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Knight (2023) - Basket Case. Reform and China's Social Credit Law

The article discusses the evolution of China's social credit system (SCS), which has transitioned from a financial tool to a broader regulatory framework aimed at assessing trustworthiness across various sectors. It highlights the tensions between central and local implementations, domestic criticisms, and the push for reform, culminating in a draft Social Credit Law published in November 2022. The SCS reflects a blend of governance modernization goals and traditional moral values, aiming to enhance societal trustworthiness while navigating complex political dynamics.

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0% found this document useful (0 votes)
15 views30 pages

Knight (2023) - Basket Case. Reform and China's Social Credit Law

The article discusses the evolution of China's social credit system (SCS), which has transitioned from a financial tool to a broader regulatory framework aimed at assessing trustworthiness across various sectors. It highlights the tensions between central and local implementations, domestic criticisms, and the push for reform, culminating in a draft Social Credit Law published in November 2022. The SCS reflects a blend of governance modernization goals and traditional moral values, aiming to enhance societal trustworthiness while navigating complex political dynamics.

Uploaded by

Narcis Barbu
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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China Law and Society Review 6 (2021) 181–210

Basket Case: Reform and China’s Social Credit Law

Adam Knight
Institute for Area Studies, Leiden University, Leiden, Netherlands
[email protected]

Abstract

The social credit system (scs) has become a cornerstone of China’s drive toward
informatization in pursuit of its governance goals. Its definition and scope, two
decades in the making, have evolved dramatically over time, however. What began
as a financial tool for the stimulation of market-based activity has been applied in a
broader regulatory context as well as in the propagation of a state-arbitered moral-
legal agenda. Layered on top of these sometimes conflicting ambitions has been
a persistent tension in central-local implementation, further complicating rollout
of the system. Domestic criticism of the scs in policy and academic circles has led
to a clamor for reform, culminating in the publication of a number of clarificatory
documents, including a draft version of a Social Credit Law in November 2022. This
article provides a genealogy of this new law, exploring the origins and evolution of the
scs and its governing legal logic.

Keywords

governance – informatization – legal reform – social credit law – social credit system

The construction of China’s social credit system (scs) [shehui xinyong tixi
社会信用体系] is in full swing, yet its legal definition and direction remain
highly contentious. State Council plans covering the period 2014–2020
describe a system whose aim is to leverage government-held data to assess
the “trustworthiness” [chengxin 诚信] of a range of actors in pursuit of a
wide range of governance goals. Separate processes exist for individuals (the
focus of this article), businesses, and government officials as well as myriad
local variations launched and incubated as part of a policy of decentralized
experimentation. Since 2019, numerous central planning authorities have
issued updates to reform and extend the scs beyond the scope of its original
Published with license by Koninklijke Brill nv | doi:10.1163/25427466-06020003
© Adam Knight, 2023 | ISSN: 2542-7458 (print) 2542-7466 (online)
This is an open access article distributed under the terms of the CC BY 4.0 license.
182 knight

planning documents. As of mid-2022, at least thirteen regions had issued pro-


vincial-level social credit regulations [tiaoli 条例], while at the national level a
draft Social Credit Law was published in November, shortly before this article
went to press.
The scs has garnered significant attention both inside and outside China.
Legal scholar Dai Xin (2019) attributes this to two factors: first, a tendency to
conflate social credit with other discussions of technology, such as artificial
intelligence, big data, and their implications for governance and society; and,
second, a morbid fascination among Western audiences with projecting their
own insecurities about technology onto China. Such techno-orientalist char-
acterizations are frequently translated and circulated among often-bemused
Chinese audiences (Wang 2020). English-language portrayals of the scs tend
to depict it as monolithic in both purpose and approach. The literature in tech-
nology studies tells us that such uniform descriptions of political projects imply
a false consensus that often overlooks the plurality of voices and experiences
that have gone into the shaping of a technology’s design and execution (Hecht
2011; Medina 2011; Mitchell 2002). In the Chinese context, a vibrant debate over
the aims of the scs has emerged in recent years. The system has been pejora-
tively labeled a “basket” by some who criticize its “generalization” and appli-
cation in an ever-wider range of fields beyond its original scope, undermining
both its own legitimacy and that of other competing reform projects. Calls to
reform the system in line with broader governance modernization goals since
the fourth plenum of the nineteenth congress of the Chinese Communist Party
(hereafter, nineteenth Party congress) have gained significant momentum, cul-
minating in the publication of a new scs plan in March 2022, ahead of a draft
law several months later.
This article poses a simple question: where are we now, and how did we get
here? It traces the origins and evolution of the scs and its governing legal logic,
highlighting its unique development path while paying particular attention to
its inherent defects and the emerging critical voices that continue to influence
its direction.

Governing Roots

What is social credit? A concise definition of the term is difficult to achieve


because of its rhetorical evolution over the past two decades. Research on
“social credit” [shehui xinyong 社会信用] first began at the Chinese Academy
of Social Sciences (cass) in the late 1990s, receiving its first high-level political
mention in 2002 as part of the report to the sixteenth Party congress by the

China Law and Society Review 6 (2021) 181–210


Reform and China’s Social Credit Law 183

outgoing secretary general, Jiang Zemin (Jiang 2002). In its earliest iteration,
social credit had a primary goal of addressing the escalating issues of malfea-
sance in China’s newly marketized economy, acting as a tool for measuring
the likelihood that an entity would abide by contractual commitments and
repay debts in a timely manner. This system drew heavily on inspiration from
abroad, predominantly the US and the popularity of new institutional eco-
nomics thinking in policy-making (Gewirtz 2017).
From its very inception, however, the search for a uniquely Chinese theory
of credit beyond this “narrow” [xia’ai 狭隘] financial definition has preoccu-
pied many of its chief architects (Lin 2012; Sun and Gong 2019; Zhang Y. 2019;
Zhang Z. and Zhang L. 2019). The thinking of Wu Jingmei (2013), a member
of the original cass research team, has proved particularly influential. She
describes credit as made up of “three dimensions”—trustworthiness, com-
pliance, and keeping promises, with each one supporting, influencing, and
transforming the other. “Trustworthiness” [chengxin 诚信] refers to an indi-
vidual’s basic level of peer-to-peer credibility; “compliance” [hegui 合规] refers
to their ability to abide by rules and regulations as well as social norms, the
kind of social capital that enables the formation of divisions of labor; “keep-
ing promises” [jian yue 践约] refers to one’s ability to abide by transactional
contracts and underpins any economic relationship. This conception of credit
with Chinese characteristics has not been universally well received, especially
by some of the system’s original financial designers (Wang 2020). Nonetheless,
it is broadly hailed as a cornerstone of the system’s innovation (Lin 2020; Luo
2018a) and reflected in official definitions of credit (Cheung and Chen 2021).
The formal starting point for social credit development and implementa-
tion came in June 2014 with the publication of the State Council’s Planning
Outline for the Construction of a Social Credit System 2014–2020 (hereafter, the
“2014 Planning Outline”). This foundational text reflects some of the theoret-
ical debates that led to the design of the scs as well as some of the system’s
inherent features:

