| China is committed to building a government-led social credit system in face of the problem of credibility anomie brought about by social transformation.According to the current planning documents,the social credit system covers the four major areas of "government integrity,business integrity,social integrity,and judicial credibility".However,its specific items listed in each area overlap with each other and the boundaries are ambiguous.Therefore,in accordance with its provider and its origin,local legislation has taken a different approach to divide social credit system into two sets of subsystems:"market credit" and "public credit".And the former is a traditional market with more mature development,while the latter is a new measure to achieve a certain administrative purpose which the government transfers the credit mechanism to the administrative management and public service fields.This is a brand-new attempt in the process of China public governance informatization and rule of law,and it has pioneering significance.However,this grand plan was biased at the beginning of its implementation and caused huge controversy.According to the "Memorandum on Joint Punishment for Untrustworthiness" signed by various central ministries and commissions and relevant local legislation,"public credit" is temporarily defined as "a kind of state that a public authority such as natural persons,legal persons,or unincorporated organizations in administrative agencies to undertake public management functions complies with legal or agreed obligations in the process of performing its duties and providing public services according to law.Since it contains both“statutory obligations" and“agreed obligations",public credit matters include illegal behaviors and their handling results,uncivilized behaviors,charitable donations,government commendations and rewards,etc.,which are complex and broad,lacking standards.Given that illegal acts are the most important among them,the public credit system has actually become a tool to strengthen the effectiveness of administrative law enforcement when sanctions for dishonesty are taken,which is highly similar to the existing "publication of administrative illegal facts".The confirmation of "untrustworthiness" of public credit is required to be based on effective legal documents,which means most public credit matters being illegal acts that have been evaluated and dealt with by law,and if the“credit evaluation" and "punishment for dishonesty" are given again,which will inevitably trigger repeated evaluations and punishments in violation of with the principle of "non-repeated penalty".The behavior of illegal,law-abiding,moral loss,noble behavior is generally included into legal act under the logic of strengthening law enforcement,it certainly causes for concern whether the public credit system should establish detailed behavior records scoring systems and moral files for citizens.Great convenient will bring to us if the basic connotation of "public credit" and the original intention of the system design are to record the people's law-abiding status and further punish them and directly use the existing "illegal facts disclosure"mechanism and expand it.It does not seem to be beneficial to redesign a new system that is notoriously untrue under the name of“credit".Regarding "breaking the law" as"public dishonesty",using the public credit system as a law enforcement tool and applying it to various scenarios,the root cause is the improperly expanded interpretation of the category of“credit" based on the abstract social contract theory.The reason is that the unclear where "public credit" should be positioned in the entire social credit system,its relationship with "market credit",and unclear scope of"public" matters.Therefore,it is necessary to change the practice of using abstract political philosophy theories as the cornerstone of the actual system,clarify the legal meaning,normative attributes and generation mechanism of“credit" in positive law,and place the system on the basis of positive concepts."Public credit" and "market credit" can be effectively integrated into a social credit system only based on a unified conceptual basis.At the same time,only by clarifying the theoretical boundaries of"public" can "public credit" and "market credit" have their own domains and complement each other.This requires category research at the legal level and improvement of specific systems on the basis of conceptual determination.Following the research path of examination of actual problems,correction of theoretical misunderstandings,return of legal meaning,adjustment of system positioning,determination of scope of application,and improvement of specific mechanisms,the public credit system can become an emerging governance with clear and reasonable positioning,feasible function settings,and legal compliance tool.The full text is divided into five chapters in addition to the introduction and conclusion:The first chapter demonstrates the background of the time when the public credit system was introduced into public governance,and the actual motivation and mechanism principle for it to become a governance tool.On the basis of sorting out the primary legislative materials,this paper introduces the legal relations and the current operation links of the system,and makes a critical examination of the obvious problems in the current design.Introducing the credit system into public governance is an intensified application of the system trust model.In the context of poor social integrity atmosphere driving up the cost of public governance and limited effect of legal accountability mechanism after the event,the public credit system,with the help of information-reputation technology,provides a new management scheme of the whole process and flexible and rigid measures,which highlights the important significance of reforming governance idea,improving governance mode and reducing governance cost.The current public credit legislation has designed four main links of public credit investigation,disclosure,evaluation and reward and punishment which has given birth to "public credit legal relations.”However,due to the expanded interpretation of the concept of“credit" and the implicit purpose of strengthening administrative law enforcement,the current system design has a high degree of generalization of core categories,unclear system function positioning,overlap of credit evaluation and legal evaluation,lack of correlation between evaluation and rewards and punishments,and dishonesty Disciplinary abuse,lack of remedies and other issues.The second chapter deeply analyzes and clarifies the theoretical fallacies that caused this situation through the appearance of the problem.The designer equated"public credit" with a state of law-abiding,which not only put the consideration of strengthening law enforcement in the name of "credit," it also cites the theory of social contract as the theoretical