Viewpoint | Rule of Law: The Fundamental Path of Restrictions on the Employment of Bad Artists

In recent years, some entertainers' tax evasion, drug abuse, prostitution and other illegal phenomena have been frequently seen in the newspapers. Among them, there are many well-known and even famous artists, such as Zheng, Wu Moufan, Li Moudi, etc., which caused widespread concern in the society. While vigorously advocating "Shuangxin of virtue and art", the relevant departments of our country have also imposed penalties such as restrictions on the employment of bad artists, which has achieved a certain deterrent effect. However, these measures have also caused some controversy, and the implementation effect is general, failed to fundamentally curb the high incidence of artists' bad behavior. The author believes that under the background that our country is vigorously strengthening the legislation in the cultural field, it is necessary to further think about the path of restrictions on the employment of bad artists from the perspective of the rule of law, and use the thinking of the rule of law to solve this problem.

Up to now, the normative documents on general employment restrictions formulated by the relevant competent authorities of our country for bad artists involve the entire entertainment industry, focusing on media such as radio, film and television, and the Internet, with special emphasis on "blocking" bad artists from the broadcast end. Although these provisions are "both accurate and ruthless", there are still at least the following problems from the perspective of the rule of law.

(I) the practice of restricting playback only with content related to specific subjects is inconsistent with China's current laws and regulations.

China's laws and regulations in the field of radio, film and television have always adopted a broadcast regulation method for "content" rather than "subject. for example, article 32 of the "regulations on the administration of radio and television" makes an enumerative expression of "banned contents": "those that endanger the unity, sovereignty, and territorial integrity of the state", "those that endanger the security, honor, and interests of the state", "those that incite national division, those that undermine national unity", "divulge state secrets", "slander or insult others", "promote obscenity, superstition or exaggerate violence" and "other contents prohibited by laws and administrative regulations". Article 16 of the "Film Industry Promotion Law" and Article 25 of the "Film Management Regulations" also stipulate similar "prohibited content". In other words, the prohibited objects are specific prohibited content rather than content related to the illegal subject. However, the current "ban" and "block" regulations of the relevant competent authorities are all aimed at content involving bad artists. As for whether the content itself belongs to "prohibited content" such as "Radio and Television Management Regulations", "Film Industry Promotion Law", "Film Management Regulations", etc. For example, Article 1 of the notice of the general office of the State Administration of press, publication, radio, film and television on strengthening the production and dissemination management of radio and television programs, film and television dramas and network audio-visual programs (no 100 [2014] of the new radio and television office) stipulates that "all levels of radio and television broadcasting institutions should adhere to the correct orientation, It is not allowed to invite drug users, prostitution and other illegal and criminal actors to participate in the production of radio and television programs; it is not allowed to produce or broadcast radio and television programs that focus on the illegal and criminal acts of hype entertainers, celebrities, etc., and suspend the broadcasting of movies, TV dramas, and various types of movies and TV series produced by illegal and criminal actors such as drug abuse and prostitution as the main creators. Radio and television programs and advertising programs endorsed." The above provisions obviously only use the relevance between programs and bad artists as the ban standard, which is inconsistent with the ban standards of the aforementioned laws and regulations and lacks legal basis.

(II) fails to balance the relationship between employment restriction and right to work

On October 12, 2021, the folk singer Song Dongye, who was canceled for drug abuse, sent a long article for himself, saying that drug abuse was also tempted because of pressure. He is only doing his own job now and should not be deprived of reasonable and legal work. right. Song Dongye's remarks involve an important legal issue: how to balance the relationship between the restrictions on the employment of bad artists and the right to work?

