The Identification Of Abuse Of The Right To Appeal In Government Information Disclosure

The government information disclosure system is the product of the development of modern administrative law.The system has become the focus of scholars at home and abroad,for it plays an important role in protecting the citizens’ right to know and creating a new type of government governance system.However,on the basis of statistical analysis of the current administrative litigation cases in China,it can be seen that government information disclosure cases occupy a large proportion in the whole litigation system.At the same time,there are also some citizens who have abused the litigation rights,which result in the damage to public interests.Abuse of the litigation rights to obtain government information has become a practical problem troubled administrative enforcement and administrative trial due to lack of the guidance of legal norms,which should be restricted by law.While the phenomena of abuse in government information disclosure cases will not only waste the public resources,but also alienate the government information disclosure system,weaken the judicial.There is urgent needs to restrict the abuse of litigation rights to obtain government information.The courts start to try to identify the abuse of litigation rights and stop it from entering the substantive judgment.However,due to the lack of uniform standards,judges have greater discretion in the process of identification,so mastering the identity boundary becomes crucial in keeping the balance between the protection and restriction of litigation rights.In order to prevent the abuse of the right of identifying,in the absence of legislation,it is necessary to build a complete system of judicial identification of abuse of litigation rights.Based on the induction and analysis of all the existing cases about abuse of litigation rights to obtain government information,combining with scientific principal law and extraterritorial experience and affirmative elements of abuse of litigation rights to divide this paper into four parts.Through systematic research on affirmation of abuse of litigation rights to access to government information from the entities and procedures,to form rules which could be generally used.The first part reviewed the basic theory of abuse of litigation rights to obtain government information and analyzed the logical relationship between litigation rights and abuse of litigation rights.Then this part proposed the practical need of building the system of identifying the abuse of litigation rights from the perspective of the causes of the abuse of litigation rights and the necessity of the regulation.The second part discuss the status of affirmation of abuse of litigation rights to obtain government information from the perspectives of legislation,judicature and theory.Through the analysis of all existing cases of government information disclosure,this part concluded seven main elements which may be considered in judicial practices.At the same time,based on the problems in judicial practice and the academic contention,this paper puts forward four problems in the affirmation of abuse of litigation rights,such as the lack of legal basis,the obscure affirmative standard,the missing procedures and the excessive discretion of legal cognizance.Based on the second part,the third part found out the basic framework and and theoretical support for the abuse litigation rights in government information disclosure in the extraterritorial norms,and put forward a double-level logical framework in affirmation of abuse of litigation rights called ‘elements of litigation rights---subjective intent” for reference.The fourth part built the affirmation system of abuse of litigation rights in government information disclosure on the basis of the above analysis.With a better legislation regulating the abuse of litigation rights,on the one hand,this part set forth four basic affirmative elements after comparing and analyzing all the possible elements which has been mentioned in judicial practice and theory analysis:the ownership of litigation rights;the subjective malice;the practice of abuse of litigation rights and the improper purpose of using litigation rights.Then found the specific forms of each element in practice as a reference of the court’s discretion.On the other hand,this part also built a procedural system of affirmation of abuse of litigation rights to facilitate the judicial practice to identify the abuse of litigation rights more accurately.