The social credit system is an important component of both the socialist


market economy and social governance systems. It is founded on laws,
regulations, standards, and charters and is based on a complete network
covering the credit records of members of society and credit infrastruc-
ture. It is supported by the lawful application of credit information and a
credit services system with the inherent requirement of establishing a cul-
ture of trustworthiness to carry forward trustworthiness and traditional
virtues. It uses rewards to keep trust and punishments against breaking

China Law and Society Review 6 (2021) 181–210


184 knight

trust as incentive mechanisms, with the overall objective of raising a


mentality of trustworthiness and credit levels across the whole of society.
state council 2014

This opening paragraph alone shows that social credit concerns economic
management as well as social control; it is underpinned by the law but also
seeks to elevate morality; it is state led but relies on private service provid-
ers for elements of its implementation; and, at its core, it aims to encourage
and discourage certain behaviors through the development of data-driven
infrastructure.
This describes a credit system whose scope is unparalleled anywhere in the
world, expanding reputation-driven techniques to navigate a wide range of reg-
ulatory challenges (Chen and Cheung 2017; Dai 2018). Elsewhere, social credit
has been framed as a “great practice of improving the national governance sys-
tem” and “an unprecedented reform of the model for management of both the
economy and society” (Guan 2016). Its centrality to the broader reform agenda
of the Chinese Communist Party (ccp) should not be underestimated.
Although social credit is arguably without comparison internationally, it
has not evolved in a vacuum and is the product of at least three converging
trends in Chinese governance over the past few decades.

Neosocialism and Informatization


The scs, which evolved out of the scientism of the 1980s, should be under-
stood primarily as an attempt to streamline and even automate aspects of
governance in response to the challenges of the twenty-first century, as part
of the ccp’s efforts to apply an ever-wider range of neoliberal practices and
techniques to governance. This process began with surrendering an increas-
ing amount of direct state control over the economy to the invisible hand of
the market but has gradually been applied elsewhere. Frank Pieke (2009) calls
this fusion of socialist creed with marketized technologies “neosocialism.” In
his view, this represents something that is more than just the sum of its parts.
It is not simply an old-fashioned Leninist Party-state putting new technology
to familiar use. Rather, it is the application of innovative, neoliberal technol-
ogies, both foreign and homegrown, to the heart of China’s state-building
project, supporting, centralizing, modernizing, and strengthening the Party’s
leading role in society. China’s post-Tiananmen era has been characterized by
the dismantling of some of the Party’s stricter methods of governance in favor
of a more complex, diffuse, and immersive mode of control, not necessarily

China Law and Society Review 6 (2021) 181–210


Reform and China’s Social Credit Law 185

replacing but, rather, supplementing more hierarchical and regulated systems


of formal authority (Bray and Jeffreys 2016).
Since the 1990s, this program has been deeply connected with the ccp’s
ambitious informatization [xinxihua 信息化] plans, through which digital
technologies are applied in an increasingly wide range of governing practices.
These efforts can be understood as part of a drive to build a “smart state,” in
which sophisticated technologies, big data, and artificial intelligence (ai) are
combined to automate aspects of public administration. This technology-ena-
bled shift aims to relax the government’s grip over the minutiae of day-to-day
social and economic organization, streamlining administrative bureaucracy
and creating space for the marketization and individualization that have fue-
led China’s rise, all without compromising the Party’s omniscience and omni-
presence in politics, ideology, and morality.
Administrative streamlining is an explicit goal of the scs. In addition to
providing accurate information on an entity’s creditworthiness, the Planning
Outline states that the system intends to “reduce administrative government
interference in the economy.” Subsequent high-level social credit documents
have repeatedly linked the construction of the system with the delegation
of control as part of a wider transformation in governing techniques. This
includes an emphasis on social credit as a tool for greater enforcement of
judicial decisions, as well as “social governance,” a practice that differs from
previous attempts at “social management” through its emphasis on “co-con-
struction, co-governance, and co-sharing” with a variety of actors, both public
and private, as well as increasing reliance on principles of individual self-gov-
ernance (Ma 2018; Snape 2019).
Credit-based technologies and principles are influencing an ever-wider
range of policies beyond the direct purview of the scs. The system has fused
with broader efforts to decentralize power, innovate administration, and
improve services in government—known as the fang guan fu [放管服] reforms.
In the summer of 2019, the State Council published its Guiding Opinions on
Accelerating the Construction of a Social Credit System and Building New Credit-
Based Supervisory Mechanisms, highlighting the role of big data and ai to create
an early warning about risky actors in need of increased regulatory attention
(State Council 2019; Trauth-Goik and Bernot 2021).

