Study On Work Secrets From The Perspective Of Government Information Disclosure

As an important part of measuring the level of democracy and rule of law in a country,information disclosure system is an important standard to distinguish democratic politics from centralized politics.To a certain extent,it determines whether government administration meets the needs of the people and whether it reflects the will of citizens.As Madison said,"A government that fails to provide the information the people need,or to establish the channels through which the people request it,is only a prelude to farce or tragedy,or both." It can be seen that the disclosure of government information is an important part of making the people the masters of the country.This paper studies the work secret system from the perspective of government information disclosure in order to define the basic principles of work secret,the scope of exemption from disclosure,the identification procedure and the relief system.Under the guidance of the Regulations of the People’s Republic of China on The Disclosure of Government Information(hereinafter referred to as the Regulations)and in accordance with the principle of "taking disclosure as the norm and non-disclosure as the exception",problems are discovered and scientifically constructed to promote the improvement of the working secret system from the perspective of government information disclosure.In 1766,Sweden promulgated the Freedom of the Press Act,the first law in the world that stipulated the government information disclosure system.Until the United States put forward "nine open exceptions" in the Information Disclosure Law,the work secret system also stood on the stage of historical development.However,in oldChina,where the hierarchy was rigid,the idea of "the people can be made known by the people but not by the people" was deeply rooted,and the relationship between the people and the government was delicate,which failed to form a fertile ground for government information disclosure.Until the founding of the People’s Republic of China,the trumpeting of reform and opening up,economic development has made unprecedented progress,the relationship between the government and citizens also changed.In July 1995,the Public Procurators’ Law of the People’s Republic of China(hereinafter referred to as the Public Procurators’ Law)went into effect.Among them,Article 8 stipulates that "public procurators shall fulfill the obligation of keeping the secrets of procuratorial work".Thus,the legal term "work secrets" appears for the first time in Chinese law.Subsequently,the law of the People’s Republic of China on Civil Servants(hereinafter referred to as the Law on Civil Servants)and the Law of the People’s Republic of China on The People’s Police(hereinafter referred to as the Law on The People’s Police)also mentioned that civil servants and the People’s police should fulfill the obligation of guarding work secrets.However,none of the above laws provides a conceptual description or procedural confirmation of the term "work secret".In 2008,the Regulations officially came into force.As China’s first specialized administrative regulation that guarantees citizens,legal persons and other organizations access to government information according to law,the Regulations guarantee citizens’ right to know,fill the legal gap of government information disclosure,and preliminarily establish a working system of government information disclosure.Through the full text,however,we did not find any of the provisions of the "secret",only in article 8 of the "three complete a steady" and article 14 the state secrets,commercial secrets and personal privacy as a condition of release publicly to guide the actual work,ignoring the secret which the king of the "secret",make it become the administrative organs abuse of power "black pocket".In 2019,the Regulations were revised,which is undoubtedly a milestone in the process of government information disclosure in China.In particular,article 16 stipulates,"The internal affairs information of an administrative organ,including personnel management,logistics management,internal work flow and other information,may not be disclosed.The records of discussions,drafts,consultation letters,request reports and other procedural information as well as the records of administrative law enforcement records formed by administrative organs in the course of performingtheir functions of administrative management may not be disclosed.Where laws,regulations and rules stipulate that the above information shall be made public,such provisions shall prevail ".This regulation further promotes the perfection of the information disclosure system,makes up for some deficiencies of information disclosure,and provides legal basis for citizens,legal persons and other social organizations to use their rights and safeguard their rights.However,as said in the Course of American Constitutionalism: 25 Major Judicial Cases affecting the United States,"there is no perfect system in the world." China’s work secret system also has a variety of defects.Legislative model,for example,the absence of chaos,scoping vague,decision procedures,in accordance with the law relief system etc,makes the work secret system is too abstract and lack of solid exercise,the cause of the government public power abuse,frequent problems such as citizens’ right to know serious limitations,caused the government information open field of vision of many "glass door".Therefore,this paper attempts to make a detailed analysis of the current situation of the system and practice by studying the basic theories of work secrets from the perspective of government information disclosure in China,and to examine the work secrets systems of The United States,Japan and Thailand from the perspective of the legislative model,basic principles,basic scope,conditions for exemption from disclosure procedures and relief systems.Based on the basic national conditions of Our country,the legislative model is sorted out,the abstract provisions are concretized,and the broad provisions are detailed.In this way,we can reduce the "omission" of administrative organs in exercising their functions and powers intentionally or unintentionally.Reduce excessive protection of work secrets for fear of disclosure or accountability,avoid using work secrets as an excuse to hide large amounts of government information,or even create opportunities for rent-seeking.Thus,to ensure the fair,just,legal and convenient work of government information disclosure,ensure the normal operation of the work secret system,enhance the credibility and execution of the government,to build