Introduction: The applicant is in charge of to X appoint can apply for to publish governmental information, x management committee with " the identification data of application is not complete " " the proof material of application item and applicant correlation sex is insufficient " " the matter that application publicizes does not belong to the limits that applies for to make public to this committee " for, make directly " governmental information applies for publicly not to grant to accept inform a book " , the applicant will is in charge of appoint the behavior that can not grant to accept is sued to the court... this is the information of a government that near future of group of Wang Jinlong's lawyer handles public issue, some viewpoints are worth to discuss in this case.
Group of author Piao Wang Jinlong's lawyer
The applicant mails at passing express on July 14, 2017 means to the canal appoint can put forward information to make public application, application makes public content to be: The file of the give an official that ask for the ground that 5 applicants building is in collective land, newspaper that ask for the ground approves a data (case of one book all directions) , collect land announcement and the compensation that ask for the ground, find a place for plan. On August 3, 2017, the applicant received a valve appoint can mail those who send service " governmental information applies for publicly not to grant to accept inform a book " . The applicant thinks to be in charge of appoint can make " governmental information applies for publicly not to grant to accept inform a book " reason is simple belong to intended shirk responsibility, disobey " governmental information makes public byelaw " regulation, form clear nonperformance government message to make public duty, the know the inside story that encroachs an applicant counterpoises. Request court cancel is in charge of appoint can make " governmental information applies for publicly not child accept inform a book " , order a pipe appoint can fulfill governmental information to make public legal duty lawfully.
Focus: This case is in first instance and 2 careful process, each just are opposite canal appoint meeting " governmental information applies for publicly not to grant to accept inform a book " nature came into being vast difference...
1. applicant: Canal appoint meet this plant the action that behavior attributes nonperformance law to define Wu, the know the inside story that encroached an applicant counterpoises.
2. is in charge of appoint meeting: Canal appoint the open main body that can not be an application information, contrary, set out from support and the point of view that help an applicant get governmental information lawfully, canal appoint meeting ground " information of government of People's Republic of China makes public byelaw " , the issue that files existence publicly to applicant government information gives standard and guidance, did not encroach an applicant to close right increase.
3. court of first instance: The data such as the identity information that public to applicant application information place should submit not all ready, non-standard problem, administrative principal part should go ahead of the rest gives inform, ask its make good omissions; The application that offers to the applicant makes public content, ought to belong to active the open, content that does not grant to publish range gives respectively answer. But canal appoint can not fulfill legal process, make directly " governmental information applies for publicly not to grant to accept inform a book " , specific reason of Ju Zaiming is not accorded with " information of government of People's Republic of China makes public byelaw " the main demand that the 21st open to governmental information application has replying, accordingly this not child accept tell book program illegimate, processing is undeserved, encroached legitimate rights and interests of the applicant, need assumes responsibility.
2 careful of 4. court: Canal appoint when can providing governmental information to the applicant, its conduct character is give advantage and not be increase and decrease, it is to offer service and rather than to limit the right, to this kind of behaviour projecting increase that does not cause gain and loss of increase and decrease to party rights and interests cannot entirely is maintained for " the law is belonged to namely without accredit of proclaimed in writing surmount powers and authorities of office " , unfavorable demarcate provides reason appoint the sexual behavior giving advantage that can provide a service.
Canal appoint can make " governmental information applies for publicly not to grant to accept inform a book " it is why to be planted the administrative action of property, it is one of focuses of this case. Wang Jinlong's lawyer thinks, canal appoint the behavior that can not grant to accept ought to be maintained to be action of administration of increase and decrease to suit more. According to the consensus of practice and academic group, action of the administration that give advantage has sign of the following judgement:
Look from content, action of the administration that give advantage is to point to gift citizen, legal person some kind of rights and interests, or remove its some voluntary administration action;
From the point of judicatory practice, action of accepted the administration that give advantage has permissive administration action, issue taxes of use card, droit card, dole, derate to wait for administrative action, the administrative principal part that does not include place of 2 careful court to think to administration opposite person " provide governmental information " behavior type;
From the point of the purpose, awarding what beneficial administration action highlights is administrative action bring a profit to the public (include material with spirit, actual with potential) ;
From the point of legal consequence, the legal consequence of action of the administration that give advantage is administration opposite person achieves expectant earnings from inside the behavior of administrative principal part;
From the point of administrative program, at its strive achieves commonweal and illicit beneficial balance for travel of the administration that give advantage, and the feature that makes contemporary administration program is full of response sex, need to be on the program more pursuit diaphaneity and fair sex, go up objectively the requirement awards beneficial administration action to pay attention to the administrative participation relative to the person all the more, realize the right (public interest) again distributive fairness is just, ensure the efficiency of administrative action. No matter angle comes from which,look so, the behavior be appealinged to in this case cannot be action of the administration that give advantage.
Contrary, the rehear in this case is opposite by the answer of applicant agency sex of increase and decrease is had the applicant, ought to attribute action of administration of increase and decrease. " governmental information makes public byelaw " come on stage, core purpose depends on ensuring administration to counterpoise relative to the person's know the inside story, with respect to this case character, administration appears to there is right in the applicant relative to system of power of know the inside story witting oneself building and building seat are collected, find a place for wait for action of administration of in succession be linked together make a case. But the request that faces power of applicant exercise know the inside story, canal appoint can not fulfill legal process, Make directly " governmental information applies for publicly not to grant to accept inform a book " , ju Zaiming reason is not accorded with " governmental information makes public byelaw " the main demand that the 21st open to governmental information application has replying, this is restricted undoubtedly and stripped the program sex that applicant exercise know the inside story counterpoises and hypostatic sex rights and interests, attribute action of administration of increase and decrease apparently.
To simplify of details of a case discuss, the article did not consider the cognizance issue of administrative responsibility main body. Show this case to already applied for rehear, if sequel has new progress, will seasonable share with everybody.
