The Henan "Red Code" incident has been fermenting for many days, and related accountability procedures have also been launched. Most of the persons responsible for the case have been punished by the party and the government. However, regardless of the accountability and geometry, the potential damage caused by the incident itself has also been caused. Once the credibility of the government is damaged, it will take a long and tortuous process to recover. During the repeated and protracted epidemic, the public mood is already very easy to collapse, "red code" incident is tantamount to the people's doubts about public power and added heavy weight.

Author/Qi Xiaoling lawyer

The road to safeguarding rights lights up "red code"

Judging from the facts of the case, the "red code" incident itself is not complicated. Some village banks have problems accepting the acceptance, and the unfinished buildings in Zhengzhou are also facing doubts and torture from buyers. These problems could have obtained rights relief through legal rights protection activities. Because it may cause mass incidents, "some cadres" decided without authorization to "red code" the health codes of some bank depositors to prevent the people involved from carrying out rights protection activities in Zhengzhou, to achieve the goal of "maintaining social stability.

Objectively speaking, this approach seems to be in line with the "problem-solving" thinking, but it reflects the current operating logic of certain administrative powers. Obviously, it is natural for depositors or owners to go to the place where the infringement or property damage occurs because of the damage to their rights, and even during the epidemic, as long as they do not violate the epidemic prevention policy, this is a problem that the local government and relevant authorities must face and solve. However, it is worth pondering that the local government has used "epidemic prevention" means to label legitimate rights defenders as "unable to travel" in the form of "red code", so as to block the rights protection actions that should be supported. Since rights protection is legitimate, what is the local government afraid of? How to establish a correspondence between the information of defenders and health codes? Who controls the authority to assign codes to these depositors? What level has the authority to determine this authority? Should there be a boundary of authority? These issues did not subside with the end of the incident in the processing conclusion, but instead triggered people's fear of an unknown future.

The health code comes from the transfer of citizens' right to privacy.

In the handling results of the incident, descriptions such as "weak awareness of the rule of law and rules... are typical disorderly acts" are the qualitative basis made by the handling organs, but this obviously does not include the path and thinking logic of the relevant responsible persons. With the spread of the new coronary pneumonia epidemic, health codes are both a carrier for recording almost all personal information about everyone and a basic condition for people to exercise their rights. The state of the health code is associated with the privacy of citizens, who have the right to pass at the expense of some or even all of their privacy. This limitation of rights in a state of emergency is in line with the principle of proportionality, for the interests of higher order, such as social order, national security. Citizens, in cases where they may be subject to administrative coercion, contribute their privacy as a basic condition for epidemic prevention and in exchange for the freedoms they need. Then the government that exercises power should obviously protect the privacy and information security of citizens more carefully, and record the freedom of "exchange" of this part of rights in a true and objective manner, so as to ensure that citizens can be timely and effective after paying the "consideration". Enjoy rights. The motive of this public management function, which is based on the transfer of citizens' rights, and the ultimate purpose of exercising power, can only be to ensure the safety and order of citizens, and to prove the legitimacy of collecting and processing citizens' information with higher-level protection.

Random coding destroys the operating contract of "right-power".

　　However, in the "red code" incident, the logical starting point of power operation is changed to "maintaining government power" or "maintaining the power of a certain interest group", and under this logic, citizens are subject to compulsory requisition. The code system is labeled as "healthy or not", such as whether it is "harmful" to the stability of order ". Obviously, in a society ruled by law, from the determination of the state of emergency to the system design of the means of restricting rights, and then to the continuous operation of this measure, we should follow the general law of legal operation. If citizens trust the government and hand over their rights, they should obtain other rights brought about by the restriction of their rights-to scan codes in shopping malls, to eat noodles in noodle shops, and even to scan codes in public toilets. They all obtain the corresponding rights of shopping malls, eating noodles and going to the toilet by submitting personal travel records. In this process, the purpose of collecting information by the government is ultimately to ensure the safety of citizens, for example, in the epidemiological investigation, patients can be found timely and accurately, so as to intervene in different levels of measures to prevent or treat them. The mutual trust between the two sides has resulted in a win-win situation-citizens have been given limited rights of movement and relative freedom in the context of the continued epidemic, and the information contributed has been pooled into material for the Government to use in the fight against the epidemic. In the process of this "right-power" operation, the government is not only the initiator of restricting the rights of citizens, but also the protector of the rights of citizens. The government should ensure the appropriateness of the use of health codes and the rationality of the purpose of use. It should ensure that the exercise of the rights brought by the health code will not be improperly interfered. Unfortunately, the "red code" incident rudely and willfully broke this balanced logic of power, using the "dedication" of citizens based on safeguarding their own rights and contributing to epidemic prevention as a tool to maintain power and restrict rights.

