Further Improving Systems for Restraining the Untrustworthy and Building Mechanisms for Building Creditworthiness that have Longterm Effect

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Promulgation Date: 2020-12-7
Title: 国务院办公厅关于进一步完善失信约束制度构建诚信建设长效机制的指导意见
Document Number:国办发〔2020〕49号
Expiration date: 
Promulgating Entities:General Office of the State Council
Source of text: http://www.gov.cn/zhengce/content/2020-12/18/content_5570954.htm

People’s governments of provinces, autonomous regions, and cities directly under the jurisdiction of central government, and all State Council ministries and commissions and directly managed agencies:

为深入贯彻落实党中央、国务院关于推进诚信建设的要求,认真落实《优化营商环境条例》等相关规定,进一步明确信用信息范围,依法依规实施失信惩戒,完善失信主体信用修复机制,提高社会信用体系建设法治化、规范化水平,经国务院同意,现提出如下意见。

I. General Requirements

With Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era as a guide, comprehensively implement the spirit of the 19th National Congress of the Communist Party of China and the 2nd, 3rd and 4th Plenary Sessions of the 19th Central Committee, adhere to the general tone of steady progress; stay on the track of rule of law, strive to build long-lasting and effective mechanisms for creditworthiness and uphold the overall idea of complying with laws, protecting rights and interests, being prudent and moderate, and list management; further standardizing and improving the mechanisms for designating, recording, collecting, sharing, disclosing, punishing and repairing untrustworthy conduct; and promote the social credit system to enter a new stage of high-quality development, better giving play to the active role of the social credit system in areas such as supporting the reform of “streamlining administration and improving services” and the transformation of government services and creation of a fair and creditworthy market order environment and social environment.

In promoting the establishment of the social credit system and in exploratory practice, the following important principles should be grasped: First is strict compliance with laws and regulations; the vital interests of individuals, enterprises, and all other entities related to the recording of untrustworthy conduct, designations for the lists of seriously untrustworthy conduct, and punishments for untrustworthiness must be implemented strictly on the track of rule of law. Second is correctly defining scope, correctly defining the scope of credit information and designations for the lists of seriously untrustworthy entities, having a reasonable understanding of punishments for untrustworthiness, to resolutely prevent improper use, or even abuse. Third is ensuring that punishments are proportionate, implement different types and degrees of punishment in accordance with the sector in which misconduct occurred, the severity of the circumstances, and the degree of impact, to truly protect the lawful rights and interests of credit entities. Fourth is Drawing from international experience is to be emphasized, basing ourselves on China's national conditions, and also fully referencing international practice; to cautiously promote the establishment of credit systems in sectors of high social concern or where there is not yet a consensus understanding, and promote relevant measures being in line with international standards.

II. Rationally Delineate the Scope and Procedures for Inclusion of Public Credit Information

(1) Clearly delineate the scope of Public Credit Information. The inclusion of information on specified conduct that is controlled by administrative organs and organizations authorized by laws or regulations to have public affairs management functions (hereinafter collectively 'administrative organs') as Public Credit Information must be based strictly on laws, regulations, or policy documents from the Party Central Committee or State Council, and managed through a catalog system. The leading units of the inter-ministerial conference on the establishment of a social credit system (hereinafter interministerial conference) are to collaborate with relevant departments in editing and periodically updating a national base catalog of Public Credit Information, and the member units of the interministerial conference and other relevant departments may submit suggestions for inclusions in the catalog in accordance with laws and recommendations; and the leading units of the interministerial conference are to organize and consolidate the catalog, soliciting the opinions of each region, each relevant department, relevant market entities, industry associations and chambers of commerce, legal service establishments, experts, scholars, and the public, and request that the interministerial conference announce it to the public and organize implementation after the deliberation and approval. Each region may draft supplemental catalogs of Public Credit Information based on local regulations to be applied in that area, with reference to the drafting procedures for the national Public Credit Information base catalog.

(2) Strictly regulate the basis for identifying untrustworthy conduct. Administrative organs designations of untrustworthy conduct must have legally effective documents as their basis. Acceptable bases for designation of untrustworthy conduct include: Effective judicial rulings and arbitration documents, decision documents from administrative acts such as administrative punishments and administrative verdicts; as well as other documents that laws, regulations, or policy documents of the Party Central Commission or State Council provide may be the basis for designating conduct as untrustworthy. After administrative organs designate conduct as untrustworthy, they shall truthfully record the information on the untrustworthiness.

