Analysis of the Right to Know

[Paper Keywords] Right to Know the Constitution
[Abstract] right to Information is a fundamental right of citizens, with the development of society, its becoming more and more important. In China, for various reasons, whether in the legal system, or in social practice, on the protection of the rights is not satisfactory. Therefore, we should create a legal system to ensure the realization of the right to know, which enrich and develop the fundamental rights of our citizens. The process of promoting the rule of Law has important practical significance.

With the development of Information society, the right to know the status of Civil rights system have become increasingly prominent, right to Information are increasingly of concern for people. Especially the first half of 2003, there's "SARS" shows that the lack of will to know to the civic life a huge negative impact, due to their own interests can not keep abreast with important developments closely related, and therefore can not be rational to organize your life, do not defend their rights and interests, and even suffered a major personal and property loss. Therefore, construction and improvement of the right to know the safeguards to ensure the realization of the right to know, has become an important issue to be solved.

First, the conservation status of our citizens right to know
Right to know, or "right to know", "knows the right", "right to know" has rich connotations. Generalized right to know, is that citizens, legal persons or other organizations are legally entitled to, requiring certain Information disclosure obligor rights and the extent permitted by Law the freedom of access to various Information. narrowly defined right to know, that knows power, means that citizens, legal persons or other organizations access to information on the state organs have the right to know. In modern society, the right to know is a citizen engaged in Political, economic, cultural and personal life is a necessary condition of Civil rights and obligations of the premise. Despite the early report of the Party's Thirteenth National Congress, our party put forward the implementation of the open system of government to improve the activities of government agencies the openness of the situation so that people know that a major, major issues discussed by the people, but in practice has also taken some measures to protect the citizens right to know, however, these administrative practice, and did not become the universal system, and lacks the Constitution and the Law norms, can not guarantee the full realization of the right to know. Specifically, the lack of the right to know our country mainly in the following areas.

First, the constitutional right of citizens, the lack of clear regulations, right to information is still not viewed as a fundamental right. Some scholars believe that our Constitution has implied right to know the provisions of an implied right of Sichuan and therefore can not say that our Constitution does not provide for the right to know. In this regard, we believe, on the one hand, in modern society, the right to information is a fundamental right of citizens, as the fundamental Law of the Constitution of the State, should be clearly recognized, but not by inference , the implicit method is derived as non-fundamental right or fundamental rights as a "does not prohibit the free" theory to treat, because it should not be setting up the right to know the legal status of the protection of this right will most vulnerable; another respect, a lack of rule of Law in our tradition, and have had no concept of the rule of law form a complete society, the implied right to information can easily be overlooked.

Second, the laws and regulations there are some provisions related to the fragmentation of the right to know, but not yet formed a system of protection system. At present, with the constant sound of the law involving the right to know the laws and regulations promulgated one after another, including "" Consumption Patient Rights Protection Act "> section 8 of the provisions on consumer right to know," <medical approach>> the first IO on the patients and their families shall have the right to copy medical records requirements, "<Securities Act"> on ag disclosure obligations, the rights of shareholders informed of the provisions of management information, "<Price Law"> in the national economy and industry on the price adjustment related to the information disclosure provisions. These laws are a collection of our understanding and evaluation of the legal system of our citizens right to know the actual an important basis for the situation, from which we can see that to some extent, though they confirmed the existence and protection of citizens right to know, but they are scattered in administrative law, Civil law, economic law system and other departments, not only the law of low rank, and the lack of systematic, comprehensive, from the rule of law requires the social security rights of citizens are still far away.

Third, in practice there are numerous violations of the right to know the phenomenon. First, the law expressly provided without the right to know the circumstances, many sectors of interest in dealing with the behavior of citizens blocked the implementation of the information. For example. Some government on rural land This is a public act expropriation, however, the amount of compensation and standards of the land of farmers knew nothing about, nor even ask to be told, the results often arise in the land of farmers not only lost their land and they can not be compensated or very little compensation for the phenomenon, and thus damage the interests of citizens. Second, even if there are provisions in the law right to know the case, often carry out in practice, the implementation of disadvantage. In practice, some of the administrative organs and leading cadres often the information public as determined by their own power, not required by law to perform. In their view, open content, scope, level, time, objects, and so the initiative rests in the hands of the executive authorities and leaders, Listen by their own discretion, not according to the law and regulations, perform their duties. For example, the law provides for certain legislation, decision-making through the hearing in advance, and some organs between stakeholders in making the important decisions, but not by the hearing program. Even worse, some grass-roots cadres in order to conceal their fool and deceive the masses and even the illegal plunder, even the people deliberately blocked the benefit of the party and state policies, laws (such as the provisions on reducing the burden on peasants), not to people know.


