Constitutional Thinking On Joint Discipline For Breach Of Trust

In recent years,commercial fraud,tax evasion,academic fraud,refusal to fulfill the effective court ruling and other acts have been repeatedly prohibited,causing serious damage to the entire market economic order.The low cost of breach of trust and the low strength of punishment can hardly produce an effective deterrent effect on defaulters,therefore,the joint disciplinary system for breach of trust as a kind of governance "tools" in line with the times has taken the stage of history.The joint disciplinary system for breach of trust is the core of China’s social credit system construction,and it does play a role in solving the serious breach of trust in key areas,and has also achieved initial social effects.However,from the actual situation of the system operation,as the most common and important two types of joint disciplinary action,whether from the perspective of the rights of serious defaulters,or the power of the disciplinary body are not in line with the Constitution "to limit public power,to protect the basic rights of citizens" the spirit of the phenomenon occurred.Due to the lack of national legislative power,the implementation of joint disciplinary action for breach of trust can only be based on the guidance of the Party Central Committee and the State Council,cooperation memoranda of ministries and commissions,local regulations,local government regulations,and hundreds of normative documents.This has led to the unclear boundaries of violation of law,contract,morality and trust in practice,the continuous expansion of administrative and judicial disciplinary powers,and the endless problems of infringing on citizens’ personal freedom,human dignity,social and economic rights and other basic rights.The restrictions on the basic rights of serious defaulters by the power of disciplinary agencies in the joint disciplinary action for breach of trust do not satisfy the substantive element of "public interest" and the formal element of "legal reservation" in Article 51 of the Constitution.At the same time,the setting and implementation of the "blacklist" is too arbitrary,exceeding the authority provided by the Constitution and laws,and not in line with the requirements of Article 5 of the Constitution "to build a socialist state under the rule of law".In addition,some of the disciplinary measures violate the constitutional principle of proportionality,and the due process guarantees and remedies for civil rights also need to be strengthened.Obviously,there is an imbalance in the structure of Faquan(the unified structure of rights and powers),which is manifested in the imbalance in the proportion of Faquan,i.e.,the rapid expansion of the power of the disciplinary agency to squeeze the rights of serious defaulters and occupy a dominant position;and the imbalance in the intensity of Faquan,i.e.,the power of the disciplinary agency and the rights of serious defaulters are clustered and scattered,and the intensity of power is significantly higher than that of rights.Therefore,for the optimization direction of the system,it is still necessary to start from the goal of balanced Faquan structure.On the one hand,we should control the power of disciplinary agencies from the national legislation level,specifically by clarifying the legal positioning of joint disciplinary actions,strictly defining the scope of "blacklist",regulating the authority of setting disciplinary measures,and doing a good job of articulating with other laws.At the same time,we should sort out the existing relevant regulations and normative documents,change or withdraw the provisions that violate the higher law,in order to achieve the constitutional goal of "maintaining the unity and dignity of the socialist rule of law".Under the premise of appropriate restrictions on the power of disciplinary institutions,to ensure their normal exercise.On the other hand,we should pay more attention to the protection of the rights of serious defaulters,play the function of procedural protection of basic rights,and strengthen the corresponding legal remedies.Only in this way can joint disciplinary action for breach of trust develop within a constitutional and legal framework.