Identification Of Abuse Of Right Of Action In The Litigation Of Government Information Disclosure Case

In the study of government information disclosure issues,previous scholars have focused more on expanding the scope of information disclosure and strengthening the protection of citizens ’right to know,and believe that the regulation of abuses in public information lawsuits will lead to the damage of citizens’ right to know.Not conducive to the protection of rights.Since the "Government Information Disclosure Regulations" came into effect,a large number of abuses of information request have arisen in various places.Based on these abuses of application rights for improper purposes,the abuse of government information disclosure right has been induced.Abuse of the right to sue public information clearly violates the purpose of legislation,increases the pressure of court work from the ground,causes a huge waste of judicial resources,and affects the inherent value of government information disclosure in China to a certain extent.By consulting domestic judgment documents involving the abuse of the right to open information litigation,the author intercepted 100 representative cases,and summarized their characteristics by combing the cases,providing a practical basis for the construction of the elements of abuse.Through data analysis,the common cases of government information publicity abuse are divided into 4 main categories,and the main consideration factors of judges when determining government information publicity abuses are sorted out,and analyzed in combination with the existing domestic administrative law field abuse theory,The discovery that the identification requirements are confusing and the legitimacy and legitimacy of the identification procedures have been questioned are the main issues in judicial practice for the identification of government information disclosure.These problems can easily lead to the abuse of judges’ discretionary powers,thereby damaging the legitimate rights and interests of citizens,and causing an imbalance between the regulation of abusive litigation and discretion.The identification and regulation of abuse of government information disclosure is imminent.Our country’s theories on the identification of abuses are mostly concentrated in the field of civil litigation.There are two main theories in the field of civil litigation for the determination of abuse.One is the "two elements theory" based on the principle of good faith,and the other is the "four elements theory" based on tort liability.The study found that scholars mostly directly refer to the doctrine in the field of civil litigation when determining the problem of abuse in the field of administrative law,especially the "two essentials" theory is generally welcomed.The "two essentials theory" emphasizes behavior and neglects results,avoids the causal relationship between abuse and objective results,and logically reduces the burden for identifying abuse.However,the author believes that based on the particularity of information disclosure litigation,the starting point of regulating information disclosure abuse is to prevent the limited judicial resources from being unreasonably wasted.If the action of litigation does not consume unnecessary judicial resources,then from the perspective of the protection of civil rights,at this time,it is deemed that the abuse of the right of public information litigation is an infringement of civil rights.Therefore,the corresponding results caused by the litigation should also be considered as a necessary constituent element for the determination of abuse.Compared with the former,the "Four Essentials Theory" requires consideration of the causal relationship between behavior and results,and is obviously more capable of summarizing the components of information disclosure and abuse.However,the existing problems are also obvious.The "four elements theory" considers the parties to "repeatedly" file a lawsuit as an objective element of conduct.This is not logical or consistent with the actual situation in current judicial practice."Second" should be considered in the subjective malice,which I will distinguish in the text.Secondly,the common problem of the "two elements" and the "four elements" is to include the consideration of the perpetrator’s "violation of the legislative purpose" in the constituent elements.The author believes that it is very necessary to consider whether the objective behavior of the parties violates the legislative purpose.The author decided to refer to the identification outside the territory,combine the commonality of the two theories in the field of civil prosecution and their respective rationality,and rely on a large number of judicial practices that identify government information abuse,to construct a more complete and more reasonable identification of abuse.And the process of identifying abuse.Starting from four aspects: the subject,subjective factors,objective behavior,and behavioral consequences,it regulates the construction of the identification requirements for the abuse of government information disclosure.At the same time,the legislative support should be improved.The author recommends that the principle of good faith be written into the "Regulations" and the "Administrative Litigation Law",and through legislation to add relevant provisions for government information open litigation,such as the regulation of abuse of lawsuits,gradient fees,and credit system for abuse of lawsuits,etc..To seek to provide a feasible framework for the identification and regulation of the abuse of the right of litigation in the judicial practice of information disclosure.