Generally speaking, the right to work is not only an important human right for people to obtain the means of survival and livelihood, but also a right to protect people's participation in society. For this reason, the right to work, as a human right recognized by the international community, is embodied in many international human rights conventions and is generally recognized in the constitutions of various countries. Article 42 of China's current constitution stipulates the right to work, that is, the right to work. The right to work is not a purely economic right but a social right at the same time. Among the four specific powers, such as the right to independent employment, the right to fair remuneration, the right to labor protection and the right to non-discrimination, the right to non-discrimination is the most relevant to the restrictions on the employment of bad artists discussed in this paper. Specifically, in employment discrimination, there is a less concerned criminal record discrimination, that is, discrimination against workers who have been punished for violation of discipline, law and crime, and refuse to hire workers only because they have a record of violation of discipline, law and crime. At present, there is no special law on the elimination of criminal records in China, but there are already provisions in some laws to protect the right of workers not to be discriminated against, such as article 52 of the Anti-Drug Law, which stipulates: "Drug addicts shall not be discriminated against in school, employment and access to social security. The relevant departments, organizations and personnel shall provide necessary guidance and assistance to drug addicts in such areas as schooling, employment and access to social security." Article 70 also stipulates the legal liability for violating Article 52: "if the relevant units and their staff discriminate against drug addicts in terms of enrollment, employment and social security, the education administrative department and the labor administrative department shall order them to make corrections; if they cause losses to the parties concerned, they shall be liable for compensation according to law." Although certain local anti-drug regulations provide for restrictions on the employment of bad artists, they are only limited to a certain period of time. For example, Article 14 of the Shanghai anti drug regulations, which came into effect on April 1, 2016, stipulates that "in accordance with the relevant provisions of the state, radio, film and television, literary and art groups and relevant units shall not invite people who have been investigated and dealt with by public security organs for drug abuse for less than three years or who have not yet given up drug addiction to participate in the production of radio and television programs, or hold or participate in literary and art performances; movies, TV dramas, radio and television programs and commercial advertising programs that the aforementioned personnel participate in as the main creators shall not be broadcast." Article 31 of the Shandong Anti-drug Regulations, which came into effect on January 1, 2018, has similar provisions.

Judging from the restrictions on the employment of bad artists by the relevant competent authorities in China, there is basically no mention of the protection of the right to work of bad artists (especially those who have been punished by relevant laws). For example, the expressions such as "no" and vague "suspension" in the above-mentioned "Notice", as well as the "Notice of the General Office of the State Administration of Radio and Television on Further Strengthening the Management of Literary and Art Programs and Their Personnel" (Radio and Television Office issued [2021] No. 267) The expressions such as "resolutely resist illegal and unscathed persons" have actually canceled the job opportunities for bad artists to continue to engage in the industry. This lack of provisions to balance the relationship between restrictions on employment and the right to work fails to take into account the necessary right to work for the majority of bad artists who still have room for education to recover, which is not conducive to their return to society after a certain period of prohibition.

(III) Lack of Accurate Definition of "Bad Artist"

In the normative documents of China's relevant competent authorities on the restrictions on the employment of bad artists, the general description of what is an "artist" is adopted. For example, in the notice of the State Administration of press, publication, radio, film and television, the expression of "screenwriters, directors, actors and other radio, film and television practitioners" lacks accurate definition, especially whether it includes the important subject of "agent", It has caused difficulties in the follow-up punishment. At the same time, the more important what is "bad" also lack of precise definition. The aforementioned "Notice" only listed "illegal acts such as drug abuse and prostitution", while the "Notice on Carrying out Comprehensive Management Work in the Cultural and Entertainment Field" issued by the Central Propaganda Department in September 2021 greatly expanded the "bad deeds", including "sky-high film remuneration," Yin-Yang Contract ", tax evasion, illegal words and deeds" and other illegal acts, it also includes unethical behaviors such as "vulgar information hype, low political literacy, weak legal awareness, declining moral concepts, and unethical words and deeds. Due to the lack of a unified standard for "artists" and "bad deeds", it may lead to the arbitrariness and selectivity of law enforcement, and a tendency to deviate from the purpose of rule of law regulation.

The (IV) only exists on the "export" regulation of bad artists.

