我国政府信息公开公益诉讼制度之建构研究

Research on the Construction of Public Interest Litigation System for Government Information Disclosure in China

政府信息公开制度因其所保护的知情权兼具私益和公益属性,在该领域内建立公益诉讼制度的主张渐起。然而既有的主张及研究范式停留在倡导阶段,对其与政府信息公开诉讼之间的关系、具体的建构规则等问题未能作出有力回应。现有的政府信息公开诉讼尽管相较于行政诉讼的其他种类已呈现出公益诉讼化特征,但缺乏向公益诉讼制度转换的现实动力。究其原因,这既有主观诉讼观对政府信息公开诉讼的定位及制度设计所带来的影响,也有目前行政公益诉讼制度完善过程中采取的保守立场所带来的负面效应。随着大数据时代的到来,为促进政府信息的流通、利用和共享,知情权作为公共利益的积极位面被强化,依职权公开方式旨在满足公众一般需求的功能得到回归,建构一项非取代而是独立于现有政府信息公开诉讼的公益诉讼制度有其必要性和合理性。在实现路径上,存在检察机关提起行政公益诉讼和公民提起民众诉讼两种模式,当两者发生竞合时,应以民众诉讼优先。

Because the government information disclosure system protects the right to know with both private and public interest attributes,the idea of establishing a public interest litigation system in this field has gradually emerged.However,the existing claims and research paradigms remain at the advocacy stage,failing to provide a strong response to its relationship with government information disclosure lawsuits,specific rules of construction and other issues.The government information disclosure litigation,although compared with other types of administrative litigation has shown the characteristics of public interest litigation,but the lack of practical motivation to convert to public interest litigation system.The reason is that this is both the subjective view of litigation on the positioning of government information disclosure litigation and the system design of the impact,but also the current administrative public interest litigation system in the process of improving the conservative position taken by the negative effects.With the advent of the big data era,in order to facilitate the flow,utilization and sharing of government information,the right to know is reinforced as a positive aspect of the public interest,and ex officio disclosure is returned to its function of meeting the general needs of the public,it is necessary and reasonable to construct an independent public interest litigation system rather than replacing government information disclosure litigation.In the realization of the path,there are two modes of administrative public interest litigation initiated by the prosecutorial authorities and popular litigation initiated by citizens,and when the two compete,the popular litigation should be given priority.