The Disciplinary System Of Breach Of Trust From The Perspective Of Administrative Law

Nowadays,the construction of the rule of law society is in full swing,and a series of problems caused by the credit of the social members have become an important factor affecting the social development.The application of credit punishment mechanism to restrain and limit the subject of discredit has been more and more stipulated in the laws,regulations and normative legal documents of departments.In view of the legislative experience of other countries in the world,there is a promotion law model based on credit market and a management law model that emphasizes the function of government supervision.Therefore,when carrying out the legislation of dishonesty punishment,the first problem is to accurately grasp the enactment of laws.The question of bit.According to the experience of other countries,the premise of positioning social credit legislation as promoting law is that the country has a large,mature credit mechanism and a corresponding sound legal system.However,in contrast,At present,the credit legislation of our country is still in the stage of laying a foundation,the system of credit collection is not mature,there are also a lot of gaps in the relevant legislation,the current situation of social credit and the imperfection of the market mechanism urgently need to be regulated.The immature contradiction of relevant legislation determines that at present our country's credit legislation is more suitable to make use of the advantages of our existing legal framework to regulate the social credit problem.The nature of the disciplinary measures of breach of trust has always been the focus of controversy in practical activities,and the legal consequences arising therefrom are completely different.Therefore,it is necessary to accurately distinguish and analyze the nature of the disciplinary measures of breach of trust.Nowadays,there are academic views on the nature of disciplinary measures of dishonesty,such as administrative behavior theory,administrative punishment theory,administrative compulsion theory,and administrative guidance theory.There are also views that some measures of dishonest punishment are contrary to the principle of"non-bis in idem"of administrative punishment.In fact,in terms of the purpose of the behavior,the disciplinary measures of breach of faith have disciplinary nature.The purpose of retribution for breach of trust is by means of supervision,cancellation of facilities,restriction of financial support,qualification for employment in specific industries or projects such as government procurement,engaging in special market transactions,granting honours and financing credits,and high consumption,make it difficult for people to break their promises.These measures in order to achieve the effective management and implementation of the purpose of the subject of breach of faith to bear the adverse consequences of their actions,in essence,this is the punishment;Disciplinary measures for breach of trust are mandatory.The purpose of discredit punishment system is to urge the completion of certain statutory or agreed obligations,so as to enable the administrative body to achieve its own regulatory purposes,and some of the dishonest punishment measures are indirect.From this point of view,the punishment of breach of faith is mandatory.Due to the lack of legal basis in the central and local legislation,there is a huge controversy in the disciplinary process.The most important basis of our country's dishonest punishment measures at the present stage is the guidance opinion on establishing and perfecting the Joint Disciplinary system of keeping Trust and the Joint Disciplinary system of dishonesty and Credit issued by the State Council,and on this basis,The relevant laws in some areas provide the corresponding provisions,but lack of high-level legislation to provide the basis for dishonest punishment measures,which makes the legitimacy of some dishonest disciplinary measures controversial in society.Because the society is big data's time,the basic idea of discredit punishment is to make use of the characteristics of widespread dissemination of information to deter the subject of breach of faith,so the inevitable problem is how to guarantee the privacy of the subject of breach of trust.The basis on which the administrative organs punish the subject of dishonesty is that the administrative organ has mastered the relevant information of the subject of the breach of trust,and when the subject of the breach of trust produces the act of dishonesty,the administrative organ uses the relevant information that it has mastered to punish.The"killing power"of this kind of disciplinary measure is undoubtedly great and effective,but it may lead to the infringement of the rights and interests of the dishonest subject.As a result,the executive authorities When discipline is carried out,the inquiry and publication of the information of the dishonest subject must abide by the principle of relevance.In order to perform its duties,the administrative organ can inquire all the information,but it must abide by the principle of reasonable administration,and pay special attention to the relevance of behavior.Under the existing system of our country,the punishment for breach of trust depends very much on the way of administrative regulation.Therefore,when legislating,we must do a good job of linking up with the basic administrative law.If there is a problem of conflict of laws when legislating,It is bound to be unfavorable to the effective promotion of the construction of dishonest punishment system.With the continuous development of the rule of law,the relevant administrative basic law also needs to be properly adjusted,because the punishment system for breach of trust must be effectively connected with the Administrative punishment Law,the Administrative Licensing Law,and the Administrative compulsory Law.But also facing the overall legislative situation of centralization of legislation and local authorization,so the amendment of the administrative basic law should pay attention to the ground.The delegation of power leaves enough space for legislative expression.When the information subject thinks that their rights and interests are infringed,relief protection can not be ignored.Firstly,the right to know,the right to dissent and the right to eliminate are needed in the legislation.Secondly,when the rights and interests are infringed,the information subject can choose the administrative litigation,the administrative review way to request the state to compensate and safeguard the rights and interests.