Who did China ban from flying?

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Who did China ban from flying?

Several Chinese government departments have jointly released a new document expanding the nation’s no-fly list. The document is part of China’s emerging ‘Social Credit’ System, but the no-fly list is not aimed at people with ‘low credit scores’ [not so much a social credit thing], but at people who have broken specific laws or failed to perform certain legal obligations.

The grounds for inclusion on the no-fly list are laid out in the new document and broken into two broad categories:

  1. Misconduct related to air travel.
  2. “Untrustworthiness” in other areas.

The first category is fairly intuitive: Make a bomb threat, charge the cockpit, threaten flight crew, steal while aboard a plane, etc. and you might be barred from flying again for up to a year.

Some of the conduct in this category is less serious, like the improper use of electronics on aircraft, but these require an additional element or aggravating factor –like refusing to comply with flight crew’s requests to stop– before they merit inclusion in the no-fly list.

Moreover, for all of the acts in the ‘air travel conduct’ category, inclusion on the no-fly list occurs only when the police have given an administrative punishment or brought a criminal prosecution over the conduct, suggesting that it needs to meet a definite level of seriousness.

The second category of misconduct is WAY more interesting: this is conduct with no connection to air travel or air safety that can still land you on a no-fly list. In such situations the civil aviation authorities are barring passengers from flying solely to put pressure on them to comply with another government department’s law enforcement demands.

The grounds for inclusion on the no-fly list for this type of conduct are organized in the document on the basis of which signatory department they are associated with:

  1. State Taxation Administration: Failure to pay taxes when able to do so.
  2. Ministry of Finance: Financial fraud, or overdue debts to international finance organizations or foreign governments
  3. Ministry of Human Resources and Social Security: Failure to contribute to social insurance, benefit fraud, refusal to assist in investigations or to correct problems, etc.
  4. Securities and Futures Commission: Failure to pay fines for securities or futures violations, failure of publicly listed companies to perform public commitments.
  5. Supreme People’s Court: judgment Defaulters
  6. Other: This final category suggests that the document might be amended as more signatories, and corresponding misconduct, are added.

Joint Disciplinary Action of this kind is one of the core concepts of the Social Credit System. The idea is that when someone is labeled as ‘untrustworthy’ in one field, they will face hurdles in every aspect of their lives. This is realized by attempting to link all of a person or entity’s negative conduct to their individual social credit number (ID numbers for citizens, a special code for entities), so that it can be easily shared between government departments on a national credit information platform. The diverse departments and agencies then coordinate joint-discipline by making agreements to all take action against the ‘untrustworthy’ individuals identified by the other departments.

Many regulatory agencies also publicly release the ‘blacklists’ of the ‘untrustworthy’ people they identify in their areas of competency, including for air and train passengers. But note: the ‘negative conduct’ or ‘untrustworthiness’ considered in blacklists and for joint punishment refers only to violations of laws, regulations, or legal obligations, spelled out in implementation rules produced by each agency.

The Supreme People’s Court’s Judgment Defaulter List is the most prominent example of such a blacklist, and has already been implemented for some time. To aid the court in enforcement of valid judgments, 44 separate governmental departments signed this M.O.U. agreeing to restrict access or services to those placed on the Court’s list. Prohibitions on air and high-class train travel, and other limits on high spending, are among the many restrictions placed on judgment defaulters, and have already impacted millions.

Because the Judgment Defaulter List is based on a valid court judgment and applies only to those who have the ability to perform on the judgment but refuse to do so, broad enforcement across unrelated fields seems to be an easier pill for some to swallow. I suspect, moreover, that both inside and outside of China many people would also have no objections to enforcement of a no-fly ban extending to the conduct listed in category 2 of the new document, viewing it as just deserts for misconduct. There are many reasons to be concerned however.

One concern is proportionality. Taking the Court Judgment Defaulter system as an example, one can see that the ‘enforcement’ measures of travel and spending prohibitions can quickly become excessive. Where a court orders that a person pay token damages, is it reasonable that the same consequences should be imposed against them for refusal to comply as against those owing years of child support, or responsible for corporate ecological destruction? Again, many will argue that is, as the penalty is for the refusal to comply itself, and that the difference in judgments is still taken into consideration as fulfilment of the underlying obligation is the primary requirement for removal from the list.

When the judgment is not financial, the problem becomes more pronounced and subject to abuse. It has been reported that a lawyer ordered by a court to give a formal apology was not removed from the list because the judge found their apology insincere. If one defaulted on a court order to periodically visit one’s mother who lived far away (authorized under the law on the protection of the elderly), a ban on air travel would seem to be directly at odds with encouraging performance.

A second, related concern is that the ‘credit’ consequences of a legal violation will become a way to give offenders punishments beyond those authorized by law.

The Judgment Defaulter List, and many of the second category no-fly list situations, is concerned with enforcement of existing obligations. It seeks to make life less comfortable for the relevant party until the obligation is fulfilled. In other situations, however, the goal is deterrence, and the consequences of appearing on a black list (again, for a legal violation) are there to discourage or prevent future violations. The no-fly list’s first category of offenses related to air travel, for example, are aimed both to discourage misconduct and to keep already identified safety threats off planes.

Inclusion on the list, however, is in addition to the administrative or criminal punishment already lawfully imposed for the initial violation. China’s Criminal Law and laws on administrative punishments already dictate what punishments those offenses should be met with; inclusion on the list is a punishment for having received those punishments. Being barred from air travel for up to a year might seem a reasonable indirect consequence of an air safety violation, but seems absurd as a consequence of refusal to perform military training obligations, as has been reported in Jilin. The indirect penalties of being on a violator ‘black list’ could conceivably become worse than the penalties for the violation itself.

Finally, while the social credit system’s ‘blacklists’ focus on violations of laws and legal obligations, that covers a lot of ground. Violations can include some forms of speech, consequences for failure to regulate the speech of others in chat groups, insulting the courts, and so on. So far the social credit joint punishment agreements between departments have generally been modest, and usually link consequences tightly to the underlying ‘untrustworthy’ violations. The no-fly document and its companion document restricting train travel, however, might signal a greater willingness impose less closely related sanctions on the ‘untrustworthy’- even absent a court judgment.

About Jeremy Daum 85 Articles
Jeremy Daum is Alex Daum's dad, Elizabeth Jenkins' Partner, China Law Translate's contributing founder, and a Senior. Fellow at Yale Law School's Paul Tsai China Center. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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