论信息公开诉讼中行政机关的举证责任——涉及第三人权益的分析

On the Burden of Proof of Administration in Administrative Litigation of Governmental Information Disclosure——Analysis involved Rights and Interests of Third Party

若政府信息涉及到第三人权益,行政机关在行政诉讼中的举证责任有必要进一步厘清,这其中既涉及到第三人权益的认定、征求意见程序的履行,又涉及到第三人权益与公共利益的衡量。涉及第三人权益与侵害第三人权益意涵不同,应慎重借用信息公开条例以外的其他法律规范的相关概念。第三人的意见仅具有程序保障的意义,行政机关仍需在最终的决定中说明理由。行政机关还应就是否涉及公共利益、公共利益与第三人利益的衡量承担举证责任。

If governmental information is related to rights and interests of third party, the burden of proof of administration in administrative litigation is necessary to be further clarified, which involves identification of interests of third party, fulfillment of consultation and interest balance between third party and the public.Involving is different from infringement, and related concepts should be carefully borrowed from other legal norms of public information outside of the ordinance. The third views has only a procedural protection significance, administrative organs still need to explain the reasons in the final decision, including specific feedback on opinions of third party. The burden of proof shall lie upon administration, including whether involving public interests, interest balance between public interest and the interests of third party.