III. Regulate the scope and procedures for sharing and disclosing Public Credit Information

(3) Regulate the scope and procedures for sharing and disclosing Public Credit Information Whether public credit information may be shared and what type of range to share it in shall be determined on the basis of the principles of legality and necessity, and indicated together when drafting public credit information catalogs. Improve mechanisms for information sharing, promoting interconnectivity and data sharing between the national credit information sharing platform, the national enterprise information announcement system, as well as relevant departments' credit information systems, indicating the name of the collecting department, so that collection and full sharing are accomplished in one move.

(4) Determine the scope of openness for Public Credit Information in accordance with laws and regulations. Whether public credit information may be disclosed shall be determined based on the principles of legality and necessity, and indicated when public credit information catalogs are being drafted. The disclosure of public credit information must not encroach on commercial secrets or personal privacy, except as otherwise provided by laws and regulations. Where information related to individuals is disclosed, the basis must be laws, regulations, or decisions and orders of the State Council, or be upon the consent of the individual, and processed to remove sensitivity as needed.

(5) Strengthen overall management of channels for the disclosure of Public Credit Information. The departments designating public credit information shall follow open government information or other provisions to disclose the information on the portal website for that department or level of government, or other designated websites. The 'Credit China' website and national enterprise credit information announcement system are to conduct uniform disclosure of all public credit information they have gathered which is required to be disclosed in accordance with relevant provisions, and remain consistent with the content and timing for disclosures by the departments designating public credit information.

IV. Regulate Standards and Procedures for Making Designations for Lists of Seriously Untrustworthy Entities

(6) Strictly limit the scope in setting lists of the seriously untrustworthy entities. Fields establishing lists of seriously untrustworthy entities must have a basis in laws, regulations, or policy documents from the Party Central Committee or State Council, and departments (units) must not add to or expand the scope on their own. Strictly follow the provisions of "The State Council Guiding Opinions on Establishing and Improving Systems of Joint Incentives for Trustworthiness and Joint Disciplinary Action for Untrustworthiness and Accelerating the Establishment of the Social Credit System" Guofa (2016) No. 33) in establishing the scope of lists of seriously untrustworthy entities, to restrict it to entities responsible for seriously untrustworthy violations of law that endanger the public's physical health and security in their lives, seriously undermine the order of fair market competition, refusals to perform legally-prescribed obligations seriously impacting the credibility of the judicial and administrative organs, and refusals to perform national defense obligations, and so forth.

(7) Strictly Regulate Standards for Making Designations for Lists of Seriously Untrustworthy Entities. The designation standards for lists of seriously untrustworthy entities that are implementated nationally shall be set by laws, administrative regulations, or policy documents of the Party Central Committee or State Council, and where there is temporarily not capacity, they may be set by departmental rules from the department in charge (regulatory department) for that field, and the comments of the units leading the interministerial conference, other relevant departments, relevant market entities, industry associations and chambers of commerce, legal service establishments, experts, scholars, and the societal public shall be fully solicited with an open period for solicitation of comments of not less than 30 days. Designation standards are to be disclosed through the "Credit China" website and the websites designated by the competent (regulatory) departments for that sector. Designation standards shall also specify the conditions and procedures for removal, as well as relief measures. The departments drafting designation standards shall periodically organize third-party assessments of the efficacy of implementing the standards an promptly revise them. The designation standards for lists of seriously untrustworthy entities that are local in their scope of implementation shall be provided for by local regulations.

(8) Strictly Perform Procedures for Making Designations for Lists of Seriously Untrustworthy Entities. Before administrative organs make decisions on designations for the lists of seriously untrustworthy entities, they shall inform parties of the matter and basis on which a decision is being made and the rights that the parties enjoy in accordance with law; and where the parties submit objections, they shall review and verify it and respond on the outcome within the set period of time. When market entities are included in the list of seriously untrustworthy entities, the department making the determination shall rely on the corresponding administrative decision documents to indicate the reasons and basis, and warning of disciplinary measures for untrustworthiness, as well as release conditions, procedures, and remedies, etc.; and when necessary, the department making the determination may also independently draft decision documents for determinations on the list of seriously untrustworthy entities. In principle, lists of seriously untrustworthy entities shall be set by the relevant departments of people's governments at the county level or above (including county-level) in accordance with relevant standards, but where laws, regulations, and departmental rules provide otherwise, follow those provisions.