In order to prevent legitimate rights protection activities, the relevant personnel are "given a red code" to restrict their freedom of passage, which is equivalent to "twice" infringing upon the legitimate rights of citizens-the information given by the health code should have been used to ensure travel safety, but at this time it has become a shackle to restrict rights and a tool that can be manipulated artificially. This is why legal scholars are shocked and worried about this act of private use of public devices, and then put forward the fundamental reason why the responsible person should bear the crime of illegal detention and abuse of power. Obviously, if the health code can be manipulated at will, then not only can we not guarantee the right to privacy, but also the freedom of passage can be deprived at any time. More than that, our claim to the legitimate rights of individuals is likely to become illegal or even criminal under the epidemic. We have become unpredictable about our future, and great uncertainty is bound to bring great insecurity.

"Anti-epidemic" is not a passport to "abuse of power".

In the context of the fight against the epidemic, the exercise of any power should not change the basic ecology of operation because of the impact of the epidemic, but should be more in line with the basic logic of the source of power and the guarantee of power, and subject to more stringent and demanding supervision. We often see incidents caused by inconsistent epidemic prevention policies in various places, some of which lead to unwarranted damage to the rights of the people, such as inconsistent policies of various epidemic prevention agencies, differences in identification standards, and so on. Like the "red code" incident, the deep-seated factor of these phenomena is the ideological influence of power standard -- the concentration of power and the lack of basic effective supervision. The abuse of power only needs an apparently feasible reason, and whether the rights of the relative person can be protected and whether they can be relieved seems to be a problem that does not need to be considered. But when the credibility of the government is damaged, when the people are no longer willing to contribute their rights, when the "power-right" binary interaction is about to collapse, what else can we rely on to build a united front for epidemic prevention, and a united front in any field? After all, those who can give others a "red code" have a health code of their own!

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Lawyer Presentation

Qi Xiaoling

Lawyer Qi Xiaoling, member of the Management Committee of Beijing Huixiang Law Firm, Dean of the Criminal Defense Research Institute, Doctor of Criminal Law of Renmin University of China, Postdoctoral of Criminal Law of Beijing Normal University. Distinguished researcher of Criminal Compliance Research Center of East China University of Political Science and Law, legal practice tutor of part-time master's degree students outside Beijing University of Chinese Medicine, member of Beijing Criminology Research Association, published five CSSCI journal articles and more than a dozen professional core journal articles, published many public number articles, participated in the compilation of professional works such as "Understanding of Criminal Law Provisions and Judicial Application" published by Law Publishing House in 2021, the article "Difficulties and Countermeasures in the Transfer of Community Rehabilitation to Compulsory Isolation and Drug Rehabilitation" published in the "China Anti-drug News" on January 29, 2021 was reprinted by "Learning Power. He has handled a series of major job-related crimes, economic crimes, financial crimes, underworld-related crimes, and cyber crimes.

Areas of Expertise:
Criminal Defense Business, Criminal Prosecution Business, Criminal Compliance Business

Typical cases:
1. The illegal operation of Chen Mou, chairman of a private equity fund investment management co., ltd. in Fujian;
2. The case of Zhao, chairman of a group in Beijing, illegally absorbing public deposits;
3. Case of illegal absorption of public deposits by the former chief operating officer of Xinhe Group Jinxin Network;
4. A contract fraud case involving Li, chairman of a Hong Kong group;
5. The case of copyright infringement by Wang Mou of a famous cultural media Co., Ltd. in Shanghai (no prosecution);
6. The case of an employee of an Internet giant company in Beijing damaging business reputation (no prosecution);
7. Jiangxi a network technology company Lu to help information network criminal activities (not to prosecute);
8. The case of illegal use of information network by the technical director of a bitcoin exchange in Hangzhou (cancellation case);
9. The bribery case of Yang, chairman of Longjiang Bank;
10. Case of bribery and dereliction of duty by Feng, director of the Environmental Protection Bureau of a county in Baoding City (sent back for retrial);
11. The bribery case of Chen Mou, assistant general manager of the head office of China Construction Bank;
12. Wang, general manager of an industrial co., ltd. in Ningxia, is involved in a major black case;
13. Jiang, the security chief of a group in Yingkou, is involved in a major black case;
14. A major case involving Wang, chief financial officer of an investment guarantee company in Lanzhou;
15. The bribery case of Ma Mou, executive vice mayor of a county-level city in Tangshan City (sent back for retrial).