Research On The Right Relief Of The Object Restricted For Dishonesty

With the further construction of Social Credit System,dishonesty restraint,as a compound governance tool,plays an increasingly important role in social governance.However,the measures of dishonesty restraint,based on the administrative handling,are faced with the lack of perfect relief mechanism.There must be relief when there is right,which is not only the basic requirement of the system construction in the era of rule of law,but also an integrant part of building Social Credit System and perfecting the Dishonesty Restraint System in the path of rule of law.Therefore,based on the legal norms and empirical investigation of the Dishonesty Restraint System and its relief mechanism,this paper discusses the basic administrative and Judicial Relief Theory,and the Social Credit Theory,making an attempt to build a Relief System of Dishonesty Restraint with a basic framework of "credit repair-administrative relief-judicial relief",which is guided by the basic legal norms of credit.In addition to the introduction and conclusion,this paper is divided into four parts.In the first part,the author expounds the concept and related theories of dishonesty restraint from three aspects:(1)the connotation of dishonest restraint.Firstly,the author discusses the connotation of "faith" in dishonest restraint,and summarizes that "faith" in the context of this paper refers to the collection of the subjects Self-restraint Mechanism and Legal Restraint Mechanism,including not only moral values such as integrity,sincerity and keeping promises,but also the entry point of implementing legal mandatory norms dominated by the Reputation Mechanism.Secondly,the author gives an explanation of the concept and characteristics of dishonesty restraint,which includes that dishonest restraint takes the public power organ as the main body,uses the credit information of the object restricted for dishonesty,and imposes restrictions on his/her behaviors sufficient to produce adverse legal consequences on his/her personal property,qualification right and so on,with characteristics of multi-subjectivity,unity,multi-behavior and information dependency;(2)the definition of the legal nature of dishonesty restraint.From the perspective of relief,the author defines that dishonesty restraint should be a specific administrative act on the basis of recognizing the Theory of Multiple Attributes;(3)the characteristics of the dishonesty restraint relief.The author holds the view that the current dishonesty restraint relief has two characteristicsof being information dependent,multi-levelled,administrative and system construction unbalanced.The second part of this paper focuses on investigating the current situation of the right relief of the object restricted for dishonesty,which mainly includes the brief description of the operation mechanism of dishonesty restraint,the exploration of legal norms and the depiction of the pattern of the Relief Mechanism.Firstly,the author describes the operation mechanism by combined with its objectives,its key points,and its operation mode,paying emphasis on the implementation method of "information collection-classified restraint".Secondly,the exploration of legal norms is divided into two levels: central and local.At the central level,this paper mainly analyzes the relief provisions based on the guidance of the central guiding documents and the Memorandum of Joint Punishment for Dishonesty.While at the local level,this paper mainly conducts a comparative analysis on the the relief provisions of Dishonesty Restraint in the existing provincial credit laws and regulations.Thirdly,the author depicts the Relief Mechanism from three aspects: credit repair,administrative relief and judicial relief,in order to outline the basic pattern of the current Dishonesty Restraint Relief Mechanism in combination with data comparison and specific case study.The third part of this paper mainly analyzes the right relief of the object restricted for dishonesty,which finds several problems such as the lack of clear higher-level law norms,the low effectiveness of credit repair,the difficulty in connecting administrative reconsideration with dishonesty restraint,and the obstacles in seeking relief through administrative litigation.In the fourth part,the author puts forward the following sound countermeasures for the right relief of the object restricted for dishonesty.The first countermeasure is to give an accurate characterization of dishonesty restraint in the process of promoting social credit legislation,and the basic direction of the accurate characterization,which means that all dishonesty restraint measures,including the collection,sharing and use of information,should be considered as specific administrative acts.The second is to improve and perfect the Credit Repair Mechanism,which includes attaching importance to the construction of the informing and objection procedures to improve the efficiency of credit repair.The third is to strengthen the connection between dishonesty restraint measures and the Administrative Legal System.The author proposes that the specific restraint behavior and credit collection behavior can be divided into two,and that the selection of reconsideration object should be corresponded to the authority which makes the decision on the specific restraint behavior,the department in charge of credit information at or above the county level,and the provincial management service organization of social credit information.The last countermeasure is to explore a new way for the relief through administrative litigation to participate in credit governance.The author puts forward two directions for further explorations,finding the "maximum common divisor" for the characterization of dishonesty restraint measures and giving full play to the role of the third-party litigation and judicial suggestions,so as to solve the two obstacles of impeded litigation channel and poor judicial review.