Morality in the New Era


Although new governing technologies have in part fueled the development of
the scs, another key driver of the system’s expansion in recent years is the
revival of a more traditionalist strand of virtue-based governance. The core of

China Law and Society Review 6 (2021) 181–210


186 knight

this trend is the concept of “governing the nation through moral virtue” [yide
zhiguo 以德治国]. The term has its origins in the Jiang Zemin era (1989–2002)
but builds on a long tradition of legitimation through moral making, whose
roots date back to imperial China and have parallels in the Maoist period
(Thornton 2007).
Throughout the administration of Hu Jintao (2002–2012), greater focus was
placed on “the construction of spiritual civilization” [jingshen wenming jian-
she 精神文明建设] in response to a perceived collapse in public morality and
an ensuing crisis of trust. Since the 1980s, a broader intellectual discussion of
a “spiritual vacuum” [jingshen zhenkong 精神真空] has been a constant fix-
ture, as thinkers lamented the erosion of social integrity (Ci 2014; He 2015; Lee
2014; Kleinman et al. 2011; Zhang, Kleinman, and Tu 2010). Sociological expla-
nations of this crisis have centered on the great upheaval in China during the
twentieth century, namely its transition from a “society of familiars” [shuren
shehui 熟人社会]—in which consanguinity and geographic proximity acted as
the primary mediators of public, political, and moral life—to one of strangers
[mosheng shehui 陌生社会], in which a constant sense of imminent deception
thrives without adequate institutional assurances (Fei 1947/1992; Fukuyama
1995; Seabright 2010). Highly publicized stories in the media, such as those
about the death of a toddler named Yueyue, Good Samaritans sued after show-
ing compassion, and numerous food scandals loom large in theoretical justi-
fications for expansion of the scs beyond the financial realm (Luo 2016). Hu
dedicated the sixth plenum of the seventeenth Party congress, held in 2011, to
the relationship between culture and ideology, with its resulting Report stipu-
lating that the country’s credit system should foster trustworthiness [chengxin
诚信] in society, not only in commercial affairs but also in social and political
morality (Hu 2007).1
This explicit link between ethical conduct and the scs was strengthened
early in Xi Jinping’s “new era” with the ideological promotion of the socialist
core values [shehuizhuyi hexin jiazhiguan 社会主义核心价值观]. The socialist
core values comprise twelve moral virtues—including trustworthiness—that,
since the publication of a 2013 Party Central Committee directive, have been
integrated across the full spectrum of governance, administration, and law
(Gow 2016; Lin and Trevaskes 2020). In keeping with this broader strengthen-
ing of law and morality in governance, the State Council, in drafting the 2014

1 Also sometimes translated as “honesty,” “sincerity,” or “integrity.” In truth, no English


translation does the original Chinese justice. I translate it as “trustworthiness” in reference
to the sociological goals of the socialist core values, namely, the resolution to China’s
perceived moral crisis. Given the academic baggage associated with Western conceptions of
trust, this translation is still far from perfect.

China Law and Society Review 6 (2021) 181–210


Reform and China’s Social Credit Law 187

Planning Outline, elevated the concept of trustworthiness, while expanding


the original remit of the scs as a market tool to raise levels of trustworthiness
in three further areas: the judiciary, government, and society. Collectively, they
became known as the “four general spheres” [si da lingyu 四大领域] of social
credit, constituting a new “broad” [guangda 广大] definition of the concept.
Since 2014, social credit has been applied as a core technology in the fusion
of the ccp’s moral and legal agenda, imbuing the population with the socialist
core values. In December 2016, the State Council (2016a) issued its Guiding
Opinions on Further Integrating Socialist Core Values ​​into the Construction of
the Rule of Law, which propose strengthening the scs, in particular its mecha-
nisms of rewards and punishments as a way of integrating its trustworthiness
agenda with broader rule of law goals (Lin 2019). In May 2018, this was followed
by a Legislative Amendment Plan for the Integration of Socialist Core Values​​
into the Construction of the Rule of Law, which called for greater research on
credit-based punishment and reward mechanisms as a way of raising literacy
about trustworthiness and compliance throughout society (Central Committee
of the ccp 2018).

Socialist Rule of Law


A core focus of the scs since its founding has been to bolster compliance with
rules and judgments in the market and society. For many years, the Chinese
judicial system has been plagued with difficulty in enforcement [zhixing nan
执行难], one of “three difficulties” outlined in the Supreme People’s Court’s
(spc) plans for reform (Supreme People’s Court Monitor 2016). The fourth
Five-Year Plan for Court Reform (2014–2018) explicitly mentioned the need to
“establish a legal system for credit supervision, deterrence and punishment of
judgement defaulters” (Supreme People’s Court 2015).
This doubling down on judicial enforcement can be understood in the con-
text of a broader emphasis on the “rule of law” [fazhi 法治] since the historic
fourth plenum of the eighteenth Party congress in 2014 (Central Committee of
the ccp 2014). The plenum marked a new departure in the Jiang-era concept
of “governing the nation according to the law” [yifa zhiguo 依法治国]. The rule
of law would no longer stand only for adherence to legal procedure and account-
ability but also for the primacy of the Party over all state functions, transforming
its political will into law (Creemers and Trevaskes 2020). Wang Wei (2021) has
described this process as the elevation and institutionalization of “soft” policy
objectives and social norms—such as morality—into “hard” laws.
This drive to assert the Party’s “leadership over everything” at the heart of
Xi’s ideological canon has relied extensively on the scs as an implementation
tool. The Decision published after the fourth plenum in 2014 proposed a series

China Law and Society Review 6 (2021) 181–210


188 knight

of goals, principles, and requirements for advancing its rule-of-law agenda,


including plans for “strengthening the construction of social trustworthiness,
improving credit records on adherence to the law for citizens and organiza-
tions, perfecting reward mechanisms for law-abiding trustworthiness as well as
punishment mechanisms for illegal or untrustworthy behaviors.” This was fur-
ther bolstered in December 2020 with the publication of the Implementation
Outline for the Construction of a Rule of Law-Based Society (2020–2025), in which
the scs was explicitly linked to building trustworthiness and improvement in
enforcement mechanisms in the judicial system as part of achieving the ccp’s
broader political goals.

