Keywords: disciplinary action for dishonesty; Value orientation; Dishonest behavior; Disciplinary measures; Legal liability
Punishment for dishonesty is a disciplinary way to limit and reduce the credit rights and interests of the untrustworthy subject after the state organs examine and confirm the untrustworthy behavior of the credit subject.
At present, the disciplinary standards and unreasonable procedures in the disciplinary mechanism for dishonesty in China also directly or indirectly affect the legitimate rights and interests of the parties [1], but the corresponding legal norms and necessary legal regulations are still vacant [2], and even the disciplinary mechanism for dishonesty faces a major legitimacy crisis because it violates the rule of law principles such as administration according to law, respect and protection of human rights, prohibition of improper association, and the principle of proportionality [3].
The basic problems that need to be solved urgently in China's disciplinary system for dishonesty include: how to determine the legislative value orientation of the disciplinary system for dishonesty, which behaviors of credit subjects belong to dishonesty, how to divide the types and methods of punishment, the relief measures for wrong punishment and how to define the responsibilities. Without in-depth study, it is difficult to fundamentally solve the problem of vague boundaries of disciplinary punishment for dishonesty in China. The national legislature should standardize the disciplinary mechanism of dishonesty at the legal level and build a sound social credit system on the basis of balancing the interests and protecting the rights of all parties.
First, the value orientation and defects of dishonesty punishment
Value orientation is the primary issue of legal system and rules, and the quality of legislative value orientation directly determines the level of legal rules. Under the background of vague legislative value orientation, many credit subjects have chosen the behavior of dishonesty with higher income out of economic rationality [4], which shows that the root of the deterioration of social credit situation lies in the imperfection of credit legal system and rules. Compared with people's weak moral consciousness or low moral level, the value orientation of the legal system is deviated, which may lead to more serious social consequences.
There are three major defects in the value orientation of the disciplinary system for dishonesty in China:
First, the analytical principles and legal classification of dishonesty are not clear; Second, disciplinary measures are not commensurate with dishonesty; Third, the disciplinary power is not strictly restricted.
(A) the classification principle of dishonesty is not clear
The fuzziness of dishonesty is first manifested in the omission of the principle of dishonesty analysis.
According to the logic of economic game theory, the long-term game of market players is enough to restrain the behavior of dishonesty, and it is only necessary to make the cost of dishonesty in the short-term game higher than the income of dishonesty [5]. However, life experience shows that market players in long-term games are prone to more hidden untrustworthy behaviors, and big data "killing" is one of them. In practice, many businesses are used to using "algorithms" and other technical means, and taking advantage of the dominant position of mastering specific information, which makes many consumers unconsciously bear higher commodity consideration or service price. To a certain extent, perhaps because of this, the market value of big data and artificial intelligence will be hundreds of billions or hundreds of billions of yuan.
However, this cheating behavior that violates the price benchmark undoubtedly infringes on the legitimate rights and interests of consumers, and may even undermine the credit transaction and fair order in the market economy. The national legislature should not turn a blind eye to this. The phenomenon of dishonesty is particularly prominent in the civil and commercial fields. The problem of dishonesty represented by power rent-seeking has become a chronic disease in China's securities and futures market, which hinders the integrity supervision and legalization process of the securities and futures market [6]. Therefore, some scholars suggest to build a special commercial credit system, and clarify the content and norms of commercial credit default punishment [1].
It can be seen that no matter the frequency or time of market transactions, dishonesty may occur. The definition of dishonesty and the regulation of dishonesty punishment cannot be limited to short-term games or certain trading activities. Unclear legal classification is the key reason why dishonesty is rashly recognized. It is precisely because of the lack of a clear definition of the types of dishonesty in law that disciplinary organs have the opportunity to selectively identify dishonesty and have the conditions to easily exercise disciplinary power. For example, there are more than 30,000 cases of public refusal to execute judgments and rulings in Henan Province, accounting for 88.2% of the national refusal to execute crimes. The Henan court believes that cracking down on the crime of refusing to execute is the highlight of its work and an important starting point for solving the difficulty of execution [7].
For grass-roots courts with a lot of accumulated cases, dishonesty is more easily identified subjectively and rashly. Taking the delivery of the enforcement notice and the inclusion decision of the people's court as an example, the risk warning received by the person subjected to execution is usually just a sentence of "being included in the list of people subjected to dishonesty", and the invalid delivery rate of legal documents related to dishonesty punishment is also close to 20%[8]. The relevant enforcement notice stipulated in Article 5, Paragraph 1 of the Supreme People's Court's Several Provisions on Publishing the Information of the List of Executed Persons with Bad Faith (Fa Shi [20 1 7] No.7) "shall specify the risk warning about being included in the list of executed persons with bad faith", and "Article 1 Article/kloc"
(b) Dishonesty is not commensurate with disciplinary measures.