Second, protecting the right to know the reasons behind
First, the traditional far-reaching Political culture, public health general lack of awareness of their rights. In the West, when asked where it came right, most people will immediately be born with the right answer, and that the government granted Civil rights legislation is not a gift, but only the recognition of natural rights people. In our country, most people held the opposite view that the rights conferred by the government, not born with. This reflects the understanding between the different concepts differences: the former reflects is a proactive awareness of rights, which reflects is a passive, nothing of the rights consciousness. Thus, social life and will have a different way: the history of the West , interests and will of free people under the needs of their demands to the Government. These requirements legally recognized by the Government. has become a legal right, natural rights into legal rights is often the result of the initiative to ask people., 2} a} to the right to know, for example, the United States in the fifties and sixties of the 20th century the rise of a broad "right to know movement," the popularization and development of the right to information has played a no small role. But in China, for the right people do not take the initiative to pursue only knew the passive subject, some people do not get rid of "the people do not fight with the officer," "multi-less attitude," the thought of imprisonment, even if their legitimate rights and interests are illegal or improper administrative action against, did not dare to assert their own rights. While the reform and opening up, in view of the "Cultural Revolution" period ignoring the rights and trampling on the rights of the painful experience, people began to call for democracy and the rule of law urgent, but still have not formed the habit of active pursuit of rights.

Second, the traditional one-sided emphasis on the administrative management of the government and Civil obedience, government and citizen status is unequal. Two thousand years of feudal autocracy and born out of the former Soviet Union, the highly centralized administrative system of government relationship with the citizens had a profound impact. As has always been one-sided emphasis on the authority of government, ignoring the rights of citizens (including the right to know) and needs, while the lack of effective external design of the system to regulate the relationship between government and citizens, resulting in You Italian citizens the right to know is, the phenomenon of arbitrary administrative violations have occurred. some government officials have retained remnants of feudal ideology, such as the "official standard", "public official of your cheap," "power standard", there is no equality sense of democracy, ignoring the citizens right to know. Some leading cadres "anti-people" strong sense of the policy mistakes and the fear of loss of stricken consequences of illegal and corrupt party and government officials made public scandal, etc. will have "side effects", are not allowed public. This is actually not believe in the people's ability to differentiate a result, it is the cover and facilitate corruption. With the increasing scope of the administration, to ensure administrative efficiency, the law gives the discretion of the government have increased, the expansion of executive power more aggravated the problem. reposted elsewhere in the Research Papers Download http://www.hi138.com Third, the government and citizens of information between the lack of effective channels of communication, lack of expression of citizens of both the smooth flow of knowledge required channels, the lack of a safeguard mechanism to achieve the right to know. The Government and citizens to communicate traditional information-based approach to the way that government is the main laws, regulations, rules, administrative orders, documents and other forms of top-down government to convey to citizens relevant information, and feedback from citizens to government information and output information channels to the government less, and the result is not satisfactory. For example, citizens express their interests to government requirements (including knowledge of requirements) is the most direct channel letters, citizen petition the effect depends on the institution's administrative efficiency petition. And in practice, the petition of the effects are often not satisfactory, showing a long time, low efficiency, too passive, it is difficult to meet the requirements of citizens with a variety of interests reflected in all aspects of the problem, which is a lot of citizens do not want to express themselves through this channel requires knowledge of the main reasons. citizen requirements to the Government informed the indirect channel is the traditional mass media. Although the mass media to quickly and accurately reflect the interests of citizens and requirements, however, can really lead to the attention of the Government and to make appropriate response often depends on the government itself. the lack of expression of civic knowledge requirements in the smooth channels, the Government has not built a degree of protection mechanisms to meet the requirements of informed citizens . As a result, the citizens right to information is difficult to achieve, but can only passively receive the information the Government out.

Fourth, the public and confidential ill-defined, the government put a lot of this information to the public, the information included in the scope of confidentiality, limiting citizen's right to know. The establishment of strict secrecy, is to safeguard national security, social stability and public interest effective guarantee. However, the Government set up a comprehensive security system at the same time, confusing the boundaries of public and confidential, to many citizens of this open letter to the J to the information, information is also satisfied that the person in the context of confidentiality, the closed-end management, narrow the scope of informed citizens. China's current laws in force, established in 1988 <<State Secrets Law ">. This law provides a wide range of confidential matters and strict confidentiality, but does not provide confidential dispute resolution way. On the contrary, it requires, on state secrets is not clear whether the issues identified in specific organs before, should "take security measures." some of the details under the provisions of the confidentiality issues in the statutory, there "do not belong to the state secrets but not open "and therefore" not allowed to spread without approval, "the internal matters. so. Some of the draft regulations, a large number of registration data, survey results, statistics, have been stamped "confidential" stamp. Many times, when we went to the executive authorities to understand the situation, I get mean is similar to "This is confidential. not rumor "type of reply.

