Régimen jurídico del patrimonio cultural de las confesiones religiosasinteracciones y conflictos entre la legislación civil y la canónica

Resumo

The objective of this thesis is to analyse the evolution there has been in Spanish cultural patrimony, with particular emphasis on the religious denominations and the legislation in place from the XIX century until the present time. Our starting point is ownership rights, which have undergone a major transformation from their consolidation right up to our time, becoming a dynamic, flexible institution as regards content and the social function it plays. All of this arouses as much private as general interest, the latter being protected by the state, thus guaranteeing that the social function implied in said assets is complied with, the result of which will be seen in the possibilities of action the proprietor of cultural assets may have. Within common cultural patrimony, we will differentiate between civil patrimony and the current extensive religious patrimony, safeguarded as much by civil as ecclesiastical legislation, which have not always moved in the same direction. This duality, besides highlighting the differences that currently exist between the Catholic Church and the other religious denominations, also shows the disparate treatment of the tools of operation developed by the regional legislation for the conservation and protection of the cultural assets located in the different regions. Because of all of this, the need deal with the study of cultural patrimony in a unitary form, is a priority objective, given the legal diversity present in the different areas; in other words, the areas of public right, ecclesiastical right of the state and private right. The methodology used to carry out the investigation proposed is that which is known as documental analysis and interpretation, based on the contextualised interpretation of facts, which, when used with legal regulations, jurisprudence and doctrine, has allowed us to check and conclude by means of objective information. As a paradigmatic example of the lack of legislative unification as a result of new regional regulation, we have made a study of the controversy arising from the exclusive competences that two autonomous communities are trying to hold on cultural patrimony belonging to the Catholic Church, as in the case of the monastery Monasterio de Sijena and eastern part of Aragón. These cases summarise many of the questions that arise not only as a result of the confrontation between concurrent regulations, but also the questioning of the cooperation principle that should prevail in religious relationships and the no less important principle of coordination between autonomous communities so as to resolve the conflicts that come about due to cultural asset recovery policies. The analysis of these particular cases of assets belonging to the Catholic Church reveal the use of the techniques used from all branches of law involved in order to reach less conflictive solutions, while keeping in line with the desired protection, conservation and defending of patrimonial culture. Therefore, the solutions provided bring us closer to the review and configuration of the mechanisms which measure the respect for the essential content of this ownership with the appropriate management of cultural assets. It also reinforces the need to arbitrate collaboration techniques, in both state and regional regulations, given the vicissitudes the conflicts analysed have gone through, as well as the effectiveness of these techniques, to be used as much by the autonomous communities in dispute, as well as those in dispute with proprietors. The aim of this would be not only to facilitate recovery policies of the assets in question, but also so as not to infringe ownership rights of their proprietors.