China's "Regulations on the Administration of Commercial Performances" only set up a qualification system for performance brokers, but not a qualification system for performers in the performance industry (only individual performers are required to hold a "personal commercial performance license for actors"). The qualification system makes the management of performance brokers in our country basically realize the whole process supervision from "import" to "export", which effectively improves the supervision strength and effect. As China has not yet set up the qualification system of entertainers, it is impossible to do a good job of supervision from the "entrance", which increases the difficulty of supervision in the later stage, especially makes the "export" face greater regulatory pressure. In recent years, the phenomenon of artists' bad behavior has been repeatedly prohibited, which is not unrelated to the lack of qualification system for entertainers.

The relationship between heteronomy and self-discipline measures is not well dealt with in the (V) of low level of relevant regulations, simple expression and poor handling of the relationship between heteronomy and self-discipline measures.

At present, with the exception of the Regulations on the Administration of Commercial Performances, which has only a few provisions concerning the restrictions on the employment of bad artists, most of the current and effective regulatory documents of the competent authorities on the restrictions on the employment of bad artists are presented in the form of "notices, for example, the aforementioned" Notice "issued by the State Administration of Press, Publication, Radio, Film and Television in 2014 and the Central Propaganda Department in 2021, and the" Notice of the Ministry of Culture and Tourism on Regulating Performance Brokerage Behaviors, Strengthening Actor Management and Promoting the Healthy and Orderly Development of the Performance Market "issued by the Ministry of Culture and Tourism in September 2021" (Ministry of Culture and Tourism [2021] No. 101). These "notices" are low-level, principled and simple, and are mostly emergency measures, making it difficult to fully realize the legalization of restrictions on the employment of bad artists.

At the same time, some performing arts industry associations in China have formulated a number of self-regulatory industry norms, such as the "self-discipline management measures for performers in the performance industry" issued by the China performance Industry Association (hereinafter referred to as "China performance Association") on February 5, 2021 and implemented on March 1. With regard to the restrictions on the employment of bad artists, the "measures" stipulate a "joint boycott system" with different periods, which is different from the "blocking" of the relevant competent authorities without a time limit ". How to deal with the "heteronomy" of the competent authority and the "self-discipline" of the industry association is also a problem that needs to be solved urgently.

(I) strictly limit artists and misdeeds

Artists, I .e. entertainers, are referred to as actors in the Regulations on the Administration of Commercial Performances. From the perspective of the industry, artists should be full-time or part-time subordinate to the performance industry. Performances include live performances and non-live performances (such as online performances), and do not include celebrities and stars who only belong to the sports industry or only belong to the broadcasting and hosting industry. Announcers, hosts and other people who are not part-time engaged in the performance industry. At the same time, the appropriate restrictions can be included in the scope of restrictions on the scope of the artist, you can refer to the current relevant laws and regulations adopted by the "creative staff" of this expression. The main creators are the artists who occupy the main role or play the main role in the performance, generally including the leading actor, host, guest, producer, screenwriter, director and so on. In addition, brokers who have a legal relationship with the creator should also be included in the scope of restricted practitioners.

With regard to misdeeds, the legal term "violation of the norms of practice" is recommended. For acts that can be restricted from employment, it is suggested that only illegal acts and serious immorality should be included rather than general moral violations. Specifically, it can be expressed as: "Artists shall abide by the professional norms and shall not commit the following acts: (1) intentionally commit a crime and be subject to criminal punishment; (II) soliciting or receiving remuneration significantly higher than 10 times or more than that of ordinary artists in the same position in the industry; (III) signing two or more contracts on the same matter in order to obtain improper benefits; (IV) evading taxes in violation of the law; (V) prostitution or whoring; (VI) use the Internet to engage in pornographic and obscene performances; (VII) deliberately vulgar hype in order to gain attention, and the circumstances are serious; (VIII) make serious inappropriate remarks on public affairs, and the circumstances are serious; (IX) life is corrupt, moral decay, and the influence is bad; (X) other illegal Or seriously unethical behavior."