V. Carry out Credit Punishments in Accordance with Laws and Regulations

(9) Determine punishment measures for the untrustworthy in accordance with laws and regulations. The adoption of punishment measures that reduce their rights or increase the obligations of untrustworthy entities must be rooted in the specific facts of the untrustworthy conduct and directly cite the existing clauses of laws, regulations, or policy documents of the Party Central Committee or State Council on which they are based, and implement list management. The units leading the interministerial conference together with relevant departments, and member units of the interministerial conference are to draft and periodically update the national list of punishment measures for the untrustworthy in accordance with laws and regulations, and member units of the interministerial conference and other relevant departments may submit proposals on recommended punishments measures for the untrustworthy, with the units leading the interministerial conference organizing and consolidating the list and soliciting the opinions of each area and each relevant department, relevant market entities, industry associations and chambers of commerce, legal service establishments, experts, scholars, and the societal public, and organize the publication and implementation after deliberation and approval by the interministerial conference. Each region may draft supplemental lists of punishment measures for the untrustworthy based on local regulations to be applied in that area, with reference to the drafting procedures for the national list of punishments for the untrustworthy. Departments (units) must not compel financial establishments, credit service bodies, industry associations and chambers of commerce, news media, and so forth to punish untrustworthy entities.

(10) Ensure punishments correspond to the offense. In accordance with the principles of legality, relativity, and proportionality, and with the list of punishments for the untrustworthy, adopt punishment measures with the appropriate degree of severity based on the nature and seriousness of the untrustworthy conduct, to prevent overpunishment of small infractions. Departments (units) must not set up punishments outside of laws, regulations, or policy documents of the Party Central Committee or State Council, or increase the legally prescribed standard for punishment on the grounds that the force of the current punishment for untrustworthy conduct is insufficient.

VI. Complete and improve mechanisms for restoring credit.

(11) Establish and complete supporting mechanisms for credit restoration. The relevant competent (regulatory) departments shall establish credit restoration mechanisms that are conducive to self-correction and turning over a new leaf. Where untrustworthy entities request to correct untrustworthy information and eliminate negative effects, they may always apply for credit restoration, except for information on untrustworthiness that laws, regulations, or policy documents of the Party Central Committee or State Council provide cannot be restored. Relevant departments (units) shall draft specific provisions on the restoration of credit, indicating the means and procedures for restoration. Where conditions are met for credit restoration, they shall be promptly removed from the list of seriously untrustworthy entities in accordance with provisions, and sharing and disclosure of the related information on untrustworthiness is to be stopped, or the information on untrustworthiness can be given a marker, blocked, or deleted.

(12) Increase the efficacy of credit restoration. Strengthen sharing of credit restoration information, accelerate the establishment and improvement of mechanisms for coordinated links and the "one-site handling" to truly resolve the problem of "credit restoration" being difficult. The competent (regulatory) departments for relevant sectors, as well as the national credit information sharing platform and the "Credit China" website, shall indicate designated personnel responsible for credit restoration efforts and are to complete handling of eligible applications for credit restoration within the time limit. and must not collect fees in any form from entities applying for credit restoration.

VII. Strengthening Information Security and Privacy Protections

(13) Strengthen credit information security management. All levels of public credit information system meet the requirements of protecting market entities' rights and interests and clarify the scope of authority and procedures for inquiries into information, and establish and improve registration and review systems for information inquiries to prevent information leaks, and where information is leaked either intentionally or due to job errors, the responsibility of relevant units and employees should be strictly pursued in accordance with laws and regulations. Strictly investigate leaks, alterations, destruction, and theft of credit information or use of credit information to seek personal gain, strict combat illegal conduct such as the illegal collection or sale of credit information in the name of establishing the social credit system.

