On The Legal Regulation Of The Abuse Of The Right To Apply For Government Information Disclosure

At the moment in our country the inproper excercise of civic rights has brought about tremendous pressure on the social management of the public domain.Thus it shall be an important academic topic that how to identify the boundary between the excercise of civic rights and the excercise of public power.This paper chooses the abuse of application right for government information as a specific research perspective in order to give an answer to the above question.The research in this study area now lacks much theoretical support,so this paper aims to construct a good theory framework by analyzing the nature,consequence and reason of the abuse problem in our country,clearing the nature of different rights,the legal relationship and the interest structure in the area of the government information and discussing the application space and criterion of the principle of the prohibition of abusing rights when applied to the application right for government information.The Concept of efficiency in the area of economics of law is chosen to command the whole theory framework and thus three approaches to regulate the application right are proposed,including procedural regulation,the formal examination to the application for government information and the principle of the prohibition of abusing rights,which help analyze the status quo of regulation in China,foreign experience and suggestion.First the study on the status quo of regulation in China shows that our legislation lacks systematic and procedural regulation to the application right and there still exist many problems although we have gained much judicial experience about how to adopt the principle of the prohibition of abusing rights,which means that there is a large gap between the status quo and the ideal state of regulation in China.Then as to the foreign experience,the America's Procedural elastic regulation mode and the England's institutionalized regulation system could both inspire us a lot.Thus it is suggested that China's legal system of government information disclosure shall be reformed from the legislative aim,system value to system design under the challenge of the abuse of application right,by declaring the principle of exercising the application right properly.Besides on judicial part it is suggested to distinguish the subsidiary function of interest of action,add a communication procedure and an administrative review before litigation and reinforce the judicial review of “the abuse of application right ”.As a conclusion,the fundamental approach to the abuse problem is to regulate the application right reasonably,in order to guarantee the legitimacy of citizen's exercise of the application right.The foundation of the approach is a good balance between the civic right and the public power on the base of the efficient use of limited public resources,which constitues the common requirment for all the public service.