The disproportion between dishonesty and disciplinary measures is first manifested in the disproportion between responsibility and punishment.
It is also recognized by scholars that the cost of dishonesty of market players is too low. For example, the punishment for dishonesty is not equal to the cost of dishonesty, the punishment for breach of contract is not enough, and there are no effective measures to punish untrustworthy people [9].
Judging from the available data, there is almost no precedent for managers of the third sector, such as social organizations, to assume any responsibility for breach of trust [10]. But at the same time, some disciplinary measures implemented by the disciplinary organs are not appropriate.
Take the list system of dishonesty as an example. In order to clear up the accumulated cases, many local courts unreasonably exercise disciplinary power, such as publishing the information of the person who has been executed in breach of trust or arbitrarily executing the property of the person who has been executed in breach of trust, regardless of the occasion, untimely and heavy.
For example, either the home address, telephone number, irrelevant property and other unnecessary information of the untrustworthy person will be disclosed to public places such as commercial centers, online websites or internet databases without treatment, or the irrelevant property information will be inquired, and zero action will be taken to set off a holiday storm, and so on [8].
The low cost of dishonesty directly or indirectly leads to improper disciplinary measures.
Theoretical research focuses on the fact that the cost of dishonesty is much lower than the income of dishonesty, and the actual operation will inevitably make the cost of dishonesty much higher than the income of dishonesty.
The root of this dilemma lies in that the cost of dishonesty in China's current society is not simply lower than the income of dishonesty, so we can't blindly demand that the cost of dishonesty, that is, disciplinary measures, be several times or dozens of times higher than the income of dishonesty.
Any contrast that is divorced from the essence of things lacks practical significance. Disciplinary measures for dishonesty are the embodiment of legal responsibility for dishonesty, and the severity of disciplinary measures reflects the cost of dishonesty.
The cost of dishonesty is too high or too low, which is relative and concrete. Whether the cost of dishonesty is too low or much higher than the income of dishonesty is actually a lack of clear and fixed measurement standards.
Even if some scholars suggest that the externality of dishonesty can be internalized, which makes the cost of dishonesty higher than the income of dishonesty and social operation cost [1 1], the specific trend of externality and social operation cost is actually quite vague.
Adapting responsibility to punishment is the only way to solve the mismatch between dishonesty and disciplinary measures.
Only by following the principle of "punish when it is punished" can we properly exercise the right of punishment while punishing the faithless. For the subject of dishonesty, only bear the corresponding responsibility of dishonesty and pay the corresponding cost of dishonesty. For the disciplinary organs exercising disciplinary power, corresponding disciplinary measures should also be selected and applied according to the severity of market participants' dishonesty. Taking the blacklist system of untrustworthy social organizations as an example, we should at least distinguish between the list of abnormal activities and the list of serious violations of law and dishonesty, and clarify the punishment reasons and specific reasons for blacklisting. For example, from the public information of the civil affairs department, different disciplinary reasons are generally taken according to the degree of dishonesty of social organizations, and corresponding disciplinary decisions are made accordingly. These can only include warnings, confiscation of illegal income, suspension of activities for one month to six months, and cancellation of registration.
However, the disciplinary organ still needs to explain the reasons and specific reasons on the specific page of its website, so as to give consideration to the public's right to know and the credit rights of credit subjects. Legislators, law enforcement agencies and judicial organs should make joint efforts to create a social atmosphere of "emphasizing dishonesty and punishing it, ignoring dishonesty and not punishing it", safeguard the fair principle of market economy and ensure the social credit order system.
(3) The power of the disciplinary subject is not strictly restricted.
The disciplinary right of the disciplinary subject has not been strictly restricted, which is first manifested in the generalization of punishment.
Many local governments rely on blacklists and other disciplinary mechanisms to handle administrative affairs, which can easily lead to abuse of power by disciplinary departments or rent-seeking behavior by interest groups. For example, some social organizations were blacklisted because their service quality did not reach the promised level, and they did not attend the working meetings organized by the government as required by the civil affairs department. Some authorities issuing abnormal lists did not perform the notification procedures and lacked a reasonable blacklist revocation mechanism [10].
At present, many places are formulating disciplinary norms for dishonesty. However, due to the lack of a unified concept, principles and scope, the identification standards of dishonesty and disciplinary measures vary from place to place, which may easily lead to the application of different disciplinary measures to the same dishonesty, or the completely opposite conclusion of the same behavior in different places.
In this realistic background, even if the local credit management departments can enjoy the information of dishonesty in time, it is difficult to achieve the actual balance of the construction of China's social credit system.
