Point of View | On the "Third Norms" to Contain Artists' Anomie Behavior -- Also Comment on the Disciplinary Measures in the "Administrative Measures for Self-discipline of Artists in the Performance Industry (Trial)"
Published:
2021-11-30
In recent years, the phenomenon of well-known artists breaking the law and losing morality has repeatedly appeared in the newspapers, which has aroused widespread concern from all walks of life. Since 2014, the relevant competent departments of the state have issued a number of "ugliness restriction orders", aiming to curb the anomie behavior of artists, so as to make up for the lack of relevant legislation in the field of entertainment in China. In addition to the "rigid" system of "heteronomy" and "flexible" self-discipline measures, the author believes that from the perspective of "common law", we can try to construct and improve the "third norm", give full play to its special effect of "combining strength and softness", and help curb artists' anomie behavior. 1. what is the "third norm"? According to the author's opinion, the expression of "the third norm" was first put forward by Ms. Xu Xun, a well-known media law expert in China. She believes that the law is open, stable and strongly binding, but it is generally not focused on a certain industry, but has universal applicability, so its specific operability is slightly weaker; although professional ethics has varying degrees of operability, But it is basically not mandatory, which reduces the binding force; although policies, disciplines and experience have strong operability and binding force, they do not conform to the principle of the rule of law because of their weak openness, at the same time, its normative value is greatly reduced due to its instability. She proposed that the advantages of the above various normative forms can be absorbed, summarized and recombined to produce an open, industry consensus, clear content, relatively stable, written expression, strong operability and certain mandatory The industry standard can be called "the third norm" or "industry regulation". The "third specification" mentioned in this article is different from the general "industry standard". The latter is a general business standard for a specific field formulated and issued by industry associations or other competent departments according to the relevant specifications of the National Standardization Committee. The purpose is to standardize and unify the business without direct punitive content for violators. For example, the "Performance Ticketing System Service and Technical Specification" (WH/T 93-2021) issued by the Ministry of Culture and Tourism on July 19, 2021 and implemented on August 19, stipulates the technical requirements, functions, server management, communication protocols and data formats of interfaces such as the performance ticketing management system and ticketing sales system, and puts forward basic requirements for the data collection interface of performance ticketing data, it does not involve punitive provisions that violate the industry standards. China's entertainment industry pays more attention to the construction of general industry standards. According to the statistics of the "industry standard" part of the government information disclosure of the Ministry of culture and tourism, as of November 22, 2021, a total of 127 national level industry standards have been established, but there is no "third specification" in a complete sense ". 2. the "third norm" in the "measures for the self-discipline management of performers in the performance industry (for Trial Implementation)" On February 5, 2021, the China Performance Industry Association (hereinafter referred to as the "China Performance Association") issued the "Administrative Measures for the Self-discipline of Performers in the Performance Industry (Trial)" (hereinafter referred to as the "Administrative Measures"), which will be implemented from March 1. Article 1 of the "Administrative Measures" clearly stated the purpose of regulating the professional behavior of artists, that is, "in order to continuously improve the professional quality of entertainers in the performance industry (hereinafter referred to as'entertainers'), regulate the professional behavior of entertainers, and strengthen the self-discipline management of entertainers. Establish a good professional image of entertainers and promote the healthy development of the performance industry". The content of Article 1 also shows that the nature of the "Administrative Measures" is a "self-discipline" norm, which is another important measure for our country to curb artists' anomie behavior from the perspective of self-discipline. It is worth noting that although the "Administrative Measures" belong to self-discipline norms as a whole, there are also some mandatory norms, especially punitive measures, which can be classified as the "third norm. For example, Article 5 of the "Administrative Measures" stipulates that if an entertainer violates the practice norms, the China Performance Industry Association shall implement self-discipline and disciplinary measures within the scope of its practice in accordance with these Measures. Article 6 also stipulates the basic principles for the implementation of self-discipline and disciplinary measures, that is, the implementation of self-discipline and disciplinary measures for entertainers who violate the norms of practice shall follow the principles of objectivity, impartiality, openness