Identify Abuse Of The Right To Access The Government Information On The Disclosure Of Government Information

With the implementation of Regulation of the People's Republic of China on the Disclosure of Government Information,citizens have been entitled the right to obtain government information,and the public can participate in acquisition of government information in a more active way,which reflected the idea of controlling power and service administration in contemporary administrative law.However,in the executing process of this system,abuse of the right to obtain government information has become a practical problem troubled administrative enforcement and administrative trial due to lack of the guidance of legal norms,which should be restricted by law.In the absence of a clear positive law,the "Lu Hongxia case" of communique first attempted to restrict parties' abuse of their right to obtain government information.And the Supreme People's Court released its attitude through affirmative way of this issue.Based on "Lu Hongxia case",combining with scientific principle of law and affirmative elements of abuse of right to obtain government information to divide this paper into four parts;Taking local cases and extraterritorial laws as research material to sort out the common forms of each affirmative element;Through systematic research on affirmation of the right to access to government information to form confirmative rules which could be generally used.The first part reviewed the details and trial logic of "Lu Hongxia case," analysis results showed that the main points for court to affirm abuse of the right to obtain government information:Firstly,norms on affirmation of abuse of right to obtain government information,mainly contains Article 1 of the Constitution,Article 1 and 13 of the Regulations;Secondly,considering the effective characteristics of application,this part summarized nine characteristics of applications;Thirdly,adopting the approach of comprehensive affirmation.However,these points are not sufficient to affirm abuse of the right to obtain government information.Based on the scientific principle of law and norms,the second part carried out a systematic research on affirmation elements of abuse of right to obtain government information.Firstly,through decomposition of "government information acquisition"and "abuse" to explain of the concept of abuse of right to obtain government information;Secondly,through specific application of basic rights abuse in government information publicity to discuss the construction method of affirmation elements of abuse of right to obtain government information;Thirdly,concluding the four affirmation elements of abuse of right to obtain government information:(1)Obligee can exercise their rights to access to government information;(2)Obviously deviate from the legislative purpose of "awareness,supervision and service" of the "Regulations";(3)Subjective malicious;(4)Excessively waste administrative resources of information disclosure.Lastly,this part analyzed each affirmation element in detail.Based on the second part,the third part specifically analyzed the defects and value of "Lu Hongxia case".The first defect was it accurately located the corresponding law but failed to use it,it failed to directly extract the implied provisions of prohibition of rights abuse from Article 51 of the "Constitution",and failed to construct the foundation for affirmation elements of abuse of right to obtain government information.The second defect was the comprehensive affirmative approach from details to conclusion deviated from the elaboration and preciseness rules of judicial determination.The value of this case is the summary of characteristics of application in the order,and it actually summed up actual forms of abuse of right to obtain government information.Inspired by which this paper took the local judicial cases as dominant cases and took extraterritorial laws a supplement one,through which to analyze the common forms of affirmation elements in practice,thus to help affirmation subject to confirm affirmation elements and facts in a more prompt and accurate way,and accurately affirm actions of abuse of the right to obtain government information.The fourth part discussed the related problems of affirmation of abuse the right to obtain government information,and the author thinks that the administrative organs are the qualified subject for affirmation;In reply of information disclosure,the abuse of the right to obtain government information acquisition should be used as an exemption right;The affirmation of abuse of the right to obtain government information should follow the principle of deliberative abuse and attach importance to resolving disputes.