Who is Sanyu?
Sanyu (1895 – 1966), a modernist Chinese painter, is one of the most sought-after names in Asian art market. His works, noted for sensual colors and flowing lines, have fetched many highest hammers at international auctions held in Hong Kong and Shanghai in the 21st century, even in the amidst of the pandemic. All this is good except for one thing: Sanyu never benefited from this posthumous fame. When he died in 1966 in a Parisian garret from an accidental gas leak, his only properties were his works, which were soon sold by weight to pay for his cremation and burial costs. For the most part of his four-decade Parisian sojourn, Sanyu remained an outsider to the Ecole de Paris, although he did earn several chances to join the pantheon in the 1930s. He was too Bohemian both in life and in work.
The world's best Sanyu collection is preserved at the National Museum of History of Taiwan, a land he never ever set foot on. The museum's possession of this collection, with an estimated market value of over NT$10 billion, is not totally free from dispute and might be a Cold War legacy.
In 1963, months before France and PR China established formal diplomatic ties, Sanyu received a teaching job offer from Taiwan's Ministry of Education. Together with this timely offer was a remittance that was more than enough for Sanyu to ship a collection of works and himself to Taiwan. However, only the paintings, a batch of forty-two splendid works, arrived Taiwan in 1964, where a government-organized exhibition was waiting. Given the artist's unsavory absence, the paintings were passed to the hands of the Museum. The exhibition was never realized until 1977.
What happened to Sanyu?
A widely-circulated version of the story goes like this: the gift money prompted Sanyu an idea to tour Egypt before moving to Taiwan. However, his Republic of China passport, which many believe was the only passport he ever possessed, was denied a visa by the Egyptian Consulate in Paris, because Egypt had chosen Beijing over Taipei in 1955 in the duo's diplomatic rivalry and, even worse, France had followed suit in January 1964. Sanyu's solution was such that he applied for a PRC passport from the newly set up PRC Consulate in Paris at the cost of "depositing" his ROC passport, based on a terribly wrong belief that he could retrieve the latter by returning the former upon returning to Paris from Egypt. When Sanyu finished his Egypt trip and realized Taiwan's offer was Lady Luck's last kiss on his forehead, he had lost his money and his magnum opuses, and probably also his ROC citizenship and his Taipei friends. In the mid-1960s when Taipei still fervently defended its representation of China, a blunder like this could only be deemed as an act of defection. Sanyu became an involuntary émigré, if not an untouchable outcast, which partly explains why we know so little about whether he and Taipei ever discussed the fate of his dislocated paintings. He died within two years, alone, intestate, and languished in obscurity. Sanyu never stepped on Chinese soil after 1938.
The Lawsuit and the Court Fee Rules
However, the tortured artist might have heirs in Mainland China. As the Cross-Taiwan Strait relations thawed after the Cold War and came to a peaceful plateau after the Beijing Olympic Games, the existence of the Taiwan museum's Sanyu collection and the huge interests involved came to the attention of his clan in China's hinterland. In 2017, an old man from Sichuan asserting to be Sanyu's nephew and acting in the interests of all heirs filed a civil lawsuit with Taipei District Court against the Museum. Of course, the nephew's ultimate goal is to reclaim the entire forty-two paintings, but to reclaim them all in one bite is unrealistic. Putting aside the weaknesses in his claim, the nephew needs to address the court fee bar before anything else.
Per Taiwan's Code of Civil Procedures, when starting a suit, a plaintiff making a property law-based claim is obligated to pay the first-instance court fee, which is calculated with a regressive rate in proportion of the value of the filed claim (VFC). An appellant, on the other hand, is required to pay the second/third-instance court fee, which is one and half times the amount of the first-instance court fee. Failure to pay the court fee results in instant dismissal of the lawsuit or appeal.
For instance, if the VFC is NT$1 million, a plaintiff needs to prepay the court the sum of NT$10,900. But when the VFC reaches NT$10 billion, as is the estimated market value of the forty-two Sanyu paintings, the court fee due will not be increased by a factor of 1,000; instead, it will just be NT$67,222,000, which of course is still a daunting amount. To address this difficulty, the nephew litigated just one painting in this lawsuit (the target painting being this); that is, making it a test suit. Once he wins in the first instance, the victory will help raise fund to launch a second suit for the other forty-one paintings—if the second-instance court does not allow him to expand his current claim to cover them all. Another part of his plan is, of course, upon a final win, together with the trophy painting(s), he will be awarded an extra claim to recover from the Museum all court fees he has paid through all instances.