and transparency, fairness and prudence, adhere to the combination of education and punishment, adapt the circumstances of violations to the disciplinary measures, and carry out work in accordance with the rules and regulations on the basis of facts. The second chapter of the "Administrative Measures" "Practice Standards" expresses the "should be" and "do not do" of entertainers from both positive and negative aspects. In view of the fact that the "do not do" behavior is closely related to the artist's anomie behavior and is the "Administrative Measures" The applicable behavior objects of disciplinary measures need to be analyzed. Article 8 of the "Administrative Measures" stipulates 15 kinds of "do not do" behaviors, mainly illegal behaviors, supplemented by unethical behaviors; while listing typical behaviors, it is also supplemented by unethical and illegal "bottom-up" clauses. Strong coverage. From the perspective of the two more representative "bottom-up" clauses, there is no simple "one size fits all" approach, but it is screened according to the situation. For example, item 14 of Article 8, "other circumstances that violate ethics or social public order and good customs and cause serious adverse social impact", especially emphasizes the condition of "causing serious adverse social impact"; Item 15, "other circumstances expressly prohibited by laws and administrative regulations", emphasizes the hierarchy of "laws and administrative regulations" and the two key elements of "express prohibition. These two provisions also show that we should adhere to the principle of examination when determining the "do not do" behavior in the "management measures", so as to avoid arbitrarily expanding the "anomie behavior. The "Administrative Measures" established a "moral construction committee" composed of relevant personnel inside and outside the industry, which enhanced the credibility of disciplinary measures. Article 15 of the "Administrative Measures" stipulates four disciplinary measures that can be taken, including "conducting criticism and education", "disqualification of participating in various related evaluations, commendations, rewards, and subsidies in the industry", and "according to the severity and severity of the circumstances of the entertainer's violation of the professional norms. Degree of harm, the implementation of 1 year, 3 years, 5 years and permanent and other different degrees of industry boycott" "in cooperation with other industry organizations to implement cross industry joint punishment". The first two are "soft" measures, while the latter two are "hard" measures. The four measures can be implemented separately or in combination. The "hard" measures against the behavior of "do not do" are mandatory and belong to the "third norm" in a sense, which not only restricts the performance rights of anomie artists, but also restricts the relevant rights of publicity and promotion, which plays an irreplaceable role in curbing the anomie behavior of artists. On August 15, 2021, the China Performing Arts Association issued the first "Disciplinary Announcement" after the implementation of the "Administrative Measures": "This Association will morally reprimand the improper behavior of actor Zhang Zhehan in visiting the Yasukuni Shrine, and in accordance with the" Performing Arts in the Performance Industry "According to the provisions of the Administrative Measures, member units are required to boycott their practice." On October 22, the China Actors Association once again issued a "disciplinary notice" to boycott Li Yundi, who committed illegal prostitution. In addition, Articles 17 and 18 of the "Administrative Measures" also specifically stipulate the disciplinary procedures, especially granting the rights of anomie artists to defend and return requests, forming a relatively complete disciplinary and relief procedure. On the whole, although the "Administrative Measures" belongs to the category of self-discipline norms as a whole, it has added a "third norm" that is mandatory for punishment, and the disciplinary procedures are fair and reasonable, and the disciplinary measures are in line with the principle of proportionality, and there is no collective resistance in general industries. The problem of violating the anti-monopoly law. 3. extensive construction and improvement of the industry-wide "third norms" The "Administrative Measures" of the China Performing Arts Association is only applicable to specific artists, that is, "performers engaged in music, drama, dance, folk art, acrobatics and other forms of live theatrical performances in China", although its applicable "scope of employment" Relatively broad, but still cannot cover all artists. In addition to the China Performance Association, there are other industry associations related to artists in China. In order to implement the requirements of the "Notice on Carrying out Comprehensive Management Work in the Cultural and Entertainment Field" issued by the Central Propaganda Department in September 2021, and give full play to the role of industry punishment, the "third norm" for all artists' behaviors should be drafted and implemented as soon as possible in the entire industry. Make up for the lack of legislation in the cultural and entertainment field, and give full play to its advantages of strong pertinence, good operability, stability and compulsion, as soon as possible to effectively curb the high incidence of illegal artists such as misconduct.