Third, build, and improve mechanisms for the protection of the right to know
Our Constitution, the right to know the shortcomings of the law, with the further development of information society and its shortcomings will become increasingly large. Real urgent need for the development of our Constitution, the law must adopt a positive attitude on the right to respond to citizens informed right up to basic rights. Provisions of the Constitution expressly set down. Meanwhile, the system through a series of concrete construction, to ensure the right of citizens to be fully realized.

First, the Constitution established the right to know the status. Fundamental rights to be provided by the Constitution, it has been two hundred years after the Constitution culture formed after the deposition of common sense. Only constitutional right to make sense of the word, the right to know as an important fundamental rights recognized in the Constitution down, which is to solve the problem right the first and key link. First of all, this is the basic right to know the status of the decision. right in the civil rights system, an increasingly prominent role in many civil rights the operation and implementation, begin with "informed" as a precondition. For example, do not understand the Political message of equality of citizens the right to vote, the right to criticize, make suggestions, democratic management and other constitutional rights and freedoms will not be fully realized. It can be said , right to information is the basis of other rights, there is no explicit constitutional right to know the status is not conducive to the realization of other rights. Second, from the civil rights and state power relations, the Constitution should recognize the right to know. civil rights and state power the basic relationship between the content of the Constitution. fundamental rights of the characteristics of interference with the exclusive powers, only the right to know clearly stipulated in the Constitution in order to (at least theoretically) for the protection from arbitrary interference of state power once again, right by the Constitution to be provided to conform to the trend of human rights protection in China. In recent years, China has acceded to various international human rights conventions and signed a <"World Declaration of Human Rights>" and "<Civil and Political Rights>>. is a party, China will perform two human rights obligations of States set by the Convention. right to know as <"World Declaration of Human Rights>" and "<Civil and Political Rights,>> provided a basic human right. In our country should be recognized and protected by the Constitution.


Second, the construction and improvement of the realization of the right to know the system. Citizens basic rights as a constitutional right to know, is an abstract of the rights guaranteed to really make it necessary to make it specific, through the relevant legal system building, so the ultimate reality. In many Western countries recognize the importance of the right to know at the same time, are more concerned about the legislation to know the system, including the right to know the U.S. system is more developed, more information disclosure law, as enacted in 1966 <<Freedom of Information Law ">, established in 1972 <<Advisory Committee Act">, established in 1974 <<Privacy Law "> and the set of 1976 <<sunlight Government Act"> and so on. These laws are protect the citizens from different angles, the effective realization of the right to know, give us a good reference. China must accelerate the establishment of the right to know the system, develop a consistent national conditions of China <"Are Government Information Disclosure Act">. I believe that. We can, of existing domestic legislation of a comprehensive summarized, contained in the various legal departments of the legal provisions concerning the right to know the selection out there to figure out what problems the current legislation, and then reality, lessons and from abroad the right to know theory and the positive results of the legislation, to establish the right to information in line with our national conditions and the legal system.

Third, the creation of the right to know the relief mechanism "that no rights without remedies." Right to know the realization of the right must have specific relief system to protect it. I believe that the constitutional right to know the basis of citizenship status and our country's constitutional status, Remedy of citizens right to know to construct from the two levels. First, we should establish the right to know the constitutional litigation. With the development of modern law, the establishment of constitutional order, justice of the Constitutional rule of law has become a modern democratic state constitution rights protection system, an inevitable trend. citizens a right to know as the Constitution established the basic rights of citizens, should become the object of the Constitution of relief, but also reflects the respect of citizens and protection of fundamental rights. Of course, there is no constitutional litigation of such a system However, we should have forward-looking, go with the trend Constitutional Jurisdiction, established the concept of constitutional litigation, given the right to know in order to protect the constitutional level. Second, in view of the realization of the right to know can not be effective in the present based on the situation of constitutional litigation There is need to find the current system of practical relief, which strengthen and improve the most closely with the citizens right to know the administrative litigation system is feasible. because from the narrow perspective of citizens right to know, is more involved in government and conflicts of interest among the citizens, causing more than constitutional litigation but an administrative litigation, administrative proceedings to give citizens the right to know by providing real protection. Links http://www.hi138.com Research Papers Download