(Source: Caixin.com 2026-01-07)

Xu Haiyan

We must upgrade the donation relationship from simple institutional trust to a legalized institutional trust as soon as possible. A rigorous, meticulous, fair, reasonable, forward-looking and predictable obligation-attached donation contract is precisely the effective carrier of this institutional trust.

Recently, the uproar between the Nanjing Museum and the descendants of the donors has awakened public reflection and heated discussion on the cultural relics donation system. Facing this dispute over the preservation and disposal of ancient paintings that spans more than 60 years, the legal issue we should think about is: for the special civil legal act of cultural relic donation, how to create a special legal arrangement between public law systems such as the Cultural Relics Protection Law and private law norms such as the Civil Code to ensure that when the state exercises ownership of cultural relics, its specific management actions can fully respect and fulfill the public welfare purposes or obligations attached to the donation. Only by correctly answering this core question can we activate social enthusiasm for donation, build a solid foundation for public welfare protection of cultural relics, and achieve the preservation and increase of the value of state-owned cultural relics.

Reasonable legal thinking on the Nanjing Museum cultural relics donation case

In 1959, the Pang family donated a batch of precious ancient paintings to the Nanjing Museum. In the special historical era when the Civil Code was still lacking, the parties involved did not sign a strict written contract. There was only a handwritten letter from the then president, Mr. Zeng Zhaoxuan, saying "I will keep it well" as a promise to accept the donation of cultural relics. More than half a century later, this "gentleman's agreement" based on mutual trust has led to disagreements over the understanding of the word "preservation" and has evolved into a complex legal, emotional and moral entanglement.

Starting from pure legal logic, under the current framework of the Civil Code, the donor makes a donation for the specific purpose of “permanent preservation and public exhibition”, and the museum accepts the donation based on its understanding of the purpose or obligation of the donation. In other words, both parties have reached an agreement on this. The museum's behavior violates the core contracting purpose and contractual obligations and must constitute a breach of contract.

Unfortunately, there was no Civil Code at that time, and there was no format text for cultural relics donation contracts. This kind of donation is more like a sincere trust based on shared values ​​and institutional trust. “Keep it well” will be interpreted by the donor as a promise never to be lost or sold, and will also be interpreted by the museum as a commitment to perform professional custody duties as much as possible in the state-owned collection system. Although there is a consensus in the interpretations of both parties, there are also differences. In the absence of contractual definitions, major disagreements can easily arise.

This case profoundly reveals three long-standing institutional flaws in the field of cultural relics donation in China

First, the allocation of rights, obligations and responsibilities is unclear. The state is the abstract ownership subject, the museum is the concrete manager, and the donor is the special stakeholder. Where are the boundaries of the rights of the three? Does the museum's "management power" include the authority to dispose of fakes that it deems to have "no cultural relic value" or cultural relics that are not certified to be included in the collection in order to optimize the collection? Are the legal effects of the donor’s reasonable expectations for the “purpose of donation” binding?

Second, there are institutional deficiencies in procedural guarantees. In the absence of an agreement on the exit mechanism for donated goods, once the two parties disagree, it is easy to reach a deadlock and even lead to a rift in the values ​​of the social group. Since there is no legal way to quickly solve the problem, we can only resort to time-consuming and laborious private negotiations, complaints and letters, and even lawsuits in public opinion.

Third, there is a conflict between moral and legal evaluations. Most cultural relics often carry the collective memory and special emotions of the family. Disposal of cultural relics purely in accordance with state-owned assets management regulations, although there are policy and legal basis, may detract from the donor's emotional identification, trigger negative public opinion, and dampen the enthusiasm of potential donors.

Constructing a normative framework for "gift contract with obligations"

In order to fundamentally resolve the dilemma faced by the Nanjing Museum case, it is recommended that the legislative body promote the transformation of cultural relics donation from mainly relying on moral integrity to a model of "morality as the basis and rule of law as the track" as soon as possible. Article 661 of the Civil Code stipulates: "A donation may be accompanied by obligations. If a donation is accompanied by obligations, the donee shall perform the obligations as agreed." Therefore, it is recommended to advocate and standardize the use of cultural relic donation contracts with obligations, consolidate the cultural sentiments of donors and the professional responsibilities of museums, and form an eternal contract of mutual respect and mutual trust. In order to promote the spirit of contract, it is recommended that the contract clarify the following key elements:

First, clarify the purpose of donation and core obligation terms, and implement the obligations of the recipient. The preamble or header of the contract should clearly state the specific purpose of the donation, including but not limited to "to support the research and permanent display of ancient Chinese calligraphy and painting art in your museum." Correspondingly, the core obligations of museums should be clearly defined as: professional storage, maintenance, research, and exhibition to fulfill this purpose, and their commitment to use them for public welfare. This translates a simple desire for safekeeping into concrete contractual terms that are enforceable.

Second, it is recommended to set up supervisory rights for donors. In order to show respect for the donor, it is recommended that the contract give the party and his descendants several "soft" rights: First, the right to know. Donors have the right to regularly obtain a "health report" of cultural relics, including preservation environmental data, exhibition records, summaries of research results, etc., as well as information on the true condition of cultural relics when they encounter major events. The second is the right to view. Donors have the right to freely view cultural relics on the premise of reasonable reservations and without affecting the safety and public exhibition of cultural relics, maintaining emotional ties and enhancing mutual trust between donors. The third is to increase the protection of the honor of donors. Museums should truly, accurately, completely and permanently mark donor information in all public places such as exhibitions, catalogs, and digital presentations. These empowerment measures do not interfere with the museum’s professional autonomy and will effectively enhance transparency and trust in the donation process.

