The Litigation Dilemma And Path Selection Of Government Information Non-existent Cases

After the implementation of ?Regulations on information disclosure of the government of the Peoples Republic of China?,?Provisions of the Supreme People's Court on Several Issues concerning administrative cases involving government information disclosure ?,a large number of case of government of information disclosure stepped into proceedings from administrative procedure.In the case of public information heard by the court,it is easy to see that the Administrative organ refused to open the government information,saying the information dose not existed.Because of the relevant laws dose not give a clear regulation on whether the information existed,The court lacks standards of definition on information existing,scope of the case,qualification of subject of procedure of the plaintiff,distribution of burden of proof,the degree of reasonable retrieval and so on,it result that both the method of refereeing and results are different,it also hinder the advance and development of information disclosure.This paper will take the dilemma on the case of information dose not existed in public information litigation government information as the research object.exploring the way to solve the problem.Try to make the thinking and standard of refereeing clear on such administrative litigation case,and offer a proposal that administrative procedure should perfected by means of it,and promote information disclosure together.Firstly,this paper will analyze the present situation of information dose not existed by case comparision.Making an analysis after gathering statistic of the formal characteristics and inactive litigation characteristics on the non existence information case.Inducing seven situations about administrative organ replied the information does not existed from cases.(The legal fact did not happen,information dose not belong to the terms which is within the scope of the applied administrative organ,the administrative agency failed to fulfill the obligation of production,the application for public information has been made or saved but not existed at present,the name and document number of the application for public information)The description of feature are not clear and after retrieval,find the information dose not existed,the information applied by the applicant need to be reprocessed,summary or remanufacture.That is the information exist but the government give a false reply.There are many reasons for the administration to reply to the application,the legal connotation of the non existence information is uncertain,it make a great trouble to administrative law enforcement and judicial practice.Secondly,this paper will mainly analyze the non existence information case as one of a type of the public litigation of government information which is under the trouble of litigation.That is the dilemma which exist in substantive law,procedural law and sentence when the court handle the case.It is mainly reflect in the definition is not cleat of the non existed information in law,the qualification of applicants for information public litigation is limited,the distribution of the burden of proof between the applicant and the administrative organ in the case of non existence information,the disunity of object of proof,it is difficult for the court to determine whether the administrative organ has fulfilled the standard of reasonable retrieval duty and whether the administrative organ is in violation of the information disclosure obligation and what sentence is more appropriate on illegal or not.At last,this paper will give advice on solving the dilemma of non existed information case in litigation by combining the present matters and outside field experience and ?Regulations on information disclosure of the government of the Peoples Republic of China?(revised draft for advice)which was released in 2017.6 by the Legal office of the State Council from perfecting the legislative provisions,judicial remedy and administrative procedure.Mainly hope to solve the problem of non existence information case by perfecting the judicial review procedure,and emphasize the limitations of judicial remedy needs the administrative procedure to be perfect.Combining those three parts to solve the law problem of non existence information case and make the information disclosure work better,promoting the construction of transparent and service-oriented government.