公民滥用政府信息公开申请权的规制——围绕“三需要”条款删除的展开

Regulation on Citizens’ Abuse of Government Information Disclosure Application Right——Around the Deletion of the “Three Necessities” of the Development

通过对“三需要”删除前后滥用申请权概念的分析,可以察觉出我国在规制滥用信息公开申请权方面尚有不足,主要原因是在实践中滥用申请权的情形不为人们所重视,所以,目前亟待建立一个多层次、全方位的联动规制体系。知情权的内在制约说和外在制约说原则是健全规制行为的理论基础。针对现行社会中产生的滥用申请权的情况,规制手段除了在现有的严格审查制度和制定认定标准等方面进行,还应借鉴英国的“制度规制模式”和日本的“混合式程序弹性模式”,以设置具体的申请费用和支持建立信息委员会等措施辅之。然而,要想能涵盖更广泛的滥用信息公开申请权的范围,制定《政府信息公开法》是最直接有效的方式。

By means of analyzing the concept of the abuse of the right to apply for the government infor-mation disclosure, the terms of the “three necessities” which concludes ourselves production needs, living needs and the requirements of scientific researches played an important role in it. And after deleting the terms of the “three necessities”, the limiting conditions of the citizen, legal person or other organizations can be called off. Through the analysis above, it can be found that our country still has deficiencies in regulating the abuse of that the right to apply for the governments information disclosure. The main reason of this situation is that people do not pay attention to the abuse of the right to apply for the government information disclosure in practice. Therefore, it is urgent for us to establish a multilevel and all-round linkage regulation system to protect the right that applies for the government information disclosure in our country at present. On the other hand, the principle of the theory of internal constraints and the doctrine of the external restriction of which the right to be informed is the theoretical basis of perfecting to regulate the abuse of the behaviour of the government information disclosure. In the current situation, in view of the development of abuse of government information disclosure application right, in the existing regulatory means, in addition to the strict examination system, we also can formulate standards of affirming the behaviour of abusing the right to apply for information disclosure, according to the judgement of the supreme court to review the different cases. These can help us work out some intractable problems, and refine the content of the application for the government information disclosure that is beneficial to the people who apply for disclosure of information. Besides, they are also conducive to the workers of the government, helping them to find the information they want more quickly. Besides, we also should draw lessons from the “the mode of the regulation of the system” of British which is famous for the cost saving and how to deal with the application that they are in a tangle and “the mixed mode of the elasticity of the procedure” of Japan, which we can take advantages to set several measures to help reduce the situations of regulating the abuse of the right to apply for the government information disclosure. First of all, we could set the system of the specific application fee;through this, we can make different levels to collect the charges. Secondly, perfecting the burden of proof of the applicant who abuses the right to apply for the government information disclosure is an effective way to regulate the abuse of the right to apply for the government information disclosure. Borrowing this method, we increase the responsibility of the proving for the applicant of the government information disclosure. Last but not least, we should support to establish an information committee to check whether there is such a phenomenon that someone abuses the right to apply for the government information disclosure. The information committee is a third-party in this situation. Because of that, it can deal with anything fairly and equally. However, if we want to cover more and more the range of the abuse of the right to apply for the government information disclosure, the most direct and useful way is formulating an act of the government information disclosure, while we only have government regulations to guarantee the right to apply for the government information disclosure at the moment.