滥用知情权的逻辑及展开

Logic of and Discussion on the Proposition of Abuse of the Right to Know

在我国信息公开实践中,出现了申请人大量申请、反复申请政府信息公开的情形。司法实践将此类申请行为界定为"滥用政府信息申请权"或"滥用知情权",并认为此类行为构成权利滥用。由于公法上权利关系的特殊性和知情权的复合性功能,在将发源于私法领域的禁止权利滥用原则适用于公法上的知情权问题时,必须对该原则的适用进行严格的范围界定和规则限制,通过对知情权行使的原则设定、滥用权利行为的类型化以及建构滥用权利的测试标准等途径,抑制行政机构和司法机关适用权利滥用原则的自由裁量空间,从而实现对知情权的权利保障和抑制权利滥用之间的平衡。

In the context of open government information practice in China, there have been situations in which applicants repeatedly submitted large amount of requests for government information disclo- sure. Courts have defined such requests as ＂abuse of the right to apply for government information＂ or ＂abuse of the right to know＂. However, it has also been noted that the concept of abuse of right, deriving from private law context, when being transplanted to public law, needs to be carefully defined due to the special nature of public power and the multiple functions of the right to know, and the dis- cretional power of both administrative agencies and courts to judge exercise of rights needs to be re- stricted. To do that, the concept of abuse of right must be defined clearly by setting forth legal princi- ples and categorizing standards and tests in order to restrict abuse of discretionary power by agency and the court. This paper proposes a three-element analytical framework to identify and deter the a- buse of the right to know, so as to fill the gap in the current system of regulation of the disclosure of government. The first is the subjective standard, which focuses on the subjective purpose of the information disclosure applicants. The second is the method standard, which looks at the specific actions taken by the applicants. The Last but not the least, there should be a consequence standard, and those applications that result in disproportionate burdens on public resources should be regarded as a- busive. A balance between the protection of the right to know and the restriction from abusing it can be struck only when these endeavors are equally highlighted.