atlas

Credit tools such as "red and black list" of honesty, credit score and joint rewards and punishments are playing more and more roles in our lives, and the prospect that everyone will have credit files has gradually become a reality. But at the same time, we know little about social credit.

As a product of the market economy, the credit system was originally mainly used in the financial field to measure whether individuals, enterprises and organizations can keep their promises and repay in time, which is the most familiar "credit investigation". China's credit information system started from the establishment of the central bank's credit information center in 2006, and it has gone through 14 years.

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 relations. In the construction of social credit system in China, the extension and connotation of "credit" are constantly expanding, which has exceeded the scope of international finance.

Zhang Xin, executive director of university of international business and economics Digital Economy and Legal Innovation Research Center, believes that although social credit contains the word "credit", it is more important to take the word "society" as the prefix, which shows that credit is no longer limited to commercial and financial fields, but gradually extends to the field of social governance. With the rapid development of modernization and urbanization in China, the social structure has changed from "acquaintance society" to "stranger society", but the credit governance structure has lagged behind for a long time. The construction of social credit system is an institutional response to this realistic background.

The report of the 18th National Congress of the Communist Party of China defines the social credit system as four parts: government integrity, business integrity, social integrity and judicial public trust. In 20 14, the Outline of Social Credit System Construction Planning (20 14-2020) was released, and a series of credit reward and punishment measures were introduced on this basis: in March of 20 14, the Central Civilization Office, the Supreme People's Court and other eight ministries and commissions jointly signed the Memorandum of Cooperation on Building Honesty and Punishment; 2065438+September 2006, the Central Office and the State Council issued the Opinions on Accelerating the Construction of Credit Supervision, Early Warning and Punishment Mechanism for People with Bad Faith, demanding the establishment and improvement of inter-departmental collaborative supervision and joint punishment mechanism, and the construction of a credit supervision, early warning and punishment system of "one place is broken and one place is limited" ...

With the exploration and promotion in various places, the construction of social credit system has continuously achieved fruitful results, and the construction of a credible society has been accelerated. However, the credit punishment measures introduced in some places have shown a trend of increasing the number of layers, which has caused many controversies.

Credit punishment should be kept moderate.

situation

Xiaohua Dad (pseudonym), a legal representative of an enterprise in Suzhou High-tech Zone, invested and set up an enterprise in Suzhou, and accumulated taxes, at least 30 points can be obtained. According to the relevant policies of Suzhou migrant workers' children's integral admission, Xiaohua can obtain admission qualification.

On March 20 16, when Xiaohua's father submitted the materials to the street convenience service center, he was told that because his company failed to submit the annual report on time, it was listed in the "business exception list" by the industrial and commercial department and could not get corresponding extra points. Finally, Xiaohua's father made up the annual report and got his son's admission quota.

The above case is not an isolated case. The relevant credit punishment measures introduced in many places have widely applied the scope of judgment of dishonesty to traffic violations, letters and visits, food and medicine, ecological environment and other fields. Credit disciplinary measures range from daily supervision and market access to investment and financing, employment, assessment and consumption, involving credibility, qualifications and even personal freedom.

For example, from 2065438 to March 2009, Hangzhou Metro stipulated that evasion tickets should be included in personal credit files three times. In the same year, the "fasting order" of Beijing subway came into effect. In addition to babies and patients, eating in train carriages will be recorded in personal bad credit information. Some local governments also include failure to fulfill their maintenance obligations and frequent job-hopping into personal credit information.

In Zhang Xin's view, the design logic of China's social credit system is to build a comprehensive credit governance system that spans the fields of rule of law and rule of virtue.

"Classifying illegal acts as untrustworthy acts is mainly to strengthen the deterrence of law enforcement. For example, some enterprises have violated the environmental protection law and received administrative punishment, and may continue to create pollution after paying the fine. However, if it is included in the list of dishonesty, it will lead to the inability of enterprises to borrow from banks, thus avoiding sewage discharge. " Xu Shen, a professor at Peking University Law School, said that there are many illegal phenomena in some areas, and the law enforcement cost is high. Through the joint punishment of various departments, it can really improve the effect of law enforcement and reduce the occurrence of illegal phenomena to a certain extent.

