Research On The Dilemma Of The Joint Disciplinary System For Breach Of Trust And Countermeasures

Joint disciplinary action for breach of trust is a unique system innovation in China,which belongs to the subordinate concept of disciplinary action for breach of trust.The core of the system lies in "joint",through information sharing,administrative subjects,market subjects,industry subjects,social subjects and so on join together to implement disciplinary measures in honor,reputation,property,behavior and qualification for serious breach of trust.Discipline can also be imposed on violations of the law,this is because the disposal of resources to the violator also bears the risk,and the violation of the law thus also has the property of breach of trust.The administrative jurisprudence of the system is mainly based on the theory of equilibrium,the theory of cooperative government and the theory of public governance can provide support for the cooperation mechanism of joint departmental and public-private cooperation respectively.The joint disciplinary system for breach of trust is powerful in realizing the rights and interests of creditors,making up for the inadequacy of ex post facto punishment,and building a social integrity system,but it cannot break through the boundaries of public and private power,discipline and incentive,and government and market.2016 State Council’s "Guiding Opinions" make the joint disciplinary system for breach of trust step into institutionalization.Existing regulations at the normative level are mainly memoranda of cooperation spread across various key areas,with localities following the central government in developing local versions.In practice,a large number of subjects are blacklisted,and joint disciplinary action covers a wide range of areas and strengths.There are some problems with the joint disciplinary system for breach of trust.The memorandum of cooperation as the institutional arrangement of joint disciplinary action is too low,and the local memorandum is set and implemented without control.There is a tendency of panmoralization in the identification of breach of trust,uncivilized and unfilial are also included in the joint disciplinary action,and the joint disciplinary action is beyond the proper scope of application.The disciplinary measures are not related to the applicable matters of the breach of trust,and even involve unrelated subjects,and there is a serious imbalance between the disciplinary means and the size of responsibility.Procedural control also has much room for improvement and soundness.There are reasons for the above problems.There are some conceptual deviations for building an honest society,equating an honest society with a perfect society,resulting in the pan-moralization of breach of trust determination,and the impetuous and adventurous system construction leading to low quality of local memorandum legislation.The ambiguous positioning of the legal nature of the joint disciplinary system for breach of trust slows down the process of developing uniform legislation by the central government and also leads to too bold use of disciplinary power in practice.The joint disciplinary system for breach of trust is functionally misplaced,turning into a governance tool to accomplish administrative tasks,as fully evidenced by the uneven construction of the credit system.The problems mentioned earlier should be improved and controlled by strengthening the statutory,correlation,proportionality and procedure of joint disciplinary actions for breach of trust.A unified Social Credit Law is formulated,and the basis and the subject of the breach of trust is determined legally,and the moral requirements cannot be raised to law.According to the field to which it belongs to establish a reasonable correlation between disciplinary measures and breach of trust,in the legislative formulation,it is not appropriate to choose the linkage between unspecified discipline and breach of trust,and joint discipline in principle cannot be extended to close relatives.Joint disciplinary actions should be limited to serious defaulters and set a certain application period.Guarantee the right to know at all stages of the defaulting subject,strengthen the rules design of the objection procedure,implement administrative litigation and other postfacto remedies,and improve credit information repair and credit behavior repair.