员会作为原告或被告参与其中。
中荷律师团的荷兰籍律师扬·霍尔特赫伊斯告诉记者，荷兰法官可能并不了解中国法律对村委会诉讼主体资格、特别法人资格的规定，原告方将就此展开陈述。这是法官裁定案件是否可受理的一个关键问题。
中国政法大学国际法学院副院长霍政欣教授告诉记者，依据荷兰法律和司法判例，既非自然人亦非法人的“劳资协议会”及普通合伙关系等，也能在荷兰法院提起民事诉讼，享有诉讼主体资格。判定诉讼主体资格的关键，在于考察原告是否具有诉讼利益。
霍政欣说，根据荷兰相关法案，“在认定此案诉讼主体资格时，荷兰法院不仅要依据荷兰法律，也要参考中国的法律法规；而依据中国法律，村民委员会具有作为原告的诉讼主体资格，这毫无疑问”。
CAN CHINESE VILLAGE COMMITTEE STAND AT DUTCH COURT?
Villagers from two villages in China's southeastern province of Fujian had their village committees to file the claim that the mummified body, or "Master Zhang Gong" as called and worshipped during the past centuries, should be returned and placed back in their village temple.
In his answer to the claims, Oscar van Overeem, an Amsterdam-based architect and experienced art collector, argued that a "village committee is not to be referred to as a natural person or legal person" under the Dutch Code of Civil Procedure and "the claimants should be declared inadmissible in their claims."
The villagers then filed additional documents to explain that under the Chinese law, a village committee, as a special legal person, is entitled to attend litigation as a party based on legal provisions or authorizations from villagers. In practice, there are a great number of cases in which villagers' committees are claimants or defendants in lawsuits.
"The judge in the Netherlands has the responsibility to first check whether the parties have legal representation power. It is possible that they do not fully understand the legal personalities of village committees under the Chinese Law. I will give more information about this at the hearing," Dutch lawyer Jan Holthuis, who represents the Chinese villagers in Dutch court proceedings, told Xinhua.
“佛像被转手”是不是“欺诈性转让”
被告在答辩状中说，“范奥维利姆已于２０１５年１１月２９日与第三方达成交换协议，用所持佛像交换该第三方私人收藏的佛教艺术品，并向此第三方承诺不会透露其姓名”。“被告既不持有佛像，也不拥有佛像所有权，因此原告的诉讼请求应被判决不予受理，或予以驳回。”
就此，原告补充提交了范奥维利姆于２０１５年１２月、２０１６年４月及５月发出的电子邮件，范奥维利姆在这些邮件中写道：“我可以代表佛像现在的持有者，采取行动和作出决定。”
原告要求法庭判决被告提交其所述的“交换协议”、公布所谓“第三方”的身份信息；要求法庭判决此“交换协议”非法无效。
霍尔特赫伊斯告诉记者：“这一‘交换’行为可被推定为‘欺诈性转让’。这样的交换意味着，如果法庭裁决范奥维利姆应将佛像归还给村民，他就可以假借‘已将佛像转手给他人’，阻挠裁决的执行。”
霍尔特赫伊斯还指出，范奥维利姆明确表示，与之签署“交换协议”的“第三方”对佛像有关争议完全知情，这就意味着，此“第三方”获得佛像绝不可能是善意取得。
PRESUMPTION OF FRAUD?
The defendant said that with a "swap agreement" reached on Nov. 29, 2015, Van Overeem has exchanged the statue against several Buddhist art objects from the private collection of a third party and committed to the third party to not disclose his identity.
A letter signed by his insurer was submitted as proof. "The Song dynasty mummy is insured by us since the commencing date of the first policy and at the most recent time for a sum of 950,000 euro. However, this object is at the moment no longer insured by us, this in connection with an exchange-swap of the object as reported by you [Van Overeem] to us," it stated.
The villagers ask the court to demand the Dutch collector disclose the "exchange agreement" and the identity of the "third party". For them, the exchange agreement is contrary to common decency and public order and therefore is void.
They also filed emails sent by the Dutch collector, reading "I can 'just' act, discuss and make decisions on behalf of him [the third party]."
"It is a 'presumption of fraud', or an 'action pauliana'. By making the statue away, the defendant causes in our view a presumption of a fraudulent act, namely preventing the enforcement of a claim of the villagers to return Zhang Gong, if the court would so decide," commented Holthuis.
"The defendant also said this third party is fully aware of the situation, which means, this third party can never be in good faith," he added.
