Theoretical Foundation Of Government Information Disclosure Applicant Eligibility And Selection

In our country's government information open legal system,the rules of the“three needs” which is used when citizens apply for information disclosure in Government Information Disclosure Ordinance can be understood to set a special qualification in the application for government information disclosure,there have different views.The different opinions on this issue reflect the theoretical circle's controversy actually,It is about the basis of government information disclosure system in our country's Government Information Disclosure Regulations,the right to know or “three needs ” ? The legislative intent of the institution shall be to distinguish the active public and the public in accordance with the application.The foundation of initiative open is the right to know,the basis for public in accordance with the application is“three needs”.Therefore,the "three need" clause sets the eligibility of the government information disclosure applicant.In practice,the judicial organs have different understanding to the original intent of the Administrative Legislature,the judicial organs believe that the basis of the whole government information disclosure system is the right to know,both initiative open and public in accordance with the application.the "three need" clause have never set the eligibility of the government information disclosure applicant.But it can be used as a criterion to distinguish whether the right to apply for government information disclosure is abused.It played a similar effect as the government information disclosure applicant virtually.In view of the present situation,this paper focuses on the analysis to the nature of right to know in the theory of the right to know in the constitution,the historical changes and the modern significance of the theory of national sovereignty,the following conclusions are drawn: The right to know is different from the “three needs",because the "three needs" only reflects the social rights in the nature of the right to know.And the full right to know includes the right of freedom,the right of participation,the right of social.Therefore,the viewpoint of “three need” clause sets the eligibility of the government information disclosure applicant just take the right of social into account.And it is not compatible with the basis of the right to knowwhich disclose by application.The basis of government information disclosure by application is not the meet of national's “three needs”,but the protection to the national right to know;With the national concept in the theory of national sovereignty turns to the concept of "people" in the theory of people's sovereignty,representative system develops from the pure representative system to the semi direct system,the elements of direct democracy are becoming increasingly active.Under the background of such a theoretical conversion and the actual trend,the qualification of applying government information disclosure must respect the rights of every citizen,instead of staying in the abstract whole right and shouldn't set special requirements like “three needs”.In addition,judicial practice recognize the right to know as the basis of the application,at the same time,in order to deal with using the "three needs" as a criterion to determine whether the rights is abused.The author believes that beyond“three needs”,there exist other systems choice,and these systems can maintain harmony with the right to know and national sovereignty.In order to pursue the possibility of other choice,the author examines the practice of administrative and litigation in Japan,and founds its practice of interpretation to government information disclosure law,they developed the concept of “document specific" to distinct goodwill and malicious information public application.In addition,they also summary the types of malicious applications and deal with it through the form of government internal rules.In reality,there have been some examples of the application of similar methods to deal with malicious applications in our country.As a result,the author concluded that the "three needs" does not need in fact.It is not only contrary to the law,but also there is no alternative.The “three needs” should be removed when the Government Information Disclosure Ordinance is amended or turn up to law.As to the problem how to deal with the abuse of the right,it can be dealt through the practice of “instrument specific” and “the law of abusing right”.