Study On The Legalization Of Administrative Blacklist System In China

The proposal for the construction of social credit system is closely related with the reform of our economic system.During the planned economy era,the profit-chasing nature of merchants was suppressed by the national macroeconomic plan.However,after China's transition to a market economy system with the reform and opening up,the Chinese government advocated that the market should play a decisive role in the resources allocation process.At a result,economic man's desire to pursue economic profit was excessively released.They were even willing to sacrifice honesty and trustworthiness in order to maximize their economic profits.In the end,the lack of credit has gradually become a negative factor which affecting the development of the market economy.However,due to the lag of legislation,the corresponding credit regulation measures have not been established in a timely manner.At present,China is in a critical period of deepening the economic system reform and improving the socialist market economic system.The construction of a credit system will help strengthen market economic system,calm social conflicts,and promote mutual trust among all the parties.For this reason,the State Council clearly stated in the government work report in 2015 that a blacklist system should be established in all walks of life.The blacklist system has quickly become the "new favorite" of administrative agencies to strengthen management,and it has played a positive role in providing reference information and reminding the the public of risks.Blacklisting the relative and applying joint punishment is performed by the state public authority as a profit-and-loss behavior to fight against the illegal and dishonest administrative counterparts.Its establishment and implementation involve multiple rights of market subjects.If this approach is allowed to grow savagely,there is a high possibility that the rights and interests of other parties will be infringed.At present,there have been a lot of systematic research results on the definition and classification of the administrative blacklist system,but the legal provisions on the blacklist system are not perfect,and the administrative blacklist system still has many shortcomings.Through a comparative study on policies,regulations and practical cases,this article analyzes the shortcomings of the current administrative blacklist system,aiming to solve the current legal problems of the administrative blacklist system in China.Finally,suggestions on improving the legal basis,program design,entity rights,interests protection,and relief mechanism of administrative blacklist system was raised.The thesis is divided into three parts.The first part expounds the application of the administrative blacklist system,and reviews the policies and regulations issued by various places and the court's judgments on related cases since the blacklist system was introduced.By searching official documents,126 State Council documents and 160 State Council department documents have been obtained.Meanwhile,35 local regulations,49 local government regulations,a large number of local regulatory documents and working documents that stipulate the blacklist system were found.By searching and screening judgment documents,252 administrative litigation documents which directly appeal to cancel the blacklist or claim that the blacklist is illegal were obtained.The author explored the legal legitimacy of damages to rights and interests by studying policies and regulations.and found the problems in the blacklist system during the analysis of case judgments,which lay a foundation for the later discussion.The second part analyze the problems existing in the current administrative blacklist system,and divide the problems into four aspects.First,the legal norms are incomplete.At present,China does not have a specific administrative credit management law with provisions related to the blacklist system only in the laws for specific areas.The legal basis for the establishment of blacklist system is not sufficient,leading to many problems.Second,the procedure has defects.Not only there is no uniform standard for the current blacklist system,but there are also loopholes in the design and implementation of the program.Third,the protection of rights and interests is not in place.The administrative power and the rights structure of the counterpart have deviated from equilibrium with a tension between public power and private rights.Fourth,the effectiveness of administrative relief is limited.In practice,there have been incidents that the legitimate rights and interests of the opposite party are infringed due to the mistake of issuing blacklist by administrative subject.However,the effectiveness of counterparts in obtaining relief is limited.The third part explore the countermeasures to solve the problem.To improve administrative blacklist system,we should maintain the legality and legitimacy of the blacklist system with rigorous legal control.improve the governance effectiveness of the blacklist system with standardized procedures,improve the administrative level by self-review and innovation by administrative agencies,safeguard the credit rights and interests of the counterpart in a fair and judicial spirit.The administrative blacklist system is a non-traditional social governance innovation in China.We should improve the system through active and extensive discussion,but should not completely affirm it without asking questions,or discard it because of problems.