"But in order to improve the efficiency of law enforcement, we can't ignore the bad consequences of generalized dishonesty and dishonesty punishment." Shen Hui pointed out that from the above cases, we can also see that some local policies not only equate illegality with dishonesty, but also link public morality with it. However, under the premise of administration according to law, some current disciplinary measures for dishonesty have deviated from the channel of rule of law. "This is very dangerous."

Xu Shen believes that we should follow the modesty principle of credit punishment, and legally control the punishment for dishonesty, especially the joint punishment, from the aspects of legality, relevance, proportionality and procedure. As a slogan, "one place is broken, and everywhere is limited" is very vivid, but it cannot be used as jurisprudence. Otherwise, the legitimate rights and interests will not be fully protected. "

Wang Qinghua, director of the Digital Economy and Law Research Center of Beijing Normal University Law School, noticed that in practice, some normative documents defined individual's illegal behavior as dishonesty, and listed the illegal behavior as the object of dishonesty punishment, which brought double or even multiple punishments to the parties' behavior, which easily conflicted with the principle of no more punishment for one thing in administrative law, and the consequences of punishment often restricted citizens' basic rights.

Mu Changchun, director of the digital currency Research Institute of the People's Bank of China, also believed in an interview that credit is not a "super policeman" or a moral model; The credit system directly affects public interests such as privacy protection and credit fairness, and information should be collected, stored and processed on the principle of "minimum and necessity".

On the other hand, many cities have introduced "points" with their own characteristics.

According to incomplete statistics, about 20 cities in China have launched citizen credit evaluation products, such as Osmanthus fragrans in Suzhou, Xichu in Suqian, Qianjiang in Hangzhou, Haibei in Weihai and Egret in Xiamen.

Under this scoring mechanism, people with high scores can get many conveniences such as preferential policies, education, employment and social security. It is easy to be questioned that dividing people into "three, six and nine grades" according to credit scores will limit the public services that should be enjoyed equally. Many experts warned that this could easily become a new way of rent-seeking. How to design the classification, how to be fair, and how to follow the procedures strictly should be specified in detail to minimize the free operation space.

Credit should not be a "basket", and the application boundary needs to be demarcated urgently.

situation

20 13 in may, the general office of Jiangsu provincial government issued the "disciplinary measures for natural persons' dishonesty in Jiangsu province (trial)". Article 20 of the measures stipulates that serious untrustworthy actors are prohibited from applying for civil servants within three years, and Article 23 stipulates that serious untrustworthy actors are prohibited from applying for civil servants.

Article 24 of the Civil Service Law at the time of the promulgation of this method stipulates that persons who are not allowed to be employed as civil servants shall not be employed as civil servants because of criminal punishment, dismissal from public office and other circumstances stipulated by law. It can be seen that the above measures go beyond the situation stipulated in the Civil Service Law and violate the principle of legal reservation of civil service employment restrictions.

"Credit is a basket in which everything is put." How to define "credit" and delimit the applicable boundary is an urgent problem to be solved.

According to the legislation law, every city divided into districts has the power to formulate local laws and regulations, which leads to the problems of low level of credit legislation and uneven quality of legislation. Scholars generally believe that the important reason lies in the lack of special superior law to unify and standardize the construction of 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 Public Credit, Punishing Dishonesty and Repairing Credit, and Building a Long-term Mechanism for Credit Construction (Draft for Comment), stipulating that no department (unit) may arbitrarily increase or expand the areas where the list of serious dishonesty is established without the basis of laws and regulations or the State Council's decisions and orders. As an administrative normative document, due to its low legal effect, the effect after implementation needs to be tested.