Local "leapfrog legislation" is an important reason for the generalization of punishment.
The effectiveness level of disciplinary norms for dishonesty in China focuses on departmental rules and local regulations. According to the statistics of the author's team, as early as the end of 20 18, the number of credit legislation at the level of local laws and regulations in China has reached 69. Among them, there are 37 local laws and regulations on enterprise credit, 5 local laws and regulations on personal credit and 27 local laws and regulations on comprehensive management of public information. However, many local normative documents lack specific norms on the collection, inquiry and protection of credit information of natural persons or legal persons, and the division of rights, obligations and responsibilities of credit subjects is very unclear. Not only that, many places are still formulating local government regulations or local normative documents, and creating disciplinary powers that restrict personal freedom or freedom of movement.
Among them, a considerable number of norms are actually based on the management requirements of government departments, which will inevitably lead to the fact that the lower law actually replaces the upper law in the absence of the upper law and falls into a non-standard dilemma. Because whether it is a credit downgrade similar to reprimand or a qualified qualification similar to qualification punishment, it is related to the great adjustment of the rights and obligations of the relative person. In addition, restricting the qualification of the counterpart is a severe punishment measure, which should be directly stipulated or explicitly authorized by law.
In practice, most disciplinary measures actually have the legal effect of directly restricting personal freedom or freedom of movement, which belongs to the "punishment for restricting personal freedom" in the "compulsory measures and punishments for restricting personal freedom" clearly stipulated in the fifth paragraph of Article 8 of the Legislative Law.
No matter local regulations, local government regulations or local working documents, they should be clearly stipulated by law without legal authorization. From this point of view, the specific rules of local punishment for dishonesty, which define the rights, obligations and responsibilities of untrustworthy people, are a breakthrough in the legislative authority of the National People's Congress and its Standing Committee and belong to "leapfrog legislation". Local "leapfrog legislation" is an important reason for the generalization of local punishment, which is a serious defect at the normative level and must be corrected.
Decentralized departmental legislation may lead to the abuse of joint disciplinary power.
At present, the scope and implementation of joint punishment in China are unprecedented. Some scholars even select administrative acts separately, and define "administrative joint disciplinary action against dishonesty" by "multiple administrative acts", but this theoretical construction and system design are basically limited to the mode and function of prevention in advance [12]. However, since 20 16, the Supreme People's Court has signed joint disciplinary documents with more than 60 departments including the National Development and Reform Commission, and the disciplinary measures include 37 categories 1 150 specific projects, which are obviously not limited to the administrative field. The Supreme People's Court's "Provisions on the Dishonest List" has also accelerated the construction of social credit information system, promoted the unification of civil execution information, facilitated the connection between civil execution information and other credit information, and promoted the integration of civil execution information with the national credit information system [13]. However, in practice, the management assessment and accountability of the linkage mechanism are still absent [14], and the conditions for all departments to enjoy the credit information network and implement joint punishment still need legislative norms. The reason is that the joint disciplinary department of dishonesty in China enjoys less information on credit punishment and more basic information on credit subjects. Except for the people's court who finds the person who has been executed in breach of trust, other joint disciplinary targets and identification standards are still not clear enough, which may easily lead to difficulties and confusion in implementation in various places [15].
Due to the lack of effective institutional arrangements for credit supervision of social organizations in China, it is difficult to jointly punish social organizations that have broken their promises and achieve seamless coordination between judicial organs and administrative supervision departments [16]. In this way, the punishment of dishonesty is prone to the dilemma of lack of overall thinking and unified legislation, so directly strengthening joint punishment may also lead to the abuse of disciplinary power. As far as the judicial interpretation related to the punishment of dishonesty is concerned, the Supreme People's Court should submit it to the National People's Congress or its Standing Committee for authorization and publication on the basis of perfecting and limiting the interpretation content. This is because most disciplinary measures are compulsory sanctions that restrict personal freedom or freedom of movement and should be confirmed by law or authorization.
Second, the punishment of dishonesty in dishonesty
The disciplinary subject is the state organ that has the right to examine the credit subject, identify the dishonesty and implement disciplinary measures. The disciplinary object is the natural person or legal person who has to bear the disciplinary responsibility because of the dishonesty. Disciplinary subject and disciplinary object are the key elements to identify dishonesty, which plays an important role in accurately understanding and judging dishonesty.
(A) disciplinary punishment of dishonesty
The disciplinary subject of dishonesty should include state administrative organs and judicial organs.
Generally speaking, due to the daily, long-term and mandatory characteristics of government supervision departments, the competent government departments are given the right to punish dishonesty as the disciplinary subject.