Principle and Practice

The scs can best be distilled to a single principle and practice multiplied across
the jurisdictions in which it is operational. In its simplest characterization, the
system seeks to ensure that “those deemed untrustworthy in one area shall be
restricted everywhere” [yichu shixin, chuchu shouxian 一处失信,处处受限].
This phrase appears repeatedly in social credit discourse and documents, as
well as in senior Party speeches and the media.
In practice, the scs remains remarkably low tech, relying primarily on the
gathering and sharing of black-lists of offending parties, as well as some red-
lists detailing meritorious behavior for the application of cross-jurisdictional
punishments and rewards. The origins of this come directly from financial
credit recordkeeping principles; the compilation of ledgers detailing an enti-
ty’s past behavior so as to judge the likelihood of honoring future contractual
arrangements. In 2009, the spc began to apply these ideas in pursuit of its own
governance agenda, assembling lists of individuals who had failed to perform
statutory duties imposed by a judicial or administrative authority and sharing
them with other legal bodies. By 2013, the spc was labeling these individuals
“untrustworthy persons subject to judicial obligations” [shixin beizhixing ren
失信被执行人] (sometimes translated into English as “judgment defaulters”),
and, by 2016, it was sharing its lists of “untrustworthy persons” as a condition of
a newly signed memoranda of understanding [hezuo beiwanglu 合作备忘录]
(MoUs) with forty-three other government ministries (Supreme People’s Court
et al. 2016). In parallel, the State Council adopted the spc’s terminology and
expanded the definition of what it meant to be “untrustworthy.” In addition to
defaulting on judicial decisions, other acts that seriously endanger the health
or safety of the people, seriously undermine market competition or societal
order, or endanger national defense interests, including evasion of military

China Law and Society Review 6 (2021) 181–210


Reform and China’s Social Credit Law 189

service were also defined as “seriously untrustworthy” and liable to blacklisting


through the newly established scs (State Council 2016b, Article 9). The State
Council’s 2016 guidelines (hereafter, the 2016 Guiding Opinion) were quickly
followed by another Guiding Opinion issued by the National Development and
Reform Commission (ndrc) and the People’s Bank of China (PBoC, the central
bank) in 2017, which sought to standardize blacklisting practices, empowering
provincial-level governments to adopt and adapt their own lists of “untrust-
worthy” behavior (ndrc and PBoC 2017).
The logic for the list system is straightforward. At both the central and
provincial level, every department is free to interpret this top-level guidance
(within certain parameters) and determine which violations of their rules are
serious enough to warrant inclusion in its “seriously untrustworthy subjects
list” [yanzhong shixin zhuti mingdan 严重失信主体名单], more colloquially
known as a “blacklist” [hei mingdan 黑名单]. The details on blacklisted enti-
ties are then published online on that department’s website as well as on the
Credit China platform managed by the ndrc. Through a network of dozens of
MoUs that emerged after the spc’s original document in 2016, those details are
then shared with other departments, which are then required to jointly impose
“disciplinary measures” [chengjie 惩戒] within their own jurisdiction (known
as the “joint punishment system” [lianhe chengjie zhidu 联合惩戒制度]). This
approach has two goals: first, to increase the cost of untrustworthy behavior
through additional layers of punishment and, second, to gradually transition
from a post-event regulatory regime to a prevention model in which “untrust-
worthiness” is reduced across the board (Shen Y. 2019).

Test Forth and Learn


The rollout of the blacklisting and joint punishment system relies on a highly
decentralized model of decision-making and localized pilots (Knight 2020;
Liu 2019). The foundational documents of the scs—the State Council’s 2014
Planning Outline and 2016 Guiding Opinion—are purposefully light on detail
beyond a general direction, providing no concrete path for implementation.
This is typical of Chinese governing practice, in which overarching mandates
are set centrally, but decisions as to how those priorities should be executed
are devolved across all levels of government as a way of fostering policy inno-
vation, appraising cadre performance, and shielding higher authorities from
potential criticism as part of a broader system of guerrilla-style “adaptive gov-
ernance” (Birney 2014; Heilmann and Perry 2011).
According to a recent study, some forty-seven institutions are currently
involved in the implementation of the scs, collectively publishing thousands
of individual documents (Drinhausen and Brussee 2021). At the top of the

China Law and Society Review 6 (2021) 181–210


190 knight

policy-making pyramid are the ndrc and the PBoC, which were both leads at
the Interministerial Joint Conference on the Construction of the Social Credit
System, as well as the State Council in charge of coordinating cross-depart-
mental collaboration. Bridging ministry-specific regulations, some fifty MoUs
guaranteeing mutual recognition of blacklists and joint punishment had been
released by October 2020 (Wu and Liu 2020). At lower levels of China’s govern-
ing apparatus, hundreds of local systems best represented by sixty-two model
programs have proliferated, each offering up its own interpretation of social
credit (Credit China 2021). At least twenty cities now employ some degree
of social credit scoring in their municipal systems. This decentralization is a
feature, not a bug, allowing officials to adapt the system where applicable to
respond to local governance needs.
In so doing, the scs has become an essential and adaptable enforcement
tool across the full spectrum of Chinese governance. The system has been
applied in the regulation of a huge number of areas, from environmental pro-
tection to labor practices to food safety. As the scale of the challenge posed
by Covid-19 became apparent, the scs was retooled in a variety of innovative
ways (Knight and Creemers 2021). According to Wang Wei (2021), at least thir-
ty-five laws and forty-two administrative regulations currently incorporate
social credit construction, for example, China’s advertising, food safety, soil
pollution prevention, foreign investment, biosecurity, and vaccine safety laws.
The system is also a mainstay of other major policy announcements includ-
ing the fourteenth Five-Year Plan for Informatization (Central Commission
for Cybersecurity and Informatization 2021) and the Rule of Law 2020–2025
roadmap (Central Committee of the ccp 2020).
This “evolving practice of control” (Creemers 2018) resulted in a system
epitomized by high levels of regional variation as a result of its application in
a nearly unlimited number of fields. However, this unfettered expansion has
come at the expense of uniformity and moderation, causing bottlenecks in the
system’s standardization (both technical and legal), which has the potential to
threaten its legitimacy in the eyes of its critics and the wider public. What was
merely a feature is now—in the minds of some—becoming a bug.

Just One Big Basket Case?

