“If you break your trust in one place, you will be restricted everywhere”——Where is the boundary of credit punishment?

Source: Guangming Daily

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Credit tools such as integrity “red and black lists”, credit scores, joint rewards and punishments have increasingly appeared in our lives As a result, the vision of everyone having a credit file will gradually become a reality. But at the same time, we know very little about social credit.

As a product of the market economy, the credit system was initially mainly used in the financial field to measure whether individuals, companies, and organizations can abide by their commitments and repay their loans in a timely manner, which is the "credit report" we are most familiar with. my country's credit reporting system started with the establishment of the central bank's credit reporting center in 2006 and has gone through a 14-year journey.

But the significance of credit is not limited to the financial field. The credit system provides an important reference for dealing with complex and risky social relationships. In the construction of my country's social credit system, the extension and connotation of "credit" are expanding, beyond the international financial category.

Zhang Xin, executive director of the Digital Economy and Legal Innovation Research Center of the University of International Business and Economics, believes that although social credit contains the word "credit", the more important thing is its prefix "social" - —This shows that credit is no longer limited to the commercial and financial fields, but has gradually expanded to the field of social governance. In the context of the rapid development of my country's modernization and urbanization process, the social structure has changed from a "society of acquaintances" to a "society of strangers". However, the credit governance structure has lagged behind for a long time. The construction of the social credit system is exactly in response to this realistic background. institutional response.

The report of the 18th National Congress of the Communist Party of China clarified the social credit system into four parts: government integrity, business integrity, social integrity and judicial credibility. In 2014, the "Planning Outline for the Construction of the Social Credit System (2014-2020)" was released, and a series of credit reward and punishment measures were launched on this basis: In March 2014, eight ministries and commissions including the Central Civilization Office and the Supreme People's Court jointly signed the "Construction of a Social Credit System" "Memorandum of Cooperation on Integrity and Punishing Dishonesty"; in September 2016, the General Office of the CPC Central Committee and the General Office of the State Council issued the "Opinions on Accelerating the Construction of Credit Supervision, Warning and Punishment Mechanisms for Dishonest Persons", requiring the establishment and improvement of cross-department coordinated supervision and joint punishment Mechanism construction to build a credit supervision, warning and punishment system that "breaks trust in one place and is restricted everywhere"...

With the promotion of exploration and promotion in various places, the construction of social credit system continues to bear fruit, and the construction of a trustworthy society is accelerated. . However, the credit disciplinary measures introduced in some places have shown a trend of increasing levels, causing a lot of controversy.

Credit punishment should be modest

Cases

Xiaohua’s father (pseudonym), the legal representative of a company in Suzhou High-tech Zone, was found guilty of investing in and establishing a business in Suzhou City Enterprises and accumulated taxes paid can get at least 30 bonus points. In accordance with Suzhou's policy on points-based enrollment for children of migrant populations, Xiaohua can obtain admission qualifications.

In March 2016, when Xiaohua’s father went to the street convenience service center to submit materials, he was told that because his company failed to submit its annual report on time, it was included in the "List of Business Abnormalities" by the industrial and commercial department and could not be obtained. Bonus points accordingly. In the end, Xiaohua's father obtained his son's enrollment quota after filing a supplementary annual report.

The above cases are not isolated. Relevant credit disciplinary measures introduced in many places have widely applied the scope of judgment of breach of trust to traffic violations, petitions, food and drugs, ecological environment and other fields. Credit disciplinary measures range from daily supervision and market access to investment and financing, employment, assessment, and consumption, involving reputation, qualifications, and even personal freedom.

For example, in March 2019, Hangzhou Metro stipulated that fare evasion three times should be included in personal credit information files. In the same year, the "fasting order" on the Beijing subway officially came into effect. Except for infants and patients, eating in train carriages will be recorded as bad personal credit information. Some local governments also include failure to fulfill support obligations and frequent job-hopping into personal credit reports.

In Zhang Xin’s view, the design logic of my country’s social credit system is to build a comprehensive credit governance system that spans the fields of rule of law and rule of morality.