(14) Increase the force of protections for personal privacy. Each region and relevant department shall follow the principles of legality, justness, necessity, and minimization to collect and use credit information in strict accordance with the public credit information catalog, clearly indicating the goals, methods, and scope of information collection and use, and having the individual's consent, except as otherwise provided by laws and regulations. It is prohibited for any unit and individual collect and use personal credit information without authorization, by compelling authorization, or having a single permanent authorization. Expand the force of investigation and handling of conduct such as the illegal acquisition, broadcast, use, or leaking, modification, theft, or sale of personal information. Relevant departments should carry out key management of financial institutions, credit reporting bodies, internet enterprises, big data enterprises, and mobile application business enterprises, strictly regulating their conduct such as the collection, storage, processing, transfer, provision, and disclosure of personal information.

VIII. Strive to Strengthen the Establishment of Credit Law

(15) Accelerate and promote the establishment of laws and regulations on credit. Persist in following the path of rule of law, accelerate research to promote of laws and regulations on social credit, straighten out the relationship between punishments for untrustworthiness and administrative management measures, and consolidate the foundation of the rule of law. Where the force of punishments against untrustworthiness in current laws and regulations is insufficient and it is truly necessary to increase the force of punishment, each region and relevant department shall promptly submit suggestions on revisions to ensure that punishments for trustworthiness are carried out in accordance with law.

(16) Promote the establishment of the social credit system in strict accordance with laws and regulations. In accordance with laws and regulationsl, strictly regulate the scope of the collection, sharing, and disclosure for credit information; strictly standardize efforts on designations for the lists of the seriously untrustworthy, punishments for trustworthiness, and credit restoration work, to ensure that every piece of the establishment of the social credit system is done on the path of law. The untrustworthy conduct of minors that was brought on by force majeure such as natural disasters or disease and slight untrustworthy conduct lacking subjective intent should be leniently and cautiously designated, recorded, and punished. Resolutely investigate and handle all kinds of infringing acts, preserving the security of credit information, commercial secrets, and personal privacy in accordance with laws and regulations, and protect all kinds of credit entities' lawful rights and interests in accordance with laws and regulations.

IX. Strengthen Safeguards for Organizational Implementation

Implement entity responsibility Competent (regulatory) departments for each industry should truly perform primary responsibility for credit oversight in that sector, completing efforts such as on designations, recording, aggregation, sharing, disclosure, punishment, and credit restoration of untrustworthy conduct, and the units leading the interministerial conference should coordinate with the judicial organs and other responsible units that have received clear authorization to do related work. All levels of local units leading the establishment of the social credit system should effectively perform their duties of planning and coordination, to strengthen regulation and guidance of that region's efforts to establish a social credit system.

Strengthen the pursuit of responsibility and accountability. The responsibility of relevant units and individuals should be pursued in accordance with law for recording, sharing, or disclosing credit information outside of that in the public credit information directory in violation of laws and regulations; for carrying out punishment measures outside of those in the list of punishment measures for trustworthiness in violation of laws and regulations; or making designations for the list of seriously untrustworthy entities without following standards or procedures, as well as for not promptly handling credit restoration in accordance with regulations

Strengthen publicity and explanations. All types of media are encouraged to carry out publicity and education on creditworthiness, thoroughly reporting on advanced examples of creditworthiness and trustworthiness and carrying out constructive public sentiment oversight of untrustworthy conduct and incidents to advocate creditworthiness and trustworthiness. Give full play to the role of relevant departments, industry associations and chambers of commerce, experts and scholars, news media, and so forth in promptly elucidating credit policies, actively responding to the concerns from all sectors, strengthening positive guidance, and creating a positive public opinion environment.

Take hold of timing junctures. Each region and each relevant department should follow the requirements of these Opinions to conduct a sorting and assessment of measures on designating, recording, aggregating, sharing, disclosing, punishing, and credit restoration of untrustworthy conduct and those that do not meet the requirements of these Opinions should be promptly standardized. A transitional period is to be set for systems of lists of the seriously untrustworthy entities that have a clear basis and can be retained, and before the end of 2021, update the list designation standards and procedures that require adjustment in accordance with these Opinions, with all those inconsistent with these Opinions abolished at the end of the transition period.

General Office of the State Council

December 7, 2020

 

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