The ever-expanding scope of the scs has become highly controversial among
some of its earliest architects in the financial and legal realms. Writing in
Caixin in 2020, Wang Lu, a former deputy director of the PBoC’s Credit
Information Center, wrote a blistering ten-part series in which he claimed that

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Reform and China’s Social Credit Law 191

the concept of credit has been “hijacked” [bangjia 绑架] as it has become ever
more “generalized” [fanhua 泛化]. This “generalized credit” has morphed into
a “basket” [kuang 筐], into which lazy officials dump all manner of govern-
ance challenges. The primary driver of this mission creep has been an intrinsic
desire among government officials to expand their power wherever possible as
well as to solve an overwhelming number of social problems in one fell swoop.
This couples with cynicism among a few influential scholars, misunderstand-
ing and complacency among the general public, poor checks and balances in
decision-making, and prevailing norms that continue to view the loss of social
reputation as more serious than being found guilty of an actual infringement
of the law. Wang laments the fact that the principle of listening to foreign crit-
icism has lost value in Chinese minds compared to the early days of reform
and opening. Although Western understandings of the scs may have flaws, a
healthy fear of Orwellian overreach could serve the Chinese system well. The
scs is without any global precedent; but, he asks, just because something has
Chinese characteristics, “does that [necessarily] make it a good thing?” Wang
concludes that more harm than good is being done by the scs in terms of its
impact on social governance, the rule of law, and financial credit. It serves no
one other than those in government who benefit from the power grab that it
facilitates (Wang 2020).
Wang’s view of the scs is more extreme than most, but China’s community
of legal scholars has not shied away from criticizing the system. A lack of clarity
over even the most foundational social credit principles has caused significant
debate among academics, policy makers, and local officials. A close reading of
the system’s founding mantra—“those deemed untrustworthy in one area shall
be restricted everywhere”—indicates some of the inherent concerns. What
does it mean to be “untrustworthy”? What kind of restrictions should “untrust-
worthy” entities face? And what is the meaning of “everywhere”? What, if any,
are the limits of the scs?

Untrustworthy
Given its centrality to the scs, one can be forgiven for believing that the word
“untrustworthy” [shixin 失信] has a succinct, rules-based definition. Yet for all
its popularity in policy-making circles and the media, until recently the term
appeared in only a small number of actual laws, none of which clearly defined
it. The 2016 Guiding Opinion that established the joint rewards and punish-
ments system provided only a list of “seriously untrustworthy” behaviors, as
outlined above. However, the document did not give any detail on simply
“untrustworthy” actions, requiring only that “trustworthy and untrustworthy

China Law and Society Review 6 (2021) 181–210


192 knight

behaviors be scientifically designed in strict accordance with laws, regulations


and policies” (State Council 2016b, Article 2).
In line with the decentralized model of rollout and implementation
detailed above, this vagueness has led to a variety of interpretations by a mul-
titude of actors about the meaning of shixin. Some of these interpretations
have proved highly controversial, especially when concerning behaviors that
are not strictly illegal and would typically be regulated by administrative law
or even social norms. In some locations, frequent job hopping, mobile phone
arrears, failure to properly dispose of household waste, and parking fee evasion
are all included in an individual’s credit record (The Paper 2019a). In March
2019, the Hangzhou Metro announced that fare dodgers caught three or more
times would have such behavior recorded in their municipal personal credit
file (Hangzhou Daily 2019). Later that year, the Beijing Metro confirmed that
anyone other than infants or patients caught eating on board would suffer
the same fate (Beijing Municipal Commission of Transport 2019). As part of
the broader response to Covid-19, many localities made noncompliance with
pandemic prevention measures, such as wearing a face mask and self-isola-
tion, punishable using the scs (Knight and Creemers 2021). This scope creep
has led some to characterize the scs as an “overlegalization of moral rules”
(Zhou 2020) in which the state increasingly seeks to intervene in daily moral
and ethical life where previously it would have relied simply on social norms
(Dai 2019).
In the minds of many legal scholars, it is clear that neither the letter nor the
spirit of the 2016 Guiding Opinion have been followed with great precision. The
main criticism is that the expansion of the system at its edges risks the devel-
opment of a “moral dossier” [daode dang’an 道德档案] in which an ever-wider
range of behaviors is recorded, infringing individual rights in the process (Fu
2016; Luo 2018a). These concerns have been bolstered by the expansion of the
scs to include positive incentives as well as penalties. Since the Summit for City
Credit Construction under the theme of “Credit Makes Life Happier” in 2018,
many local programs have introduced an expanding range of positive behav-
iors in their systems, rewarding individuals with incentives, from discounts on
public utilities to improved access to government services and jobs. In certain
subdistricts of the city of Rongcheng, public-spirited actions such as clearing
snow from the sidewalk, teaching calligraphy classes, and pruning overgrown
bushes in a neighborhood have all been recorded in a qr code—based social
credit system and rewarded with annual cash prizes (Knight 2020). One par-
ticularly controversial extension to the scs is the inclusion of blood donations
as praiseworthy behavior to be encouraged and rewarded through the credit
system. Taking its lead from local experiments in Jiangxi, Zhejiang, Jiangsu,

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Reform and China’s Social Credit Law 193

and Shandong Provinces, in November 2019 the National Health Commission


issued a document to call for local authorities to promote voluntary donations
of blood through rewards issues as part of the scs such as enhanced access to
finance, citing the act as a “manifestation of the socialist core values,” trigger-
ing significant public concern (The Paper 2019b). A month later, the author-
ities in Guangxi issued a document explicitly citing the scs as a tool to be
used for driving blood donations (General Office of the People’s Government
of Guangxi Zhuang Autonomous Region 2019). The fear of an evolving “moral
dossier” has not been mitigated by the fact that several politicians have explic-
itly called for its creation (Luo 2017).
According to many scholars, this lack of clarity as to which behaviors should
or should not be included within the scope of the scs risks undermining the
integrity of the scheme as a whole. A strong advocate of stricter limits on
the system’s implementation, Luo Peixin (2016), the deputy director of the
Shanghai Legislative Affairs Office, argues that administrative offenses such as
traffic misdemeanors as well as moral transgressions are poor indicators of a
person’s ability to abide by contractual obligations or repay loans—that is, the
original aims of the scs—and therefore should not be included in the system.