“The main purpose of classifying violations of the law as untrustworthy behavior is to strengthen the deterrence of law enforcement. For example, some companies that have violated environmental protection laws and been subject to administrative penalties may continue to manufacture products after paying the fine. Pollution. But if it is included in the list of untrustworthy companies, it will prevent companies from getting loans from banks and avoid pollutants. " Shen Kui, a professor at Peking University Law School, said that there are many violations in some fields and the cost of law enforcement is high. Through joint punishment by various departments, it is indeed possible to improve the effect of law enforcement and reduce the occurrence of illegal phenomena to a certain extent.

"But we cannot ignore the adverse consequences of generalized breach of trust and punishment for breach of trust in order to improve the efficiency of law enforcement." Shen Kui pointed out that it can also be seen from the cases mentioned above that some local policies Not only does it equate illegality with breach of trust, but it also links public ethics with it. However, under the premise of administration in accordance with the law, some of the current punishment measures for breach of trust have deviated from the path of the rule of law, "which is very dangerous."

Shen Kui believes that the principle of modesty in credit punishment should be followed, and legal control of breach of trust punishment, especially joint punishment, should be carried out from the legal, relevant, proportional and procedural aspects. "Broken trust, restricted everywhere' is a very vivid slogan, but it cannot be used as a legal principle, otherwise it will lead to insufficient protection of legitimate rights and interests."

Wang Qinghua, director of the Digital Economy and Legal Research Center of Beijing Normal University Law School, noticed that in practice, some normative documents define personal illegal acts as breach of trust and list illegal acts as targets of punishment for breach of trust, leading to Double or even multiple punishments for the behavior of the parties may easily conflict with the principle of non-punishment in administrative law, and the consequences of punishment will often limit the basic rights of citizens.

Mu Changchun, director of the Digital Currency Research Institute of the People's Bank of China, also believed in a previous interview that credit is not a "super police", nor is it for selecting moral models; the credit system directly affects the privacy protection of the public, For public interests such as credit fairness, information collection, storage and processing should be based on the "minimum and necessary" principle.

In conjunction with punishment for breach of trust, many cities have launched “credit points” with their own characteristics.

According to incomplete statistics, about 20 cities across the country have launched citizen credit evaluation products, such as Suzhou's "Guihua Fen", Suqian's "Xichu Fen", and Hangzhou's "Qianjiang Fen" Fen", Weihai's "Haibei Fen", Xiamen's "Egret Fen", etc.

Under this type of scoring mechanism, people with high scores can obtain various conveniences such as policy preferences, education, employment, and social security. This can easily be questioned as classifying people into "three, six or nine" categories based on their credit scores, which will restrict the public services that should be equally enjoyed. Many experts warned that this could easily become a new form of rent-seeking. How to design the scoring, how to achieve fairness, and how to strictly follow the procedures should be specified in detail to minimize the room for free operation.

Credit should not be a “basket”, and the application boundaries need to be delineated urgently

Cases

In May 2013, the General Office of the Jiangsu Provincial Government issued the "Jiangsu Provincial Natural Persons Punishment Measures for Breaking Trust (Trial)". Article 20 of the Measures prohibits those who have committed serious breach of trust from applying for the civil service examination within three years, and Article 23 prohibits those who have committed serious breach of trust from applying for the civil service examination.

Article 24 of the Civil Servant Law at the time of the promulgation of this measure stipulates that persons who are not allowed to be employed as civil servants are those who have been criminally punished for crimes, have been dismissed from public service, and other persons who are prohibited from being employed as civil servants under legal provisions. situation. It can be seen that the above method goes beyond the circumstances stipulated in the Civil Service Law and violates the principle of legal reservation of restrictions on civil servant recruitment.

"Credit is a basket, everything goes into it." Defining "credit" and delineating application boundaries are currently urgent problems that need to be solved.

According to the Legislation Law, all cities divided into districts have the power to formulate local regulations. This has led to the problem of low-level credit legislation and uneven legislative quality. Scholars generally believe that an important reason lies in the lack of specialized upper-level laws to uniformly regulate the construction of the credit system.

Recently, the National Development and Reform Commission and the People's Bank of China jointly issued the "Guiding Opinions on Further Standardizing the Scope of Credit Inclusion of Public Accountants, Penalties for Untrustworthiness and Credit Repair to Build a Long-term Mechanism for Integrity Building (Draft for Comments)", which stipulates Without the basis of laws, regulations or decisions and orders of the State Council, no department (unit) may increase or expand the areas of serious dishonesty lists without authorization. As an administrative normative document, due to its low legal validity, its effect after implementation still needs to be tested.