章公祖师肉身能不能被据为“财产”
原告主张，章公祖师肉身是符合荷兰法律定义的“尸体”，依照荷兰《埋葬与火化法》，无人可拥有其所有权，而福建村民拥有其处分权。
起诉状写道，章公祖师对当地人广施救助，予民众以医疗和精神上的帮助，死后肉身坐化成佛，通过一定措施成为不腐之肉身坐佛，然后才修塑成金身佛像。佛像里的肉身，是一具身份可识别、含有完整骨骼的高僧坐化肉身尸体。章公祖师肉身已成为富有宗教及精神含义的客体。在普照堂建成后各个时期，福建村民对“章公祖师”照拂有加，已达千年。作为保管人、管理人和受益人，福建村民拥有对章公祖师肉身的处分权。
被告答辩状援引佛像ＣＴ扫描结果称，肉身大部分内脏器官不复存在，不是完整躯体，因此不是荷兰法律定义的“尸体”；荷兰《埋葬与火化法》不适用于包含有人类遗体或残骸的艺术品，此案应适用物权法。被告还在补充文件列举了美国、比利时、英国等地的木乃伊拍卖、交易、展出等事件，辩称章公祖师肉身和那些木乃伊一样，可被视为“财产”，可产生所有权。
霍政欣指出，这尊佛像之所以具有特殊的重要价值，恰恰在于其所含的肉身，肉身对村民的精神意义远超过组成佛像的材料（即覆盖物）。即便章公祖师肉身不能被荷兰法庭认定为“尸体”，也至少构成“人体遗骸”。“人体遗骸主要体现的是精神价值，而非财产价值。对于原告的返还请求，也应从精神价值出发，以道义角度多考虑其合理性。”
IS THIS A CORPSE?
The villagers claim that the intact mummy of the monk Liu Quan is a "corpse" of an identifiable person as defined in the Dutch Burials and Cremations Act. A corpse cannot be subject to ownership according to this Act.
"Master Zhang Gong was famous during his life as a spiritual leader, because of his help to those who needed it and because of his healing powers. Upon his death his body was protected against rotting through herbs and other means. Thereafter the body is protected with a layer of lacquer and covered with a gold layer," said Liu Yushen, a Beijing registered lawyer who provides legal supports to the villagers.
"The likely wish of monk Zhang Gong Liu Quan is that through mummification, he would after his death continue to have a spiritual and healing power on his environment, and he would certainly not have agreed that his body would become the subject of (illegal) art trade," Liu told Xinhua.
"For the villagers who live in a region of the root of Buddhism in China, mummification has a special meaning. It implies that the body of the enlightened Buddhist monk remains part of the human world and can still be defiled after his death through external influences. From generation to generation the statue is worshipped and the day of the death of the monk is up to the present day memorized by ceremonies of piety," he added.
The Dutch collector argues that what was discovered in his statue was not a "corpse" but "human remains" because "most of the organs are absent". He filed several articles reporting on the selling, buying, and auctioning of mummies in the United States, Canada, Britain, etc., to support his opinion that a statue with a mummy inside is a "thing" and therefore object to ownership.
"There is case law that even a body without a head or without arms and legs is a corpse. In this case we have a complete body, and it is not an anonymous body, but a body that we have identified with a name. So I am confident in defending the villagers's claim," said Holthuis.
是不是同一尊佛像
被告答辩状提出的核心主张是，“原告主张返还的佛像与范奥维利姆１９９６年中购得的佛像不是同一尊佛像”。
答辩状附上多家机构信函，试图证明范奥维利姆此前一直坚持的说法：他所购佛像出现在香港的时间早于章公祖师肉身像被盗时间——１９９５年１２月１４日，因此两尊佛像不可能是同一尊佛像。但答辩状及补充文件未能提供佛像上一持有人鲁斯滕伯格从他处获得佛像及范奥维利姆从鲁斯滕伯格处获得佛像的任何交易文件。
为证明此佛像非彼佛像，答辩状还大篇幅陈述范奥维利姆所购佛像不具备村民描述的特征，包括“左手虎口位置有孔”“颈部有裂纹、头部或有松动”等。
记者从中国国家文物局获悉，在诉讼启动前的归还谈判中，福建省文物专家已告知范奥维利姆，佛像特征某些说法系个别村民的回忆表述，在已有大量确凿和关键证据的情况下，不应纠缠于此。
原告向法庭提交的证据包括：阳春村、东埔村保留的家谱，内有关于章公祖师、普照堂的明确记载；村民世代看护供奉章公祖师肉身像的历史记录；村民们举办祖师巡游活动和其他仪式的图片等。
原告特别援引２０１４年荷兰德伦特博物馆在范奥维利姆所购佛像展出时出版的图册文章。曾对佛像进行科学研究的荷兰学者在文中提到，佛像被发现内有文卷，卷上写有汉字两行，含“本堂普照”“章公六全祖师”字样。这足以证明，范奥维利姆所购佛像与普照堂被盗佛像一一对应的密切关系。
ARE THERE TWO STATUES?