(II) Properly Handle the Relationship between Employment Restriction and Right to Work

The core issue of the rule of law in the restriction of employment of bad artists is to solve the relationship between the restriction of employment and the right to work. Artists have different bad deeds, different restrictions on their employment, and the corresponding protection of the right to work is also different. In addition to substantive guarantees, procedural guarantees such as hearings, reconsideration, and administrative litigation should also be provided. The author suggests that, with reference to the above-mentioned local laws and regulations and the self-discipline regulations of the China Actors Association, the employment restrictions can be expressed as: "Artists who violate the employment norms shall be restricted in accordance with the law in their right to work in their own industry." according to the seriousness and consequences of artists' violation of the employment norms, the competent department can ban them from entering the industry for different periods of one year, three years, five years, five years, ten years and ten years, except as otherwise provided by law or administrative regulations." "All media are not allowed to broadcast any form of content such as programs and endorsements by artists during their industry ban period." "if the competent department intends to decide to ban artists who violate the practice norms, it may hold a hearing; if it intends to decide to ban artists from entering the industry for five years or more, it shall hold a hearing." "if an artist is not satisfied with the ban on entry into the industry imposed by the competent department, he may apply to the competent authority at the next higher level for reconsideration or bring an administrative lawsuit to the people's court where the competent authority that implements the ban on entry into the industry is located."

(III) may consider setting up an artist qualification system

As mentioned above, the "Regulations on the Administration of Commercial Performances" and the supporting "Measures for the Administration of Performance Brokers" establish a qualification system for performance brokers. The author suggests that in order to realize the whole chain management of artists, we can consider establishing the qualification system of artists to solve the problem that can only be managed in "export. Specifically, you can refer to the "Administrative Measures for Performance Brokers" and other relevant regulations to formulate the "Administrative Measures for Artist Qualification", which stipulates in detail the "Basic Conditions for Artist Qualification", "Artist Qualification Examination", "Artist Qualification Certificate", "Artist Qualification Certificate" Annual review, reissue and replacement "," Artist Qualification Certificate Cancellation "," Legal Liability "and other issues.

(IV) legislation in the form of laws or administrative regulations as soon as possible

The work of enacting, reforming, abolishing and interpreting laws and regulations in the field of propaganda and culture in China is in full swing, and great achievements have been made. At present, it is urgent to take the people as the center, focus on the hot spots of social concern, and solve the problem of restrictions on the employment of bad artists through legislation. At the legislative level, it is recommended that separate legislation be enacted in the form of administrative regulations first, and then the National People's Congress enacts laws when conditions are ripe. The formulation of administrative regulations by the State Council can solve the problems of multiple competent departments in the entertainment industry, and is also conducive to standardizing standards and law enforcement standards. For the laws in the cultural field that are being formulated, the design of guiding clauses should be done so that they are not omitted but can be unified. For example, the "Radio and Television Law", which is seeking opinions, has noticed that there is currently no way to restrict the broadcasting of content only because it is related to bad artists. Article 32 stipulates: "If the creators of radio and television programs violate relevant laws and regulations and cause adverse social impact, the competent department of radio and television under the State Council may impose necessary restrictions on the broadcasting of relevant programs." In accordance with the above-mentioned principle of legislative coordination, it is recommended to add: "...... necessary restrictions, laws or administrative regulations provide otherwise, from its provisions."

The Central Propaganda Department's "Notice on Carrying out Comprehensive Management Work in the Field of Entertainment" can be said to have once again sounded the clarion call to clean up and rectify the entertainment industry. In accordance with the requirements of the ''Notice'', taking the restrictions on the employment of bad artists as an important starting point, taking the main problems as the direction of resolution, using legal thinking, using legal tools, and taking the path of rule of law are the only choices to crack the endless emergence of bad artists in the entertainment industry.