Determination Of Abuse Of Government Information Disclosure Right

The government information disclosure system has played a pivotal role in ensuring citizens’ right to know,improving government transparency,forcing government function conversions,transforming the concept of government administrative law enforcement,and promoting the construction of a sunny government and a rule of law government.The Regulations of the People’s Republic of China on the Disclosure of Government Information(hereinafter referred to as the "Regulations")is the basic law for the disclosure of government information in China.Since the "Regulations" came into effect,China’s government information disclosure work has achieved remarkable results.The public has been provided with specific institutional guarantees when exercising the right to information,participation,expression,and supervision.The level of information disclosure of local governments has been comprehensively improved.The modernization of systems and governance capabilities has laid a solid foundation.On the other hand,due to the strong principle of China’s government information disclosure legislation,the related systems still have gaps,imperfect procedures,short implementation time,etc.During the implementation of the Regulations,there are problems such as disorderly rights protection,system distortion,and waste of resources.Among them,the problem of "abuse of the right to apply for disclosure of government information" is the most serious,and many cases have been reported in the newspapers,especially "Lu Hongxia v.Nantong Municipal Development and Reform Commission Government Information Disclosure Answer"(hereinafter referred to as "Lu Hongxia Case")is the most typical.Neither the theoretical circles nor judicial practice give a complete definition of "abuse of the right to apply for disclosure of government information",which leads to different judicial determination standards,and it is not uncommon for different cases to be judged in the same case.Therefore,it is the key to maintain the authority of the government information disclosure system and the credibility of thejudiciary if it can form a uniform identification standard for the abuse of the right to apply for government information disclosure.In view of this,the thesis bases on the establishment of the basic framework of the "abuse of the right to apply for the disclosure of government information",and from the judicial practice,it tries to concrete and type this recognition element.The full text consists of five parts.The first part,on the basis of introducing and summarizing the basic case and judgment logic of the "Lu Hongxia case",analyzes the practical significance of the case in abusing the determination of the right to apply for disclosure of government information.In the trial of this case,the judge first defined abuse of the right to know and abuse of the right to sue,and put forward the elements for determining the abuse of the right to apply for disclosure of government information,including the number of applications,the content of the application,and the purpose of the application.The second part is to sort out the existing judicial cases and find out typical cases of abuse of the right to apply for disclosure of government information.The general criteria for judicial determination are as follows: the number of applications is high and the frequency is high;the content of the application is repeated,all-inclusive,or the content of the application has been notified;It is determined that the individual develops into a group;the purpose of the application deviates from the legislative purpose of the Regulations;the main body of the application evades the principles of "no longer a matter";the application does not distinguish between objects and nature.The above situation also reflects problems in judicial determination.For example,it is difficult for different courts and even the same court to unify standards,the content of the inspection is unreasonable,and the judgment of the purpose of the application is not sufficient.In the third part,starting from the standardization of the value of affirming the application of government information disclosure application,from the perspective of prohibiting the abuse of rights,regulating the order of information disclosure,and enhancing the authority of judicial activities,etc.,it has made an in-depth study on why it is necessary to unify the affirmation standards of government information disclosure application right.analysis.Through this analysis,the whole society can be guided to strengthen the understanding of the dangers of abuse of the right to apply for disclosure of government information,promote the formation of a government information disclosure order,and avoid the waste of limited public resources.The fourth part,based on the foregoing analysis,combined with the legal principles of administrative law,types the criteria for determining the abuse of information disclosure applications,from the applicant’s subjective qualifications,the applicant’s subjective malice,the application’s behavior causing damage,the application behavior The four component elements of causality and the consequences of damage are unfolded.Among them,the subjective malicious intention of the applicant is the focus of discussion,and the analysis of subjective maliciousperspective includes whether the number and frequency of applications obviously exceeds a reasonable range,whether the content of the application is legitimate,whether the application form is proper,and whether the purpose of the application is consistent with the legislative purpose of the Regulations.The fifth part is the conclusion,emphasizing that no matter in the government information disclosure administrative practice or judicial review,the administrative organs and people’s courts should uphold the principle of prudence when determining that the applicant has abused the right to apply for information disclosure.Give full play to the effectiveness of the government information disclosure system.