Legal Mechanisms For Realizing The Right To Exposure

Article 41 of China’s Constitution shows that political system of popular sovereign determines that power holder should be under supervision. The right to exposure, as a constitutional right stated in the article 41 of China’s Constitution, its realization occupies a decisive position in preventing and combating the corruption. As a consequence, inspecting the anti-corruption based on the realization of the constitutional right makes it easier to reactivate the sleepy right in the constitutional text. And for the citizen’s mastership position, as subject of constitutional right, it also makes it easier to gain more attention, realizing people’s constitutional right. All above can push the state to provide the effective guaranteeing mechanism to the right. At some point, the realization degree of the right reflects legitimacy in exercising of state power and the enforcement of the Constitution.Academic analysis of the right to exposure includes restating its definition, clarifying its nature, analyzing its element and studying its theoretical basis and value function. As to the definition of the right to exposure, firstly, it’s essentially to distinguish the right to exposure from the concept of “whistleblowing”. Secondly, it is different with the right to make complaints or charges and “complaining system”; thirdly, it’s necessary to analyze the differences between the right to exposure in China and whistleblowers’ right in foreign legal system, so as to clarify the uniqueness of the concept of right to exposure in China. The debate on the right’s type of the right to exposure is between “right of petition” and “right of supervision”. And there is a controversy about its attribute whether it is a right or obligation to the citizens. As for its elements, it consists of subject of right, the informed agency, exposure object and object of right and the way of exercising rights. The right of whistleblower consists of freedom of exposure, anonymity, right of claiming the protection, right to be informed, the right to apply for withdrawal, the right of relief and the right to asking for compensation and rewards. The obligation of the whistleblower consists of duty of confidentiality and assisting the investigation. It should be limited to exercise the right so as to avoid injuring that of another person. As constitutional right, the right to exposure holds the constitutional functions and it has the abundant theoretical foundation, such as theory of people’s sovereign, theory of right restricting power, and diversification of governance theory. All of them provide legitimacy basis for the right to exposure. Setting the right to exposure has important value and function, whose value consists of justice,order and democracy; whose fuctions contains three aspects: its basic function lies in restricting public authority, its political function based on maintaining a stable political order and its social function based on enhancing citizens’ sense of responsibility to the society.From the perspective of the theoretical analysis of rights realization, the influencing factor of implementation mechanism of the right to exposure includes subjective factors and objective factors. From the perspective of core activity coming from thought process whether the right subject choose to exercise their rights, which can be summarized as, choice will, capability evaluation, cost analysis, consequence prejudgment. Various parts of them are associated with each other and interact. Therefore, realization mechanism should try hard to act on the key factor which influences the subject’s choice and have an overall consideration on involved factors. Realization mechanism consist of operating foundation、set requirements and guarantee system of the right. The operating foundation includes micro-foundation, social foundation and institutional foundation. guarantee system of the right consist of protection mechanism of the right to exposure, incentive mechanism for subject, and relief mechanism of right.Through reviewing institutional changes, it is found that the exposure legal system has seceded from political movement and goes toward the track of rule of law gradually. However, researching the current situation of realization mechanism of the right to exposure, way of realizing of the right is blocked, filled with obstacles. The reasons are that the operating foundation of realization mechanism is weak and the current legislation about the right departs from its basic demands that as a constitutional right, which lead to critical lacking of protection system on the right to exposure. There is a great distance between protection system of the right to exposure in our sate and the whistleblower protection system in developed countries and regions. If their successful experiences and measures can be learned and the right of the whistleblower can be guaranteed, the whistleblower will be encouraged and anti-corruption will go well.When the constitutional right is difficult to realize, new path will be founded. Network anti-corruption is growing, which provide a new path for the realization of the right to exposure. In the digitalized age, the anti-corruption phenomenon on the net reflects alienation of the realization path to the right to exposure. By the indirect way of exercising freedom of speech, cyber citizens disclose some public officials’ crime or misconduct on the net, to attract the competent authorities’ attention and to make them start investigation, so as to achieve the purpose of the right to exposure. It’s creative and effective, but causes a lot of problems. In the interaction between the citizens’ practice of exercising the right to exposure and legal system, the realization path to the right has been reconstructed, so as to make it toward the track of institutionalization.The essence of anti-corruption online shows citizens’ practical reason to realize the right, which offers an opportunity to replenish and perfect the realization mechanism of the right to exposure. Perfecting the realization mechanism of the right includes three aspects. Firstly, improve the operating foundation of realization mechanism of the right, which includes training citizen consciousness, making social organization work better, perfecting the relevant institutions. Secondly, reposition the right to exposure, which includes rediscovering the constitutional value of the right to exposure, guiding the instrumental rationality turning to value rationality, the returning of citizens as the subject who owe the state power and clarifying the boundary of the right. Lastly, put forward an institutional framework of the realization mechanism of the right, which includes perfecting protection system, whistleblower incentive system, relief system and the reporting system online of the right to exposure.