The Dutch collector states that the Buddha statue that he bought is not the stolen statue from Yangchun village in China.
One of his main arguments is that a collector named Benny Rustenburg has acquired the statue at the end of 1994/the beginning of 1995 in Hong Kong -- well before the date of theft claimed by the villagers (Dec. 14, 1995), after which Rustenburg had the statue transported from Hong Kong to Amsterdam in mid-1995.
However, he does not provide concrete and substantial documents to support this narration.
One of the key arguments cited by the villagers comes from an article published in the catalogue of the special exhibition at the Drents Museum in the Netherlands, of which the statue was part.
"C14 dating methods confirmed that the mummy died between 1022 and 1155. During restauration a linen roll was found with two columns of Chinese characters. The name of the holy person is mentioned 'Liu Quan'. X-rays show an intact skeleton. The cause of death is even attributed to a tooth abscess," read the article written by a researcher commissioned by the Dutch collector.
"Not even mentioning the obvious similarities in posture and physique between the Buddha bought by Van Overeem and the Buddha on the few old pictures kept by the villagers, just the fact that 'Liu Quan', the name of the monk, and 'Pu Zhao Tang', the name of the village temple, as well as other Chinese characters, are written on the linen roll, is already decisive reference that this statue is the same statue as the one stolen from the village," said Liu Yushen.
是不是“善意取得”
原告主张范奥维利姆购买佛像的行为并非善意。原告指出，身为专门从事亚洲艺术品交易的收藏者，范奥维利姆本该询问和要求出具佛像可以出口和交易的相关文件，以核准所购佛像并非从中国非法出境。考虑到其所支付的价格，范奥维利姆知道，或者至少应当知道，这尊佛像是一件有价值的佛教文物，也应该预料到其可能承担文物非法来源的风险，以及第三方可能就该佛像主张权利的可能性。
被告抗辩说，范奥维利姆的职业是建筑师，他不是“专业的亚洲艺术品交易商和收藏家”，而佛像上一持有者鲁斯滕伯格在香港获得佛像时，“香港对文物进出口并无限制”。
霍政欣说：“专业收藏家不等于职业收藏家，许多专业藏家另有职业。被告以建筑师为职业，同时也是专业收藏家，两种身份并不矛盾。针对活跃的专业收藏家，其购买藏品时是否为善意，是否履行了尽职调查义务，依据荷兰法律与本领域职业道德与行为守则，须满足更加严格的标准。综合本案交易行为发生地以及交易价格，有理由认定，范奥维利姆购买佛像的行为并非善意取得。”
GOOD FAITH OR NOT?
The villagers believe that the acquisition of the statue by Van Overeem was not in good faith.
"At the time of this acquisition, Hong Kong was a known place for trading of stolen Chinese art. Being a specialized trader and collector of Asian art, he should have asked for documented provenance of the statue and export documentation evidencing that the statue was not illegally exported from China," they stated in the claims.
And, he "knew, or should have known, given the price he paid for the statue, that the statue was a valuable Buddhist relic".
The Dutch collector challenged the claim by stating that he is an architect, not a specialized trader and collector of Asian art; he bought the statue in Amsterdam, not in Hong Kong or the mainland of China; and in the period concerned, in Hong Kong no import and export restrictions applied.
He added that under the Dutch Civil Code, he is presumed to be in good faith and the claimants have to prove that this is not the case. "Whoever is possessor in good faith, stays possessor in good faith, even though he at a later moment in time is informed that he is not the beneficiary."
"Many specialized art collectors have other jobs. Mr. Van Overeem could be both architect and specialized art dealer and collector at the same time. These two identities are not contradictory," commented Huo Zhengxin, vice-director of the School of International Law at the China University of Political Sciences and Law.
"Several documents filed by himself refer to him as being 'an active' or 'experienced' collector. For an active and experienced collector, a higher standard for duty of diligent investigations must apply. We have good reasons to believe that Mr. Van Overeem was not in good faith," he added.
The first hearing will last one hour. "Most likely, following the hearing, the court will issue a procedural order asking for a new exchange of statements to challenge. This would be the next step of the case," said the Dutch lawyer who represents the Chinese villagers.
新华网 07-12 21:53 记者调查：“章公祖师”荷兰诉讼首场听证将有何交锋
http://news.xinhuanet.com/world/2017-07/12/c_1121309475.htm
Spotlight: Chinese villagers to claim back stolen mummy Buddha in Dutch court
Source: Xinhua| 2017-07-13 05:37:04|Editor: Mu Xuequan by Liu Fang, Zindziwe Janse
http://news.xinhuanet.com/english/2017-07/13/c_136439345.htm |
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