While a lawsuit for just one Sanyu is still too financially risky, the Code of Civil Procedures offers a "litigation aid" program which allows deferral of court fee payment upon a showing that the paying party "lacks the financial means" to make the payment and yet "does not evidently lacks the prospect to prevail" (Article 107). The first part of the showing can be replaced by a third party's guarantee, namely, "a promissory note ... provided by a person who owns assets within the jurisdictional boundaries of the court" (Article 109). The nephew is fortunate enough to have obtained such a guarantee from two Taiwan Legislators .
A Claim for Declaratory Judgment
So, the court fee bar issue in this lawsuit converges with the question on the merits of the nephew's claim: how much unlikely is he going to win? After four years and seven court decisions, one of them being issued by the Supreme Court, the nephew finally convinced the courts in January 2021 that his case is not evidently hopeless, thanks to a practical move that his lawyer made during the proceedings. That is, the lawyer added to this suit a back-up claim, a claim for declaratory judgment (DJ): if the court believes the Museum has grounds to refuse to return the Sanyu painting(s), the court is then asked to determine whether the heirs have a collective title to this heritage. The Taiwan High Court agreed that a DJ claim like this could save this lawsuit from entirely falling prey to the Museum's statutory of limitation defense against a borrower's/depositary's return claim. Chang v. National Museum of History, 109 Sheng-Geng (1) 4, Taiwan High Court (January 27, 2021). The nephew finally won a chance to have a hearing and a trial on merits.
Other defenses known to have been raised by the Museum include one based on the Act Governing Relations between the People of the Taiwan Area and the Mainland Area. This Act sets a NT$2 million per person cap on the amount of property a PRC citizen is allowed to receive through inheriting an estate in Taiwan if he/she is not the deceased's surviving spouse. The DJ claim seems to have overcome this hurdle as well at the court fee bar level. As can be imagined, due to the per person cap, even if the nephew wins on a DJ claim, to get hands on just one Sanyu painting he will need to make an army of at least 100 legitimate co-heirs, which is highly unlikely. However, a win on the DJ claim might at least give the heirs a standing to go on to claim, below the per capita ceiling, a share of the proceeds the Museum had harvested from the Sanyu Collection before August 22, 2016, the expiry date of copyrights (morality rights not included) in Sanyu's works under Taiwan's Copyright Law, and even a share of the Museum's tickets revenue from a Sanyu exhibition held after that date, like the latest one that enthralled Taipei in the spring of 2017.
Interestingly, whether this per person cap rule applies here is not without doubt. It may be the case that this tersely worded rule applies only to an estate of a Taiwan citizen. But what was Sanyu when he died? Was he a non-Taiwan citizen because he unwittingly lost his ROC passport for a PRC passport? Or was he still a Taiwan citizen even though his only tie with Taiwan was the 1964 Collection itself? And how about his short-lived marriage with a French woman in the 1930s—did it accord him a French citizenship that survived the divorce? The "identity crisis" of Sanyu is as disturbing to lawyers as his unconventional art style is challenging to art critics.
Most art lovers, including me, agree that their love for Sanyu and his works would be quite the otherwise should Sanyu have ended up as a retired professor peacefully dying in Taipei. Similarly, I guess our love might not remain the same if the nephew's lawsuit should eventually initiate a new line of provenance of the 1964 Collection, although most Taiwanese have affectionately deemed it as a national treasure. Whatever the outcome of this lingering lawsuit, which has just gone through the first act, the legal perspective has cast a thin yet unnerving shadow over our viewing of Sanyu's oeuvre, to say nothing of its market prospect.
Nevertheless, the legal side is not altogether a dark side. I surmise, although without evidence, that a small part of the 1964 Collection was created using the grant from Taipei and might be commissioned works, and a part of the paintings might be tributes to the head of the Ministry of Education and other helpers. Anyway, one thing seems clear: the 1964 Collection was selected mainly for the viewing of the Chinese diaspora in Taiwan.
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