Study On The Protection Of The Third Person The Right In Publication Of Information

Regulation of the People’s Republic of China on the Disclosure of Governm ent Information(hereinafter referred to as Regulatio n on the Disclosure of Governm ent Information or Regulation) was published on April 5th,2007, and began to be implemented on May 1 st,2008. Although it is only an adm inistrative code, its significance cannot be undervalued, for its enactment symbolizes the of ficial establishment of the system of disclosure of governm ent information. As a law to allow citizens to ef fectively obtain governm ent information, Regulation on the Disclosure of Government Inform ation takes striking effect in the early period of implementation. But because people’s accumulated discontent over the government’s corruption of power caused by backroom deal has not been released for a long tim e, they expect so m uch from Regulation on the Disclosure of Governm ent Information that they seem to forget the security of these personal lega 1 rights such as business secret and personal privacy. With the year-on-y ear increase of cases concerned with the disclosure of government information approached by people’s courts at all levels, many problems are exposed in practice.Governm ent information is in great abundance and inclusive. Its content readily involves business secret and personal privacy. The legal consequence of the disclosure of government inform ation is not only restri cted to the applican t, but also m ight impact on the lega 1 rights of the third pa rty apart from the applicant. Article 23 of Regulation on the Disclosure of Government Information definitely stipulates that the third party’s secret-keeping information is the exception of disclosure. In view of this, for the governm ent information involving the third party’s business secret and personal privacy, and whose disclosure m ay harm the third party’s interests, not to disclose is the principle and to disclose is the exception. The cases of exception include:the third party agrees to disc lose; the inf ormation is co ncerned with important public interests. Nevertheless, the regulation still has the p roblems such as profound subjectivity, too much abstraction and principle, lack of feasibility, etc. By sorting and analyzing such cases, we can find that, it is the vague ongoing regulation of the laws and codes of governm ent information disclosure that leads to the phenomenon that the local cou its go their respective ways, the laws are serious ly contradicted, and m any problems urgently need solving. Therefore, the study of protection of the third party’s rights in the disclosure of governm ent information appears necessary and pressing.First, we’ll introduce the relevant theo ries about the prot ection of the third party’s rights in the disclosure of government information. Because the study of the third party in the academic circle of administrative laws mainly focuses on the field of administrative lawsuits, regulations about the third party also occurs first in the fiel d of administrative lawsuits. Therefore, through the relevant interpretation of the third party in the old Administrative Procedure Law and the new Administrative Procedure Law, we can define the third party in th e disclosure of governm ent information. By combining Regulation on the Disclosure of Govern ment Information, we can clarify the scope o f the legal rights of the third party, and reveal the principles in the protection of the third party’s rights in the disclosure of government information, that is, the principle of law-based adm inistration, the principle of due process and the principle of balance of interests. Second, from the aspects of legislation and practice, we’ll sort and summarize the running status quo of the protection of the third party in the disclosure of government information. In China, the protection of the third party’s legal rights is generally conducted according to the excep tions of Article 14, leg al procedure of Article 23 and release procedure of Article in Regulation, in accordance with relevant laws and judicial interpre tation. There is no de nying that China has established the sy stem of disclosure of government information and relevant coordinated sets of measures and they gradually mature, especially local regions have laid down corresponding codes or regulations to cooperate with the implementation of Regulation. But in China, because the system of disclosure of governm ent information has just started, there still exist many problems in terms of the protection of the third party’s rights. Through the em pirical analysis of the concrete cases and sorting of the existing law system, we can summarize many universal problem s, especially what principle is applicable wh en the court handles the right to know and the right of privacy. By combining the problems occurring in practice, we’ll analyze the problems and disadvantages of the codes about the protection of the third party in the disclosure of governm ent information in China. For exam ple, a relatively lar ge number of legal concepts need defining; the discretionary power of administrative bodies is too m uch; the design of adm inistrative procedure is too sim ple; there is a lack of channels of relief. By finding out solutions to these problem s, the system of protecting the third party is expected to be optim ized. Finally, by combining the practice experience of trials and there quirements of m odern administrative management, under the existing fram ework of laws in China, we’ll put forward feasible advice for the perfection of the law system of protection of the third party in the disclosure of governm ent information from the three aspects:adm inistrative procedure, judicial relief and review m echanism. The suggestions embrace refining informing procedure, adding the procedures of statement and pleading, setting up the system of "period of hesitation", trying wa ys and examining standard of the lawsuit of anti-disclosure of government information, and establishing effective review bodies, so as to work out reasonable countering m easures to solve the pr oblems occurring in the reality of the system of protection the third party. Through the above-m entioned reform, the system of government information can operate well in China, making both public’s right to know and the third party’s legal rights effectively secured.