论英美普通法中的知情权——兼谈我国信息公开条例的修改

On the Right to Know in the Common Law of England and America——Concurrently Discussing the Modification of China's Information Disclosure Regulations

以往对英美普通法国家的信息公开制度介绍皆围绕制定法展开,而一直延续至今的知情权普通法路径却少有关注。英国普通法对知情权的保护始于诉讼当事人的取证需要,当申请人满足"特别利益"和"公共记录"标准时享有对公共记录的知情权。美国继承这一规则后进行了民主化改造,放宽或舍弃了这两个标准。普通法通过个案式的利益衡量决定是否支持知情诉求,相比制定法,其衡量方法具有灵活性、宽泛性、不确定性、平衡性等特点。在制定法繁荣时代,知情权的普通法路径没有被以信息公开制定法为核心的英美现代知情权保障制度所取代,至今依然具有生存空间,能够发挥弥补甚至超越制定法的功能,其背后的原因颇具启发性,也值得我国在当前修订信息公开条例之际加以借鉴。

In the past, the introduction of the information disclosure system in the Anglo-American common law countries was centered around the statutory law. However, the path to the right to know in the common law, which has continued until now, has received little attention. The protection of the right to know in the U. K. common law begins with the need of the litigants＇ collecting information. When the ap- plicant is qualified with the standards of ＂special interest＂ and ＂public records＂, the applicant has the right to know about public records. After the United States inherited this rule, it democratized these two standards and relaxed or abandoned them. Common law determines whether or not to support the claim of right to know through case-based interest measurement. Compared with statutory law, its measurement methods are characterized by flexibility, broadness, uncertainty, and balance. In the flourishing era of statutory law, the common law approach to the right to know has not been replaced by the modern right to know system. Today, the common law approach can still survive and play the role of remedying or even surpassing the corresponding function in statutory law. The reason is quite instructive, and it is worthwhile for China to draw lessons from the current revision of the information disclosure regulations.