Regulation On Abusing Litigation Right In Government Information Publicity

As an important product of the continuous progress of administrative rule of law,government information disclosure system plays a very important role in protecting citizens' right to know and promoting government administration according to law.However,due to the lower threshold of administrative litigation,the number of public litigation cases of government information is increasing rapidly,at the same time,a large number of abuses of the right of public prosecution of government information are also produced.This kind of abuse not only deviates from the purpose of the government information discilosure system,but also causes the serious waste of administrative and judicial resources and puzzles the normal working order of administrative organs and judicial organs.It has become a difficult problem that needs to be solved by the courts all over the country.Although,Since Lu Hongxia's case,local courts have successively regulated this kind of abuse.However,due to the lack of clear guidance from legal norms,the courts in various places have different standards in determining abuse,and judges have greater discretion in regulating abuse.It is a key issue to realize the balance between the protection of the right of action and the regulation of the right of action.In order to prevent the judge from abusing the power of admitting abuse and unreasonable regulation,it is necessary to establish a unified system of abuse of prosecution.Firstly,this paper expounds the abuse of the right of public prosecution of government information in theory,and analyzes that the establishment of the abuse action is based on the right to appeal.Through the elaboration of the theory of the right of action,the author unifies the nature of the right of prosecution with the right of public law.Based on the theory of the constituent elements of the right of action in the civil field,this paper analyzes that the establishment of the right of administrative action must satisfy the suitability of the parties and the benefit of the lawsuit,and according to the commonality of the definition of abuse in the academic circles,This paper defines the basic concept of the abuse of the right of public prosecution of government information.At the same time,it summarizes the four main forms of abuse in judicial practice by consulting the cases,from the government information disclosure system is not mature,filing a case.The improper implementation of the registration system and the insufficient implementation of the government information disclosure work have analyzed the causes of the abusive action and led to the necessity of regulating the abuse of the right of public prosecution of the government information.Secondly,from the perspective of legislation and judicature,this paper analyzes the current situation and problems of the regulation of abuse of the right of public prosecution of government information in China.Based on the analysis of the judicial cases,this paper summarizes the basic considerations of the courts in determining abuse,and combs the three different ways in which the courts regulate the abuse,that is,the reference to Lu Hongxia's case,and carefully evades the cognizance of the abuse.Separate determination of abuse of the right to apply;At the same time,the author points out that there are some problems in the court,such as the legal norm is not clear,the cognizance standard is not uniform,the cognizance procedure is lack,the judgment mode is not uniform and the judge's discretion is too big.On the basis of the problems existing in the regulation of abuse by the courts in our country,this paper tries to find out the outside world On the theory and logic of the regulation of abuse,the state puts forward the premise of the right of action for reference in the countries of the continental law system,and then identifies the double-layer logical framework of the abuse from the subjective intention.Then,through the reference to the theory and logic of foreign countries' abuse of litigation,this paper constructs the standard of the abuse of the right of public prosecution of government information.The constitution of abuse litigation must be based on the premise of enjoying the right of action,the subjective malice and the improper purpose,the objective element must carry out the act of abuse of the right of action,and according to the subject of the lawsuit,the number of the lawsuit,the content of the lawsuit,The outcome of the proceedings to determine the objective abuse of action.Finally,mainly from the legislative,executive,judicial regulation of the abuse of the right to public litigation of government information.First of all,the legislative regulation should perfect the relevant laws and regulations,including defining the main body,principle,standard,procedure and consequence of the abuse lawsuit,and secondly,perfecting the system of the public charge for government information.Administrative organs should refine the processing procedures of abnormal applications,set up information open application guidance service window,and prepare for evidence collection in advance.The judicial organs should prevent the occurrence of indiscriminate prosecution in the process of filing a case,carefully identify and reasonably regulate it,establish a list of indiscriminate litigation,and issue a typical case to standardize the identification of indiscriminate prosecution.