2065438+March 2009, the National People's Congress Standing Committee (NPCSC)'s work report pointed out that social credit legislation projects belong to the third category, that is, the legislative conditions are not yet fully met, and further research and demonstration are needed.

After more than ten years of exploration, why are the legislative conditions still "not fully available"?

Shenhui believes that it is difficult to standardize the social credit system. For the punishment of dishonesty that has been implemented, it is necessary to clarify which ones need to be included in the social credit system and which ones do not. Secondly, there is no understanding of the boundaries of the social credit system.

"Social credit practice varies from place to place, and it is difficult to formulate a comprehensive law involving integration, standardization and personalized balance." Zhang Xin further explained.

"Even if the time for top-level legislation is not yet ripe, we can't just wait." Shenhui believes that the current social credit system norms should be cleaned up in accordance with the concept that credit punishment should have a legal basis, prohibit improper association and ensure excessive punishment. At the same time, in the revision of the current social credit-related laws and regulations, we need to pay attention to how to standardize the punishment of dishonesty and the incentive of trustworthiness.

The revised draft of the Administrative Punishment Law provides the definition of administrative punishment for the first time. "Strictly speaking, the punishment of dishonesty can be included in the scope of administrative punishment and regulated." Xu Shen said: "Under the current policy orientation of vigorously promoting the construction of social credit system, we should be more cautious."

Establish effective legal relief for credit subjects

situation

In a loan case, Wuhan Optics Valley Laser Company failed to fulfill its obligations stipulated in the effective judgment on schedule, and the court of first instance issued a consumption restriction order to the company. Chen Mou, the legal representative of Wuhan Optics Valley Laser Company, was restricted from engaging in high-consumption activities.

Chen Mou refused to accept, and applied to Wuhan Intermediate People's Court for reconsideration, claiming that he applied to join Wuhan Optics Valley Laser Company after graduating from university, and became the legal representative and nominal shareholder of the company on August 29th, 20 16. In fact, he is neither a shareholder nor an executive or person in charge of the company. It is not his subjective will to be the legal representative and nominal shareholder of the company.

At present, the implementation of the superior law is not in place, and the quality of legislation varies from place to place. Wang Qinghua believes that social credit legislation should establish a mechanism for resolving objections and repairing dishonesty, and endow credit subjects with the rights of error correction, defect compensation and judicial relief.

During the meeting of the National People's Congress (NPC) on 20 19, Jiangsu, Guangdong and other delegations also submitted proposals on speeding up credit legislation and promoting the construction of good faith, proposing that the credit rights of credit subjects should be fully guaranteed, and credit subjects should be given the right to know information, the right to disagree with information, the right to repair information, the right to forget information and the right to appeal for reconsideration.

At present, the guidance issued by some ministries and some local laws and regulations stipulate the legal relief channels for the parties. For example, the National Development and Reform Commission's Notice on Appropriately Restricting Certain Serious Untrustworthy Persons from Taking Trains and Civil Aircraft within a Certain Period clearly states that if a legal person, citizen or other organization has any objection to being included in the list of persons who have lost their trust, it shall submit a written application for correction to the executive court, which shall conduct an examination within 15 days from the date of receiving the written application for correction, and if the reasons are justified, it shall make corrections within 3 working days.

In addition to error correction, another situation is credit repair, that is, after the parties are included in the untrustworthy list, they can be removed from the list according to regulations after reaching legal compliance for a period of time.

These are all legal remedies that are beneficial to the parties. It is worth noting that there are no successful cases of entering the public eye because they think they have been wrongly included in the list of dishonesty.

"The above cases are more representative. In many similar cases, it can be seen that the parties who have objections to the measures to restrict consumption have raised objections to execution in the proceedings. However, the court held that the act of imposing credit punishment on the person subjected to execution does not fall within the scope of the people's court's execution of objection cases, so the objection application to the parties is basically handled by rejecting the request. " Zhang Xin said.