Restrictions
The scope and severity of restrictions leveraged in the scs historically have
also been poorly defined. Shen Kui (2019), a professor of constitutional and
administrative law at Peking University, has distinguished six types of punish-
ments meted out by the scs at various levels:
1. Credit file entries: The lowest level and weakest form of punishment,
recording untrustworthy behavior in personal credit files, is primarily for
the purpose of documenting infringements so they can be punished else-
where in the system.
2. Cautionary warning: These have little long-term impact on people
assigned punishment and serve simply to remind them of the rules. This
can take the form of a “trustworthiness chat,” as seen in Jiangsu Province
(General Office of the People’s Government of Jiangsu Province 2013,
Article 14), in which sanctioned individuals discuss their behavior in a
formal meeting with officials.
3. Increased supervision: Individuals are subject to a greater level of inspec-
tion and surveillance. This kind of punishment is seen most often in the
regulation of businesses, such as in Chongqing’s Labor Security regula-
tions (Chongqing Human Resources and Social Security Bureau 2017,
Article 7).

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4. Reputational damage: This can include measures such as revoking pub-


lic titles and publishing details of offenses online or in the media more
broadly. The goal is not to inflict any kind of legal punishment but to
harm an individual or company’s standing in society. Examples of this
naming-and-shaming can be seen in many local programs.
5. Disqualification: One of the most common forms of scs punishment,
this involves restricting a person’s access to public resources and job
prospects. The 2014 Planning Outline includes several examples of how
this can be applied.
6. Restrictions on personal freedoms: This takes many forms, but the best-
known example is the limit on purchasing tickets for airlines and high
speed trains and the consumption of luxury goods by those on the spc
list of judgment defaulters.
Shen (2019) argues that at least three of these penalties—reputational damage,
disqualification, and restrictions on personal freedoms—are in direct conflict
with the principle of “administration according to the law” [yifa xingzheng 依
法行政]. This concept requires that administrative penalties—including those
covered by the scs—must be bound by existing legislation. They must not
detract from the legitimate rights of individuals without a legal basis for doing
so, nor should they violate existing rules. Finally, although administrative agen-
cies at different government levels are permitted some latitude in setting their
own regulations, they must not act in a way that violates the rules laid down
by a higher authority. In Shen’s eyes, the way in which the scs has evolved has
fallen afoul of these requirements in a variety of ways.
The manner in which the system has expanded over time has led many
scholars to question its legal basis and formal legitimacy as a whole. Shen
Yilong (2019) criticizes the way in which social credit documents at both the
departmental and local level stem mostly from administrative rules that are
too low in importance to command the kind of authority required to fully
achieve the system’s goals. Peng Chun (2021) has pointed out that, although
the behaviors most commonly considered untrustworthy and the associated
disciplinary measures do have an explicit legal basis—and thus are techni-
cally legal—their inclusion in the scs causes several additional problems.
Peng criticizes the practice of punishing both the companies and the indi-
vidual employees responsible for the same infringement, as stated in the 2016
Guiding Opinion. Broader questions of proportionality have ignited significant
debate as extreme scs penalties have garnered media attention (Shen K. 2019).
Administrative law states that punishments must be commensurate with the
activity they are sanctioning, but this is undermined by the introduction of
new disciplinary measures in the scs (Wang 2017).

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Reform and China’s Social Credit Law 195

The legality of credit supervision and punishment has been the most ten-
dentious at the edges of the system. The huge variety of social credit norms
and regulations at the local level has frequently been accused of contra-
dicting national-level policy in the pursuit of specific governance goals. For
example, Article 20 of an early version of Jiangsu Province’s scs measures
(General Office of the People’s Government of Jiangsu Province 2013) prohib-
ited “untrustworthy” individuals from taking civil service exams for a period of
three years. At the time, this went above and beyond what was strictly required
by national legislation, and Article 24 of the Civil Servant Law (2005) stipu-
lates that these prohibitions apply only to those who have been found guilty
of criminal offenses or previously dismissed from office. Naming-and-shaming
“untrustworthy” citizens has also generated significant controversy, as it is seen
as infringing the constitutional right to dignity and privacy. To many schol-
ars, the practice since the 1980s of publicly parading undesirable individuals
despite bans on doing so represents an unwelcome throwback to Cultural
Revolution—era denunciations. In 2006, police in Shenzhen were roundly
criticized for a forced march of hundreds of sex workers and clients in a district
town square (Shi 2008). Similar parades by Covid-19 rule-breakers in 2021 were
met with similar criticism (Guangxi Daily 2021).

Everywhere
As detailed above, the interpretation and adoption of the system across all lev-
els of government and geography has been a key pillar of the scs rollout. But
this has also created significant challenges. In a practical sense, a lack of stand-
ardization in the technical design of the scs has led to the creation of local
“information islands” [xinxi gudao 信息孤岛] of data collected, formatted, and
stored in a manner that is not conducive to sharing with other departments or
governments (Chen and Greitens 2022). In times of crisis, in which an inher-
ently transregional response is needed, such as the Covid-19 pandemic, these
siloes have become a significant barrier to effective governance (Knight and
Creemers 2021). The need to store and share data at scale also presents sizable
cybersecurity challenges (Creemers 2022).
From a legal perspective, this lack of standardization has also resulted in
geographic disparity in the level of punishment for the same behavior. This is
particularly evident in locations where credit scoring systems have been intro-
duced, where actions—whether positive or negative—might be evaluated
differently from a neighboring system. More seriously, the sharing of blacklist
information for punishment across multiple jurisdictions has raised additional
questions concerning the potential for double jeopardy, that is, duplicated
punishment for the same behavior. A core tenet of the 2016 Guiding Opinion on

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196 knight

joint disciplinary measures was to increase the cost of untrustworthy behav-


iors by ensuring multiple levels of punishment. Yet according to Peng Chun
(2021), this principle has no legal basis or formal legitimacy. He points out that
China’s Legislation Law does not grant the State Council the ability to make
decisions directly on the rights and obligations of citizens. Although Article
80 of the law stipulates that departmental regulations based on decisions by
the State Council may do so, the joint disciplinary measures currently have no
such basis in the form of departmental rules. Peng’s legal critique strikes at the
heart of social credit’s modus operandi.
Many of the debates surrounding the limits of the scs have centered on
which data should or should not be collected and included in the system. One
area that has proved particularly contentious is the publication of information
that is otherwise private, without an individual’s consent. In Jiangsu Province,
for example, Article 7.1 of its Measures for the Punishment of Untrustworthy
Natural Persons (General Office of the People’s Government of Jiangsu
Province 2013) defines nonpayment of public utility bills as shixin behavior to
be recorded and sanctioned through the scs. Similarly, in November 2020, the
Jiangxi branch of China Telecom announced that customers who were guilty
of payment arrears would have their details logged in the provincial scs, trig-
gering significant public backlash. Commentators have pointed out that the
automatic gathering of such information is problematic (Luo 2016). Indeed,
the PBoC Credit Information Center rejected the use of utility bill payments
as an indicator of creditworthiness due to mitigating factors, such as questions
over the liability of a tenant versus a landlord, and the rights of a resident to
refuse payment for inadequate service provision. These nuances cannot be
captured in an automated system that seeks to punish nonpayment regardless
of circumstances.