In recent years, the phenomenon of well-known artists breaking the law and losing morality has repeatedly appeared in the newspapers, which has aroused widespread concern from all walks of life. Since 2014, the relevant competent departments of the state have issued a number of "ugliness restriction orders", aiming to curb the anomie behavior of artists, so as to make up for the lack of relevant legislation in the field of entertainment in China. In addition to the "rigid" system of "heteronomy" and "flexible" self-discipline measures, the author believes that from the perspective of "common law", we can try to construct and improve the "third norm", give full play to its special effect of "combining strength and softness", and help curb artists' anomie behavior.
1. what is the "third norm"?
According to the author's opinion, the expression of "the third norm" was first put forward by Ms. Xu Xun, a well-known media law expert in China. She believes that the law is open, stable and strongly binding, but it is generally not focused on a certain industry, but has universal applicability, so its specific operability is slightly weaker; although professional ethics has varying degrees of operability, But it is basically not mandatory, which reduces the binding force; although policies, disciplines and experience have strong operability and binding force, they do not conform to the principle of the rule of law because of their weak openness, at the same time, its normative value is greatly reduced due to its instability. She proposed that the advantages of the above various normative forms can be absorbed, summarized and recombined to produce an open, industry consensus, clear content, relatively stable, written expression, strong operability and certain mandatory The industry standard can be called "the third norm" or "industry regulation".
The "third specification" mentioned in this article is different from the general "industry standard". The latter is a general business standard for a specific field formulated and issued by industry associations or other competent departments according to the relevant specifications of the National Standardization Committee. The purpose is to standardize and unify the business without direct punitive content for violators. For example, the "Performance Ticketing System Service and Technical Specification" (WH/T 93-2021) issued by the Ministry of Culture and Tourism on July 19, 2021 and implemented on August 19, stipulates the technical requirements, functions, server management, communication protocols and data formats of interfaces such as the performance ticketing management system and ticketing sales system, and puts forward basic requirements for the data collection interface of performance ticketing data, it does not involve punitive provisions that violate the industry standards. China's entertainment industry pays more attention to the construction of general industry standards. According to the statistics of the "industry standard" part of the government information disclosure of the Ministry of culture and tourism, as of November 22, 2021, a total of 127 national level industry standards have been established, but there is no "third specification" in a complete sense ".
2. the "third norm" in the "measures for the self-discipline management of performers in the performance industry (for Trial Implementation)"
On February 5, 2021, the China Performance Industry Association (hereinafter referred to as the "China Performance Association") issued the "Administrative Measures for the Self-discipline of Performers in the Performance Industry (Trial)" (hereinafter referred to as the "Administrative Measures"), which will be implemented from March 1. Article 1 of the "Administrative Measures" clearly stated the purpose of regulating the professional behavior of artists, that is, "in order to continuously improve the professional quality of entertainers in the performance industry (hereinafter referred to as'entertainers'), regulate the professional behavior of entertainers, and strengthen the self-discipline management of entertainers. Establish a good professional image of entertainers and promote the healthy development of the performance industry". The content of Article 1 also shows that the nature of the "Administrative Measures" is a "self-discipline" norm, which is another important measure for our country to curb artists' anomie behavior from the perspective of self-discipline.
It is worth noting that although the "Administrative Measures" belong to self-discipline norms as a whole, there are also some mandatory norms, especially punitive measures, which can be classified as the "third norm. For example, Article 5 of the "Administrative Measures" stipulates that if an entertainer violates the practice norms, the China Performance Industry Association shall implement self-discipline and disciplinary measures within the scope of its practice in accordance with these Measures. Article 6 also stipulates the basic principles for the implementation of self-discipline and disciplinary measures, that is, the implementation of self-discipline and disciplinary measures for entertainers who violate the norms of practice shall follow the principles of objectivity, impartiality, openness and transparency, fairness and prudence, adhere to the combination of education and punishment, adapt the circumstances of violations to the disciplinary measures, and carry out work in accordance with the rules and regulations on the basis of facts. The second chapter of the "Administrative Measures" "Practice Standards" expresses the "should be" and "do not do" of entertainers from both positive and negative aspects. In view of the fact that the "do not do" behavior is closely related to the artist's anomie behavior and is the "Administrative Measures" The applicable behavior objects of disciplinary measures need to be analyzed.
