Research On Preventive Administrative Litigation In Government Information Disclosure

On June 6,2017,the Chinese government published the full text of the ‘People's Republic of China Government Information Disclosure Regulations(Revised Draft for Solicitation of Comments)' on it's legal information network.Although the consultation draft reiterates that information concerning third party trade secrets or personal privacy cannot be disclosed without the consent of the third party,it still continues the features of ex post relief and gives administrative agencies greater discretion like the original regulations.At the same time,business secrets or personal privacy takes information as a form of expression is unique.Once it is known to others,the relationship of rights and obligations cannot be restored to its original state.The preventive administrative litigation in government information disclosure provides ideas to solve this problems.The system of preventive administrative litigation in the disclosure of government information is a system that gives citizens the right to sue to realize the infringement prevention of commercial secrets and personal privacy.It is necessary for China to introduce this system.Firstly,it is a direct requirement to reduce the potential risk of information disclosure infringement.At present,there are many cases involving commercial secrets and personal privacy in the administrative cases about government information disclosure in China,and the losses of trade secrets and individual privacy infringement are enormous and difficult to recover.Secondly,it is an objective requirement to provide institutional guidance for judicial practice.The current judicial practice lacks the remedial channels for information-related persons,and information-related persons can only participate in litigation as a third person or file relief administrative litigation afterwards;the two remedies have high requirements for the burden of proof on information-related persons;and the confusion of the administrative agencies' notification system in the judicial practice has deepened the infringement crisis.Thirdly,it is the need for the development of an administrative litigation system.Some countries outside the region have established a preventive administrative litigation system.China needs to learn from the successful experiences ofother countries.The principle of benefit balance in China's administrative litigation system also inherently requires a preventive administrative litigation system to balance the disputes between citizens' right to know and the information related person's trade secrets and personal privacy.At present,the introduction of a preventive administrative litigation system in China's government information disclosure still involves the following issues to be solved: Firstly,the legal basis of the current system still has problems such as a low legal level,insufficient substantive regulations,and lack of procedural regulations.Secondly,it may be challenged by the principle of first-time administrative judgment and the principle of administrative maturity.Thirdly,the litigation system is different from traditional administrative litigation in the trial mode,and it faces the contradiction between the need for legality review and professional judgment,the principle of open trial and the need for secret examination.In view of the above-mentioned status quo and problems,drawing lessons from domestic and foreign advanced systems and reasonably constructing a preventive administrative litigation system in China's government information disclosure,we can start from the following aspects: Firstly,improving relevant laws and regulations.Establish a system of preventive administrative litigation in the disclosure of government information;incorporate the litigation into the scope of the ‘administrative procedure law' and improve the relevant rules of procedure.Secondly,establishing and improving the third party objection handling mechanism.Improving the notification system;introducing the hearing system.Thirdly,building relevant trial rules.To clarify the principle of suspension of execution in litigation;to make clear that the administrative agency bears the main burden of proof and it's methods;to establish a trial mode that does not openly examine but openly judge;and to use appropriate judgment methods.In this way,we can truly achieve the goal of protecting citizens' legitimate rights and interests in a ‘omnidirectional and non-porous' protection.