cornerstone.The logical reasoning is that law is a social contract,and breaking the law means violating the“contract" contained in the social contract,which constitutes“distrust".However,the social contract is an product of political philosophy,and its value is to limit public power rather than strengthen law-abiding to limit private power.Borrowing abstract theories to construct specific systems is not a proper approach.The law itself is also the result of a resolution rather than a contract.There is no inevitable connection between the subject's credit status and behavioral compliance.Although law-abiding and trustworthy are consistent in most cases,there are also many conflicting situations.The root cause is that the two do not follow the same judgment standard.The public credit system cannot be regarded as a "moral file." Indiscriminately recording good moral behaviors or government commendation ratings,or widespread unethical and uncivilized behaviors,may face problems such as harming fairness and justice,stimulating credit misjudgment,and pushing up system costs.The third chapter reshapes the basic connotation of "public credit" at the legal level on the basis of clarifying the theoretical fallacies.Legal“credit" is the personality state of the subject's ability and willingness to fulfill the promise,and is one of the target elements of reputation evaluation.Credit originates from legal acts and their expressions of intent,especially multi-party,dual,and paid legal acts;contracts that solidify the expressions of intent in such legal acts are the most basic reference for credit judgment.Whether to act in accordance with the content of the autonomous will constitutes a credit judgment.The legal definition of "public" should be derived from the attribute of things.With the help of the theory of public goods in economics,the "market" in "market credit" is an exclusive and competitive field of production and exchange of private goods,while non-exclusive,non-competitive public goods are supplied,distributed,exchanged and exchanged field of use as the"public field" which represented by public utilities and the distribution of state-owned natural resources."Public credit" is the personality state in which the legal subject performs the agreed obligation and realizes the autonomous commitment in this field.The new definition does not completely subvert the existing definition,but emphasizes the credit generation field of "providing public services" and the credit connotation of "fulfilling agreed obligations".The purpose of recording public credit is to urge social entities to rationally use public resources,prevent "tragedy of the commons",and safeguard public interests.Credit research and judgment are mainly based on contract development.According to this principle,Chapter Four examines the contractual mechanisms in public administration fields such as public utilities,natural resource distribution,social security,etc.,to identify and enumerate the applicable matters of the public credit system.The contract mechanism has been widely used in public administration,especially in the field of payment administration,and has become a flexible way for the government to allocate the right to use state-owned natural resources,allocate the right to participate in the management of public utilities,“outsource" public infrastructure construction,complete social security tasks,and maintain public order.Thus,a large number of administrative agreements and civil contracts with strong public character are generated.The status of the citizens and enterprises that are parties to the two types of contracts in fulfilling the agreed obligations,and the status of the promises of the promisers in the notification and commitment system are the main issues of public credit investigation.Public credit matters can be expanded through legal procedural mechanisms,as long as they meet the standards of the state of fulfillment in the supply,distribution,and utilization of public goods.Regarding the public credit information stipulated by the current legislation,it can also be reviewed and amended based on this standard.On the basis that the basic connotation and scope of application have been clarified,Chapter 5 has made and perfected the specific operating mechanism of the public credit system.Under the guidance of the concept of public service,the system function of public credit should still be mainly positioned as information service,However,necessary incentive measures of rewards and punishments can be added to meet the needs of the governance goals.Credit investigation and credit evaluation agencies should remain neutral.Information collection should meet the standards of necessity,relevance,etc.,and collect personal and corporate information classified.Information processing and utilization should pay attention to the balance of personal privacy,business secrets and public interests.Credit evaluation can be based on effective legal documents and administrative agreement documents,but the current practice of superimposing on legal evaluation must be avoided,and the amendment should be compatible with legal evaluation or supplement the unreachable aspects of legal evaluation.From the perspective of administrative law,the existing punishment for dishonesty is a combination of a variety of administrative acts and factual acts.Due to the use of a large number of administrative penalties,it has been suspected of violating the principle of "non-repeated penalty".Trustworthy incentives also have the problem of repeated rewards.These problems need to be analyzed and resolved at the legal level,and corresponding legal remedies should be set up.Treating "breaking the law" as "breaking trust" and using the public credit system as a tool for strengthening administrative law enforcement is a continuation of management logic.On the contrary,if we uphold the governance concept and make full use of the information-reputation mechanism,the public credit system can play a flexible governance function of wide coverage,weak mandatory,less intrusive,and incentive-oriented,effectively supplementing the deficiencies of public management and assisting which will help modernize,informationalize and rule of law public governance.The public credit system is still essentially an information service system.By using credit information,public power institutions and social entities can improve the level of flexible governance,cooperative governance,and social autonomy.The public credit system needs to be revised under the guidance of governance concepts rather than management logic.Supplemented by necessary credit rewards and punishments,the public credit system aims to improve the level of social integrity in the production,supply,distribution,and utilization of public goods,especially in the utilization of public resources,public utilities,and social security. |
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