信息公开与“权利滥用”——日本的现实和应对

The Information Disclosure and “Abuse of Rights”:The Realities and Countermeasures of Japan

"权利滥用"作为信息公开的伴生性问题同样困扰着日本。通说主张应适用禁止权利滥用的原理来应对,这一点无论从立法者的初衷,还是制度早期以及近年的应对上来看都是一致的。尽管信息公开申请权的法律属性、公开中的权利滥用及其判断基准等课题有待今后理论与实务进一步厘清,但以日本的现实与应对来看,是可以考虑在信息公开法规中适当设置禁止权利滥用的相关条款的。不过首先需要注意的是,禁止权利滥用入法时需要颁行一些配套细则。正如盐野宏教授所指出的那样,如果不制定具体的判断基准,单纯地把禁止权利滥用写入法规并没有太大的实际意义。其次,对公众知情权的保障以及要求行政机关履行说明责任,始终是信息公开的主题与使命。"权利滥用"问题的解决,不宜"矫枉过正"。

As an associated issue of information disclosure, ＂＇abuse ot rights＂ is also a trouble in Japan. It is commonly proposed to apply a ban on abuse of rights as a countermeas- ure, which matches the initial intent of legislation and corresponds to earlier and recent ap- proaches. Although much still needs to be done theoretically and empirically regarding the legal properties of public disclosure right, abuse of rights in information disclosure and its judgment criteria in the future, the realities and countermeasures of Japan convince the author that relevant clauses that ban abuse of rights in information disclosure regulations may be con- sidered. However, it is noteworthy that. firstly, some detailed accessory regulations need to be compiled during legislation. As Professor Shiono Hiroshi points out, if the system does not have the judgment criteria, incorporating a ban on abuse of rights into regulations is not ex- pected to work effectively. Secondly, assurance of public right of knowledge and the adminis- trative responsibility for an explanation are always the theme and mission of information dis- closure. It is not recommended to ＂go too far＂ in addi＇essing the issue of ＂abuse of rights＂ .