A Study On Adverse Publicity By Administrative Agencies

In modern administrative law, adverse publicity becomes an increasingly prevalent activity. In order to achieve certain administrative goals, the agencies often choose to disclose the concerned party’s illegal facts, which were made or collected in the process of performing their duties, to the public. It not only plays the role of providing necessary information for the public by means of government information disclosure, but also acts as an administrative action so as to ensure the effective fulfillment of administrative obligations. In China, laws and regulations have set certain provisions to prescribe this new activity, and more and more agencies have employed it.Judging from the legal relation of adverse publicity, there exist three subjects, including the agency who disclose the information, the concerned party whose information was disclosed and the public who receive the information, which significantly differs from the existing administrative action. However, when reviewing the current theories that define the nature of this new activity, we can find that they completely ignore this difference, so it is imperative that we redefine its nature. Specifically, seeing from the relationship between the agency and the public, adverse publicity is an information providing activity, whose nature can be concluded as administrative factual action. According to its utilities to the public, this behavior can be further divided as two categories:public warning and ordinary information providing. And seeing from the relationship between the agency and the concerned party, adverse publicity becomes an administrative enforcement measure, so its nature should be defined as specific administrative action. According to its legal effect, this behavior can be further divided into two categories:administrative coercion and administrative punishment.As have been verified in Incidence of Nongfu Spring’s Containing Arsenic, Administrative agency’s incorrect disclosure of adverse information may bring fatal damages to the concerned parties and further reduce agency’s credibility, which indicate the importance of necessary legal controlling measures. This task can be concluded as two aspects. First, with detailed prescription of authority bases, public interest judgments, requirements of contents and procedural elements, we can build up the legal framework for adverse publicity. Second, we need to construct an entire and effective relief systems, including establish agency’s duties to revise its incorrect behavior, and improving the existing systems of administrative litigation and compensation. Only in this way can we ensure the proper operation of this new activity and the comprehensive protection of concerned people’s rights.