Reform and Tightening Up

In light of these issues, many scholars have long called for significant reform of
the scs. Some, such as Wang Lu (2020), propose a complete abandonment of
“generalized” credit and a return to the system’s financial roots. Others, while
less extreme, have called for at least a recentering of the principles laid out in its
top-level plans (Tan 2017). Many legal reformists argue that scs punishments
are in need of new limitations “appropriate to the nature, circumstances, and
degree of social impact of the untrustworthy behavior” in question, without
relying on the need for cross-industry, -domain, or -departmental restrictions
(Wang 2019; Yuan 2019). One thing on which all scholars have agreed is the

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Reform and China’s Social Credit Law 197

need to establish greater formal legitimacy for the scs through increased leg-
islative efforts in the form of standardized social credit regulations led by the
central government so as to tidy up local rules and ensure uniformity in legal
grounding across the board (Dai 2019; Hu 2017; Luo 2018b; Shen K. 2019; Wang
2018).
These calls have not gone unheeded. As early as the Two Sessions in 2019,
some two hundred delegates spearheaded by officials from Jiangsu and
Guangdong Provinces signed a motion to accelerate social credit legislation,
citing the need for much greater protection of credit rights and interests.
Specifically, they proposed that entities be given explicit rights to know which
information is being gathered about them and to object to that collection,
as well as the right to have data deleted. Although the State Council as well
as several ministries have accumulated significant theoretical and practical
experience through their policy of experimentation, the signatories believed
that the time for formal legal reinforcement had come (Credit China 2019a).
In response, the National People’s Congress Work Report (Li 2019) highlighted
that the scs was in a special category of projects, those for which the legisla-
tive conditions had not yet been met, and further research is required. A few
months later, in July 2019, Lian Weiliang, the deputy director of the ndrc,
stated that although “personal credit points can continue to be rewarded for
trustworthy acts, they must not be used for punishment” and that “low credit
points cannot be used to restrict natural persons from enjoying their basic
rights to public service or other rights conferred by law” (Credit China 2019b).
The scs key planning bodies have taken an increasingly hawkish stance. In
August 2019, spokesperson Meng Wei stated: “We have noticed that [the scs
in] some places violates laws and regulations by incorporating behaviors that
are not applicable within the scope of the punishment mechanism for untrust-
worthiness within personal credit records. We are correcting and dealing with
the situation without further delay” (Credit China 2019c). Meng then laid out
a strategy of “three prevents” [san ge fangzhi 三个防止]—that is, to avoid
the generalization and expansion of (1) which kinds of behavior are defined
as untrustworthy and their incorporation into credit records and (2) further
blacklists and other penalties as well as the creation of (3) further credit-build-
ing measures, such as personal credit points and scores (Credit China 2019c).
The goal was to create an scs within China’s legal system, not in parallel to it.
This evolution in rhetoric has been reflected in a raft of new regulations
to update and upgrade the scs beyond the original 2014 Planning Outline.
In July 2020, the ndrc published a major update, addressing many (though
not all) of the concerns that had been simmering for several years. The draft
Guiding Opinions on Further Regulating the Scope of Public Credit Information,

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Untrustworthy Punishments and Credit Repair, and Establishing Long-term


Mechanisms for the Construction of Trustworthiness (ndrc 2020) clarified
which data should be considered credit information, when the data should be
shared publicly and how, which penalties could be applied, and how a credit
record could be repaired (China Law Translate 2020). In particular, the new
draft rules further standardized blacklisting and penalties, ensuring that disci-
plinary measures have a legal foundation and are bounded by additional con-
straints. If officials believe that a particular law is not tough enough, they must
lobby for changes in the law, rather than simply inventing their own adminis-
trative penalties through the scs.
Six months later, it was the State Council’s turn. In November 2020, Premier
Li Keqiang spoke about the need for standardization and improvement of
the scs disciplinary procedures along three key lines. First, all punishment
meted out through the system must have a legal basis. Second, it should be
applied only when necessary and limited in scope, for specific and legiti-
mate purposes. Third, punishment must be proportionate to the offense, not
excessive or punitive (State Council 2020a). This was quickly followed by
the publication of the Guiding Opinions on Further Improving the Restraint
System for Untrustworthy Behavior and Establishing Long-Term Mechanisms for
Construction of Trustworthiness (State Council 2020b), which confirmed that
the designation of “untrustworthy” behaviors must fall within the scope of
existing laws, administrative regulations, and policy documents published by
the ccp Central Committee and the State Council. Central ministries are per-
mitted to develop relevant standards for areas in which such documentation
does not yet exist. All systems were to be evaluated before the end of 2021, with
iterations that did not comply with these requirements then ceasing to be in
effect. In this announcement, the government signaled its intention to apply
international best practices to the scs, reining in many of its more extravagant
versions.
To build on the reform agenda laid out in these two documents, some key
additional measures were published in 2021. In May, the ndrc issued its Draft
Measures for the Management of Credit Repair, providing further guidance on
recovery from a negative credit report (ndrc 2021). In July, the ndrc and PBoC
released two more draft documents, which aimed to further clarify the scope
of the scs. The National Social Credit Information Basic Catalogue (ndrc and
PBoC 2021a) elaborates on the July 2020 ndrc Guiding Opinions, instructing
government departments to provide clear definitions of the data that they col-
lect. According to the Basic Catalogue, eleven kinds of information should be
logged, primarily concerning market-related data and administrative infringe-
ment. Although such catalogues have existed at the local level for several years,

