Abuse Of Government Information Disclosure Of Application Right And Regulation

February 27,2015,Nantong City Gangzha District Court held a press conference to inform the "Lu Hongxia v.Nantong City Development and Reform Commission government information public reply"(hereinafter referred to as "Lu Hongxia case"),and expressed support Abuse of government information disclosure of the right to act,then the Supreme Court will be published in the case of the 11 th issue of the "Supreme People's Court Bulletin"(hereinafter referred to as the "Bulletin").This is the first regulation of government information disclosure right of abuse of the referee,the major newspapers,media,network coverage,causing a sensational social effect,aroused the enthusiastic discussion of all sectors of society.Because the case published in the 1985 Bulletin published in the Gazette has the effect of quasi-case,and then the same case has a reference or demonstration of butterfly benefits,so Lu Hongxia case into the "bulletin" brought reference role model,triggered the law Theoretical and practical circles of universal concern.Imagine,in our country's administrative organs of the rights of the people to protect the weak background,but Nantong City Gangzha District Court of the applicant for the abuse of the right to apply for rights and regulations,I believe that the court's solution path and approach is debatable and scrutiny.In the absence of legal rules,the judiciary can regulate the government's public information on the disclosure of government information;secondly,in this case in the case of justice in the case of the law,Whether the authorities can set the dispute in this case regardless of the initiative to take the initiative to examine the plaintiff's behavior,which is detrimental to the judiciary as a neutral fair and just the role of justice messenger;Finally,if we recognize the case of the application of the right to apply for abuse,There will be abuse of the standards of the judiciary and excessive restrictions on the right to apply for government information disclosure.Supreme Court of the judge issued a document also recognized by Lu Hongxia case concerns and criticism has a certain value,but still lack of Lu Hongxia case of personal understanding,accurate interpretation.Of course,it is undeniable that the referee is worthy of a lot of aspects: first,the judiciary dare to challenge the task,in the face of difficulties heroic forward,and strive to solve the problem and disputes.The court said that the solution to the phenomenon of abuse of rights is the responsibility of the jurisdiction.This is a very good way to play the role of the court to resolve disputes,but also to the power and the right to set the border,even if the legislation does not specify the circumstances,to accessible,trial and error,to accept the criticism of the work attitude,Judging disputes in the judiciary is worthy of recognition and encouragement.Second,the possibility of abuse of rights may be necessary and necessary to be bound.This is worthy of our affirmation because the legislator does not take into account that the rights will be abused and need to be regulated from the legislative level.This also confirms that the law is lagging behind the society,and the judiciary provides useful experience for improving the legal system.Thirdly,taking into account the facts of this case,we have taken out the facts that need to be considered for the abuse of the right to apply for government information disclosure.The application of the whole case has been proved to violate the legislative purpose and constitute the abuse of the application right.May determine the legitimacy of the standard of abuse of the right to apply the legitimacy of benevolent see benevolent wise see wisdom,appreciation of those who have a lot of critics.At least the judge's trial and error spirit and frankly accept the attitude of the judge is irreconcilable.Therefore,the author as an administrative law professional direction of the students,but also may be the administrative counterparts,government information disclosure application applicant,pay special attention to the field of government information disclosure of this new trend,also carried out to some extent.In particular,the reasons for the prohibition of the right to abuse the right to make an application for information disclosure,the analysis of the relevant controversial concepts in the field of government information disclosure,and whether the judges in the Lu Hongxia case have found that the abuse of the standard and the applicable law are appropriate and the author's opinion Standards and other issues carried out some analysis,put forward their own treatment of this problem humble opinion.The main ideas and content of the paper are as follows:The introduction mainly introduces the background and the basis of the topic selection,the research status quo at home and abroad,the research method and the research innovation.The author of the reason why the choice of "government information disclosure application right to abuse the identification and regulation" in the field of content,because in theory,China has no special literature and legislation to conduct research;in practice has been the problem,But also to the urgent need to solve the situation.So from the theoretical significance and practical value of the two considerations to choose this topic.On the domestic and international research status quo,the author mainly selected a typical representative of foreign countries,the legislative model,including the British application of the legislative model,the application of New Zealand and the application of the information angle of the legislative model,the Australian applicant's legislative model The In fact,the Australian legislative model has been social out,introduced this model is to make future generations detours.In view of the lack of domestic legislation and literature research,we can learn from the experience of judicial practice,that is,Lu Hongxia case trial court to explore the judicial experience,so the judicial experience written in domestic and foreign research.With the object of study and the experience of predecessors,what method is used to demonstrate the object of this study.In this paper,empirical analysis methods,comparative analysis methods,value analysis methods and other means to demonstrate.Finally,the research innovation of this paper conceives the standard and its constituent elements of the abuse of government information disclosure.The first part puts forward the reasons for the abuse of government information disclosure right.From four aspects: 1.abuse of information disclosure of the right to apply for the origin and status quo.This has been the case since 2008,the court in a case-by-case manner to take the lead in this issue put forward their own solutions and methods,the relevant community is to reflect on the court solution,but also actively consider the best way to deal with this phenomenon.2.the right of the right to apply for protection and protection.The abuse of the right to apply must be regulated,but the act of suspected abuse of the right to apply a high degree of tolerance,as much as possible to protect the realization of the right.3.Administrative authorities need to reduce the burden and restrictions.If there is indeed an abuse of the right to apply to the administrative organs overwhelmed,the need for abuse of the right to apply,but there are restrictions on the need for power.The discussion and effect of the case.Supporters have,oppose also have.But the biggest practical effect is in the future referee,it played a demonstration role.The second part analyzes the controversy about the related issues in the implementation of information disclosure.Including the definition of what is the government information,the initiative to open and the relationship with the application of open,"three needs" understanding,not(free of public),the right to apply for government information disclosure rights.The third part introduces the abuse standard of construction application right.By analyzing the abuse standard of the right of application right in Lu Hongxia,the author draws the author's intention to abuse the right of application right,that is,the intention of malicious exercise of the right intention;the objective must have the act of exceeding the right to reach the right of abuse;Deviate from the legislative purpose of the law and do not conform to the social,the purpose of the market or the intolerable boundaries of society.The fourth part discusses the path of correcting the abuse of information disclosure right.The author through the extraction of information disclosure of the right to abuse the composition of the elements,and judicial practice in the relevant facts can be matched.The purpose of this design is to prevent the discretion is too large,arbitrarily exercise power,and guide the applicant to exercise the right to apply for information disclosure.The right from the right to the legal rights and then to the right of the process of this process is difficult and tortuous,perhaps trampled on the blood to fight to achieve is difficult.The realization of the right to open the information is not only related to the people's right to know and vital interests,but also to supervise the work of the government,the construction of the rule of law has important significance,so clear the abuse of information disclosure standards have become particularly urgent and need.