Article 8 of the "Administrative Measures" stipulates 15 kinds of "do not do" behaviors, mainly illegal behaviors, supplemented by unethical behaviors; while listing typical behaviors, it is also supplemented by unethical and illegal "bottom-up" clauses. Strong coverage. From the perspective of the two more representative "bottom-up" clauses, there is no simple "one size fits all" approach, but it is screened according to the situation. For example, item 14 of Article 8, "other circumstances that violate ethics or social public order and good customs and cause serious adverse social impact", especially emphasizes the condition of "causing serious adverse social impact"; Item 15, "other circumstances expressly prohibited by laws and administrative regulations", emphasizes the hierarchy of "laws and administrative regulations" and the two key elements of "express prohibition. These two provisions also show that we should adhere to the principle of examination when determining the "do not do" behavior in the "management measures", so as to avoid arbitrarily expanding the "anomie behavior.
The "Administrative Measures" established a "moral construction committee" composed of relevant personnel inside and outside the industry, which enhanced the credibility of disciplinary measures. Article 15 of the "Administrative Measures" stipulates four disciplinary measures that can be taken, including "conducting criticism and education", "disqualification of participating in various related evaluations, commendations, rewards, and subsidies in the industry", and "according to the severity and severity of the circumstances of the entertainer's violation of the professional norms. Degree of harm, the implementation of 1 year, 3 years, 5 years and permanent and other different degrees of industry boycott" "in cooperation with other industry organizations to implement cross industry joint punishment". The first two are "soft" measures, while the latter two are "hard" measures. The four measures can be implemented separately or in combination. The "hard" measures against the behavior of "do not do" are mandatory and belong to the "third norm" in a sense, which not only restricts the performance rights of anomie artists, but also restricts the relevant rights of publicity and promotion, which plays an irreplaceable role in curbing the anomie behavior of artists. On August 15, 2021, the China Performing Arts Association issued the first "Disciplinary Announcement" after the implementation of the "Administrative Measures": "This Association will morally reprimand the improper behavior of actor Zhang Zhehan in visiting the Yasukuni Shrine, and in accordance with the" Performing Arts in the Performance Industry "According to the provisions of the Administrative Measures, member units are required to boycott their practice." On October 22, the China Actors Association once again issued a "disciplinary notice" to boycott Li Yundi, who committed illegal prostitution. In addition, Articles 17 and 18 of the "Administrative Measures" also specifically stipulate the disciplinary procedures, especially granting the rights of anomie artists to defend and return requests, forming a relatively complete disciplinary and relief procedure.
On the whole, although the "Administrative Measures" belongs to the category of self-discipline norms as a whole, it has added a "third norm" that is mandatory for punishment, and the disciplinary procedures are fair and reasonable, and the disciplinary measures are in line with the principle of proportionality, and there is no collective resistance in general industries. The problem of violating the anti-monopoly law.
3. extensive construction and improvement of the industry-wide "third norms"
The "Administrative Measures" of the China Performing Arts Association is only applicable to specific artists, that is, "performers engaged in music, drama, dance, folk art, acrobatics and other forms of live theatrical performances in China", although its applicable "scope of employment" Relatively broad, but still cannot cover all artists. In addition to the China Performance Association, there are other industry associations related to artists in China. In order to implement the requirements of the "Notice on Carrying out Comprehensive Management Work in the Cultural and Entertainment Field" issued by the Central Propaganda Department in September 2021, and give full play to the role of industry punishment, the "third norm" for all artists' behaviors should be drafted and implemented as soon as possible in the entire industry. Make up for the lack of legislation in the cultural and entertainment field, and give full play to its advantages of strong pertinence, good operability, stability and compulsion, as soon as possible to effectively curb the high incidence of illegal artists such as misconduct.
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