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