In March 2019, the National People’s Congress Standing Committee’s work report pointed out that legislative projects on social credit belong to the third category, that is, the legislative conditions are not yet fully met and require continued research and demonstration.

After more than ten years of exploration, why are the legislative conditions still “not fully met”?

Shen Kui believes that it is difficult to regulate the social credit system. Regarding the penalties for breach of trust that have been implemented, it is necessary to identify one by one which ones need to be included in the social credit system for regulation and which ones are not needed. Secondly, there is currently no clear understanding of where the boundaries of the social credit system are.

"Social credit practices vary from place to place, which makes it difficult to formulate a comprehensive law involving the balance of integration, standardization and personalization." Zhang Xin further explained.

"Even if the time for top-level legislation is not yet mature, we cannot just wait." Shen Kui believes that credit punishment should have a legal basis, prohibit improper relationships, and ensure that punishments are commensurate. Carry out a clean-up of the current social credit system norms. At the same time, in the revision of current laws and regulations related to social credit, attention needs to be paid to how to standardize punishment for breach of trust and incentives for trustworthiness.

The revised draft of the Administrative Penalty Law stipulates the definition of administrative penalties for the first time. "Strictly speaking, punishment for breach of trust can be included in the scope of administrative penalties and regulated." Shen Kui said: "Under the current policy guidance of vigorously promoting the construction of a social credit system, a cautious attitude should be adopted."

Establishing efficient legal relief channels for credit entities

Cases

In a loan case, Wuhan Optics Valley Laser Company failed to perform its obligations specified in the effective judgment on time, and the court of first instance A consumption restriction order was issued against the company. Chen is the legal representative of Wuhan Optics Valley Laser Company and is restricted from high-consumption activities.

Chen was dissatisfied and applied for reconsideration to the Wuhan Intermediate People’s Court, saying that after graduating from university, he applied for a job at Wuhan Optics Valley Laser Company and became the legal representative of the company on August 29, 2016 and became the name of the company. shareholder. In fact, he is neither a shareholder of the company nor an executive or person in charge of the company, and it is not his subjective intention to serve as the legal representative and nominal shareholder of the company.

Under the current situation where higher-level laws have not yet been put in place and the quality of legislation in various places is uneven, Wang Qinghua believes that social credit legislation should establish mechanisms for resolving objections and repairing breaches of trust, giving credit subjects the ability to correct errors and make up for defects. , judicial relief and other rights.

During the National Two Sessions in 2019, delegations from Jiangsu and Guangdong also submitted proposals on accelerating credit legislation and promoting integrity construction, proposing that the credit rights and interests of credit subjects should be fully protected and credit subjects should be clearly given the right to know information. , the right to object to information, the right to repair information, the right to forget information and the right to reconsider litigation.

At present, the guidance issued by some ministries and commissions and some local regulations stipulate the legal relief channels for parties.

For example, the "Notice on the Implementation of Appropriate Restrictions on Certain Severely Untrustworthy Persons from Taking Trains and Civil Aircrafts within a Certain Period of Time" issued by the National Development and Reform Commission clearly states that if legal persons, citizens or other organizations have objections to being included in the list of untrustworthy persons subject to enforcement, A written application for correction shall be submitted to the enforcement court, which shall review it within fifteen days from the date of receipt of the written application for correction. If the reasons are established, correction shall be made within three working days.

In addition to error correction, another situation is credit repair, that is, after the party is included in the list of dishonest people, it has achieved legal compliance within a period of time, and can be removed from the list in accordance with regulations.

These are all legal remedies that are beneficial to the parties concerned. It is worth noting that there have been no successful cases in the public eye among those who filed lawsuits because they believed that they were mistakenly included in the list of dishonest people.

"The above cases are relatively representative. In many similar cases, it can be seen that the parties who objected to the measures taken to restrict consumption raised objections to execution in the lawsuit. However, the court held that The conduct of credit punishment by the person subject to execution does not fall within the scope of the people's court's enforcement objection cases, so the parties' objection applications are basically handled as rejection requests," Zhang Xin said.