a service-oriented government that people are satisfied with.This paper consists of three parts: preface,main body and conclusion,and the main body consists of four chapters.The reorganization of basic concepts is the premise and foundation of analyzingand clarifying the work secret system.Main body part of the first chapter the basic theory of the government information publicity,work secret system,on the basis of combing China’s legislative patterns work secret,starting from the connotation and denotation,preliminary determination work secret system in China is not classified as state secrets and should not be made public,determined in accordance with legal procedure and is limited to a certain range within a certain amount of time staff aware of the information.According to the provisions of Article 16 of the Regulations,work secrets mainly include internal affairs information,process information and administrative law enforcement record information,which is a legal norm recognized and observed by the government,citizens,legal persons and other social organizations.On this basis,this paper analyzes the unity and opposition between the government information disclosure and the work secret system,thus clarifying the legal basis of the work secret exemption disclosure.To explore the basic content of the work secret system is the core to find out the problems and remedy the defects.The second chapter,starting from the current situation of legislation and practice,discusses in detail the current situation of China’s work secrets in the aspects of basic principles,recognition procedures and relief system.Among them,special mention should be made of the analysis in this chapter on the "permissible" immunity from disclosure of work secrets,i.e.the conditions and procedures for immunity from disclosure.As we all know,the refusal to disclose government information on the grounds of work secrecy protection has become the "glass door" for citizens to exercise their right to know.From the perspective of typical cases,this section makes a more profound analysis of the word "may" in article 16 of the Regulations,revealing the nature of the exemption from disclosure of work secrets,that is,whether disclosure is a negotiable act,and relevant procedures should be followed.The third chapter mainly discusses the basic idea and specific provisions of the work secret system outside the region,including the United States,Japan and Thailand.Based on the analysis of the American,Japanese and Thai systems,this chapter draws some inspirations as follows: First,the development of the information disclosure system is undoubtedly the product of economic development and social system reform,and is the result of the struggle between the public power of the government and the private rights of citizens.Second,as a systematic system,thework secret system is mainly adopted by various countries in the world in a decentralized legislative mode.Among them,the United States Code is the cornerstone,the Freedom of Information Act,the Government in the Sun as the support of the information disclosure legal system is a typical representative.Third,according to the usual practice,the vast majority of countries do not appear the legal term "work secret" in the articles of law,but use the enumeration or summary plus exclusion method to determine the scope of work secret.The fourth is to strictly follow the basic principle of "openness as the principle and non-disclosure as the exception",and to follow the principle of proportionality when deciding whether to exempt disclosure,and to strictly limit the government’s discretion.Fifth,the identification procedure should be followed when determining whether the government information belongs to the category of work secrets exempt from disclosure,such as the "three standards" and "two conditions" of the United States.Sixth,when the counterpart obtained government information according to law,the administrative organ abused its public power for the reason of work secrecy,and protected its rights by administrative reconsideration or administrative litigation on the premise of guaranteeing the court’s right of substantive review.Through the analysis of the system of the above three countries,it is easy to find,specific detailed regulations made the three secret at work has a strong field management and protection,effectively limit the discretion of the government,conforms to the fundamental concept of government information disclosure,for our country government information publicity work under the vision of the improvement of the secret system provides a good reference.In the last chapter,based on the basic national conditions of Our country and the advanced experience of foreign countries,the author puts forward some concrete Suggestions to improve the work secret system.First of all,as a unitary country,on the premise of comprehensive consideration of the advantages and disadvantages of the current system,in-depth discussion will be made on the necessity of upgrading the Regulations into a special law,so as to realize the effective connection between the Regulations and the Civil Servants Law,Prosecutors Law,people’s Police Law,etc.Second,because our country government information publicity imperfection of legal system,the work secret legislation alone does not have a mature environment,under the current regulations to work secret system of management and protection,underthe condition of considering the cost price is too high for new legislation proposal within the regulations discussed with legislation,make up the law blank,enhance the guidance of the regulations;Moreover,the scope of the current article 16 of the Regulations is vague and the practice is extremely poor,which is the pain point and difficulty of the work secret system.Therefore,it is suggested to study the advanced experience of foreign countries,incorporate the principle of proportion,reconstruct the basic principle,and clarify the difference between work secrets and state secrets,business secrets and personal secrets.Clarify the basic concepts and scope of internal affairs information,procedural information and administrative law enforcement file information,and the procedures for exemption from disclosure.We will improve the system of administrative review and administrative litigation,empower courts with the power of substantive review,and truly play the role of the "last line of defense" of the relief system.In this way,the content of the discussion can be reasonably incorporated into the Regulations,so as to improve the guidance and operability of the provisions and explore a practical and efficient reform path.