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Reform and China’s Social Credit Law 199

this was the first attempt to define and standardize social credit information
at the national level. Local governments are still permitted to publish sup-
plementary catalogues within certain limits, though four kinds of sensitive
information are designated as off-limits unless they are expressly permitted:
(1) state or business secrets; (2) personal petitions, and information on ille-
gal dog breeding, blood donation, veterans affairs, or religion; (3) information
about arrears owed on property service payments, public transportation fare
dodging, running red lights, or illegal construction, and (4) information about
bribery. Dovetailing neatly with the Basic Catalogue, a second document,
the National Basic List of Disciplinary Measures for Untrustworthiness (ndrc
and PBoC 2021b) was designed to standardize the range of penalties for the
performance of “untrustworthy” acts. The Basic List contains fourteen disci-
plinary measures divided into three categories. The first category comprises
punishment carried out by state bodies that reduce the rights and interests
of concerned parties, such as restricting access to the market, employment,
education, consumption, or travel. The second category consists of less severe
punishments that do not expressly curtail rights, such as limiting access to
finance or preferential policies or share data on untrustworthy behavior. The
third category concerns measures carried out by third parties rather than gov-
ernment agencies, such as market-related inspections. Again, as with the Basic
Catalogue, local governments are allowed to issue their own updates to these
measures, but only within the limits of existing laws and with the express per-
mission of higher authorities.
Until late 2022, still noticeably absent from the social credit canon was an
actual Social Credit Law [shehui xinyong fa 社会信用法]. On November 14,
however, this changed, as the ndrc, PBoC, and other relevant departments of
the Interministerial Joint Conference published a draft version of its Law on
the Construction of a Social Credit System (ndrc and PBoC 2022) for public
comment. This document was the culmination of many years of development.
Discussions on the shape and scope of a potential law began in August 2019,
when a departmental draft was drawn up by approximately sixty policy makers
from across the spectrum of central ministries, local governments, universi-
ties, and credit service agencies at a forum hosted by the ndrc (China Credit
Magazine 2021). At least ten additional symposiums on a Social Credit Law
have been held since then, with the ndrc establishing a Social Credit Law
Working Group in August 2020. The group reportedly held frequent meetings
with legal experts, industry associations, and local governments to discuss
the basic concepts, principles, and practicalities that should be included in
the final document. This led to a seminar on social credit legislation in Qufu,
Shandong Province, on December 7, 2020, when Lian Weiliang of the ndrc

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200 knight

revealed that a preliminary draft Social Credit Law was in the hands of rele-
vant ministries and localities for consideration (China Credit Magazine 2021).
Wang Wei (2021), a law professor at the Central Party School who had obtained
this first version of the Social Credit Law, wrote at the time that the document
expressed a continuation of the trends outlined in the various scs documents
that had been published since 2019.
Now that the draft law has been released to the public, this has been con-
firmed to be the case. The November 2022 document is best described as a
synthesis of the many, more-transformative announcements published over
the previous thirty-six months. The purpose of the draft is clearly to resolve
persistent and long-standing criticisms of the system’s legal basis, confirming
that, as per the July 2020 Guiding Opinions, the power to define “untrustwor-
thy” acts remains solely the purview of the central government, with no room
for interpretation at the local level. Similarly, the details on punishment do
little to elucidate the Basic Catalogue and Basic List of 2021. The document
includes some new particulars on information governance, security, and pri-
vacy but, otherwise, adds little to the established regulatory literature other
than providing a single north star of guidance that reflects broader develop-
ments in policy thinking on social credit.

A Long and Winding Road

The road to a draft Social Credit Law has been long. The journey began twenty
years ago with its first high-level mention at the sixteenth Party congress
and has taken many turns since then, with the twentieth Party congress now
behind us. The scs reflects the ccp’s evolving governing logic, fusing patterns
of neosocialist informatization with a reassertion of state-arbitered morality
and the Party’s “leadership over everything” through the rule of law. In part as
a response to a perceived crisis of trust in both the market and society more
broadly, these governing logics converged in the publication of the 2014 Planning
Outline, which called for an expansion of the existing “narrow” credit system
to incorporate an ever-expanding range of information for the regulation of a
wider variety of areas. Since 2014, the scs, its blacklists, and its joint punish-
ment system have relied heavily on a decentralized model of experimentation
at the departmental and local level as a way of fostering innovation at speed.
This has led many local administrations to stretch the meaning of social credit
in response to a range of governance challenges. This “generalization” of the
scs has led to highly controversial mission creep. Many scholars have ques-
tioned the system’s legality and, therefore, legitimacy. They increasingly view

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Reform and China’s Social Credit Law 201

aspects of the scs as being in direct conflict with attempts to institutionalize


national governance through the rule of law, primarily through the infringe-
ment of a variety of individual rights. Calls for reform have been made for sev-
eral years, beginning in academic circles though gaining greater momentum in
policy-making bodies. As the 2014–2020 Planning Outline is now firmly past its
sell-by date, the State Council and the ndrc have published a raft of new doc-
uments, including a draft law, to upgrade the system by addressing much of the
criticism leveled against it. Together, these documents standardize and clarify
some of the system’s core principles—specifically, which data should be col-
lected within the scope of social credit, what punishment can be carried out in
the name of the scs, and what the legal limits of the system’s reach should be.
These reforms have largely ended the kind of unfettered experimentation that
characterized the first phase of social credit development, while still leaving
the door open to a degree of interpretation and policy innovation.
What next for social credit? The publication of the draft Social Credit Law
has offered some—though not complete—clarity about many of the still-un-
answered questions concerning the scope of the scs. This preliminary history
of the Social Credit Law and its antecedents shows the plurality of voices and
actors that have participated in the creation of social credit as a technology
of governance. In keeping with a broader pattern of recentralization in Xi
Jinping’s “new era,” the scs will become increasingly institutionalized. This
should not be mistaken as an attempt to scale back social credit; rather, it
should be seen as an effort to standardize data collection and management
as the principles of credit-based supervision and governance are applied in an
ever-wider variety of contexts.

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