A Study Of The Legislation Of Government Information Disclosure

As the basic strategy of ruling China by law filters into people's minds, the administrative organs, which used to take confidentiality as its guiding principle, tend to be transparent and bright. To protect the citizens'right to know, to institutionalize the disclosure of government information and to reinforce the guarantee have become a general trend of the times, especially under the aim of reforming the political institution by way of reconstructing a"service-oriented"government in China. If"Provisions of Government Information Disclosure"announced by the People's Government of Guangzhou Municipality in 2003 was the first to advocate the legislation of government information disclosure,"Regulations of Government Information Disclosure of the People's Republic of China"issued by the State Council in 2007 was a milestone in the development of legislating the disclosure of government information. However, there is still a lot more to do both in theory and practice while developing. Therefore, it is necessary to make a study of the legislation of government information disclosure, which plays a significant role in its theoretical research and relevant legislative practice.This thesis consists of five parts.The first part mainly introduces the historical origin of the legislation of government information disclosure. Sweden, the earliest country to legislate the government information of administrative organs, issued"Freedom of the Press Act"in 1766, which first stipulated the government information disclosure in the form of law all over the world. In the 200 years that followed, relevant legislations of all the countries in the world all remained stagnant in various degrees. This situation didn't change until the Second World War occurred when freedom and democracy became popular. America, in particular, formed a comparatively perfect law system of government information disclosure after revising"Freedom of Information Act"several times and other supporting laws. The relevant legislation in China began in the middle of 1980s, step by step in accordance with the development of our market economy. In the initial stage, the legal provisions of government information disclosure mainly scattered in the department laws. The"Provisions of Government Information Disclosure"announced by the People's Government of Guangzhou Municipality in 2003 began the independent and systematic period of the relevant legislation in China. The"Regulations of Government Information Disclosure of the People's Republic of China"issued by the State Council in 2007 marked an epoch in the development of the legislation of government information disclosure.The second part focuses on discussing the fundamental concept of the legislation of government information disclosure, which is composed of open-end government, uncorrupted administration and protecting human rights. The concept of open-end government means that the administrative act of the government should guarantee the participation of citizens and the balance of powers, while the former refers to a legal disclosure of government information to enable citizens to involve in the political decision-making and government management; the latter refers to a legal knowing of government information, which enables the citizens to confront the government's administrative power through their right to know, so that the public power will not be abused. The concept of uncorrupted administration refers to a necessary supervision to the government act to avoid the corruption of power. The concept of protecting human rights refers to the protection of the citizens'right to know in the legislation of government information disclosure, because the right to know is widely considered to be one of the basic human rights theoretically. Although it is not included in the basic rights of the Constitution in China, the protection of the citizens'right to know in the legalization of government information disclosure is self-evident.The third part stresses on the discussion of the relevant legislation development in some developed countries and their marked features. It is enlightening to the legislation of government information disclosure by doing so. We can find out some features by understanding the development of the legislation of government information disclosure in some developed countries such as Sweden, Britain and America: first of all, not only do they emphasize on the construction of the institution, but they also focus on the overall social effect of the legislation, namely, the combination of the government information disclosure and the modification of the pattern of government management. Furthermore, the legislation development of developed countries varies in accordance with the ruling concept of the ruling Party. Therefore, the ruling concept of the ruling Party is critical in the legislation of government information disclosure. Finally, the value appeals pursued by the governments in developed countries in the legislation of government information disclosure can be divided into positive appeal and negative appeal. The negative appeal only hopes to prevent corruption by institutionalizing government information disclosure, whereas positive appeal not only requires an uncorrupted government, but also a general involvement in government management and a real democratic decision through an institutionalized guarantee of information disclosure. The legislative construction of government information disclosure in developed countries is about to leap from negative appeal to positive appeal. Therefore, their relevant legislative experience is of great value in the legislative construction of government information disclosure in China.The fourth part analyses the current legislative situation of government information disclosure in China in terms of legislation of local government information disclosure and legislation of central government information disclosure. Legislation of local government information disclosure talks about the current legislative situation and features by analyzing the"Provisions of Government Information Disclosure"by the People's Government of Guangzhou and Shanghai Municipalities. The features can be summarized as follows: the provisions of guiding principles tend to be convergent while those of details are various, and those of procedures are emphasized. The major problem lies in the influence of the traditional concept of confidentiality, the excessive discretion power of the government and the imbalance of legislative level. As for the legislation of central government information disclosure, this thesis discusses the historical background, legislative framework and institutionalized feature based upon the"Regulations of Government Information Disclosure of the People's Republic of China"issued by the State Council in 2007. The background includes three points: constructing a transparent government to serve the needs of the government; the institutional demands after joining WTO to be brought in line with international practice; the inevitable choice to fight public power. The legislative framework proves the scientificity of"Regulations of Government Information Disclosure"in terms of main body, extension, regulation and control and cooperation, and supervision system. This part focuses on introducing the institutional features of the regulation and shows its advance by analyzing the guiding principles, regulation and control institutions and measures of publicity.The last part discusses the existing problems and complete scheme of the legislation of government information disclosure in China. The existing problems include the unclear distinction of the nature of the"right to know", the lack of necessary clarified explanation of some relevant articles, deficiency of supporting legislative constructions and a low level of legislation. We should solve the problems as follows: firstly, establish the right to know as a basic right, accept it as a basic human right of the citizen in the legislative concept, even though the time is not ripe to put the right to know into our Constitution. Secondly, balance the relation between publicity and confidentiality and take Weng'an Mass Incident to prove the importance of it. Meanwhile, clarify and explain some common vocabularies about law, such as"national security","individual privacy"and so on, to prevent the abuse of public power because of misunderstanding. Thirdly, it is necessary to speed up the construction of supporting legal regulations. The early-stipulated"Archives Law"and"Law of the People's Republic of China on Guarding State Secrets"should be revised timely to adjust to the necessary needs of the legislation of government information disclosure. Meanwhile, the long call for issuing"Individual Privacy Protection Law"and"Business Secret Protection Law"should be done as soon as possible. Finally, we should speed up the legislation of"Disclosure of State Organs Information Law"."Regulations of Government Information Disclosure", the existing legislation of central government information disclosure of supreme legal authority, is only confined to government information, which means it is of no binding to other organs of public power such as judicial organ, procuratorial organ and ruling Party as well. Therefore, it is necessary to speed up the stipulation of"Disclosure of State Organs Information Law"and bring the state organs or even the organs of the ruling Party into the legal system of information disclosure, which can provide a more extensive guarantee of protecting citizens'legal rights to promote a real democratic ruling and scientific ruling.