Third, it is recommended to create a preset withdrawal and retrieval mechanism to solve the problem of lack of mutual trust. This is the clause design with the most disruptive institutional innovation value in the contract. For modern replicas that have been identified as having no cultural relic value or cultural relics that have been identified as not meeting the collection standards, the "Museum Collection Management Measures" and the "Interim Measures for the Management of the Exit of State-owned Cultural Relics from Collections" have relevant provisions. For example, Article 6 of the "Interim Measures for the Management of the Withdrawal of Cultural Relics from State-owned Collections" stipulates: "If a state-owned cultural relics collection unit plans to withdraw donated cultural relics from a collection, it shall do so in accordance with the agreement agreed with the donor; if there is no agreement, it shall obtain the consent of the donor in advance." It is recommended that the contract stipulates in advance that if the cultural relics are confirmed to be fakes or non-cultural relics by the national or provincial cultural relics appraisal committee and the museum decides to withdraw them from the collection, the donor or his heirs should automatically enjoy the right of retrieval or the right of first refusal. To this end, it is recommended that the contract clearly clarifies the specific process and time limit for the donor to exercise the right of withdrawal or right of first refusal, as well as the reasonable expenses that the donor may need to bear (such as storage and maintenance costs in the past few years). In order to achieve the coordination and unification of private rights and public interests, it is recommended that the contract also stipulate that when realizing this right, overall consideration should be given to the connection with the Cultural Relics Protection Law, the Regulations on the Management of Administrative State-owned Assets and other laws and regulations, so as to promote the museum to initiate the approval process for the disposal of state-owned assets in accordance with the contract. This mechanism for returning cultural relics can help curb the illegal behavior of museum directors and illegal intermediaries, colluding with each other, maliciously colluding, and deliberately identifying cultural relics as fakes or non-cultural relics.

Fourth, it is recommended that the contract stipulate a dispute resolution method and set up a safety valve for potential disagreements. It is recommended to clarify the resolution methods and jurisdictional institutions such as negotiation, mediation, arbitration or litigation to avoid getting into procedural disputes in the future.

Systematic construction of rational legal thinking

The significance of promoting cultural relic donation contracts with obligations goes beyond the formulation of contract texts. It essentially promotes the evolution of a deep-seated concept of the rule of law and promotes the systematic construction of a matching institutional system.

In terms of conceptual change, museums must get rid of the official management and control thinking of "accepting donations is to give honor to the donor" as soon as possible, and establish an equal thinking of "donation is to jointly build and share cultural undertakings". A standardized contract does not distrust the museum, but rather reinforces its professional responsibilities and avoids future risks. For the donor, through the clear agreement in the contract terms, the subjective intention of the donation purpose is solidified into a legally binding objective obligation, thus providing the donor with certain and enforceable legal protection.

In terms of institutional innovation, it is recommended that the national cultural relics authority take the lead and work with relevant agencies such as market supervision departments, judicial authorities, and financial departments to jointly study and draft the "Model Text of Compulsory Donation Contracts for Cultural Relics, Artworks, etc." The text should provide option modules for different situations (such as whether to include the right of retrieval or the right of first refusal) for both parties to negotiate and make personalized modifications with the assistance of professional lawyers. At the same time, the financial department and the state-owned assets management department must also open up a clear "green channel" for the approval of asset disposal involved in the performance of such contracts, and clarify that the approval standards and processes for cultural relics retrieval applications based on valid contracts should be different from ordinary state-owned asset disposals to ensure that the spirit of the contract can take root.

More importantly, the obligatory donation contract sets specific management constraints for the museum as a “trustee” within the framework of national ownership. It does not change the state-owned attributes of cultural relics, but it profoundly affects the management and governance rules of cultural relics. This embodies the essence of modern public governance: while adhering to the principle of the supremacy of public interests, through precise legal and contract design, it respects and protects reasonable wishes for cultural relic donation, thereby achieving incentives, compatibility, and universal benefits for public and private interests (here, the specific purpose of the donor).

Conclusion: From trust to trust

The continued fermentation of the Nanjing Museum case has caused countless potential donors to stop and wait and see. In order to optimize the ecological environment of cultural relics donation, it is necessary to upgrade the donation relationship from a simple institutional trust to a legalized institutional trust as soon as possible. A rigorous, meticulous, fair, reasonable, forward-looking and predictable obligation-attached donation contract is precisely the effective carrier of this institutional trust. This institutional arrangement is not only a legal response to lessons learned from past performance disputes, but also preventive locking in of future potential performance risks and moral hazards by presetting clear terms of rights and responsibilities.

Only the spirit of trust and contract under the rule of law can ensure that donors dare to be charitable, clarify the guardianship and responsibilities of the museum, and promote the cultural relics and treasures bearing the mark of civilization to obtain eternal tranquility and dignity on the track jointly created by law and morality. This is not only a key key to unraveling historical disputes, but also paves a new path for the future in which state ownership, professional museum management, enthusiastic social participation, and donors’ trust can work side by side to jointly create a new ecology of cultural relics protection that truly knows how to respect, cherish, and give back to donations.

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