党政联合发文的信息公开困境与规则重塑：基于司法裁判的分析

由于具有横跨两个系统的多个制作主体,党政联合发文具有双重属性,并在实践中具有多种表现形态。在政府信息公开的制度实践中,该双重属性给党政联合发文的信息公开带来不小的困境,法院常因此类信息的制作主体包括党组织,因而具有党务信息属性而否定其作为"政府信息"的法律地位。该思路实际上是将双重属性简化为单一属性,最终促成了当前司法裁判中占据主导的形式化审查逻辑与规则,塑造了法院的退避立场。在依法推动党政联合发文信息公开过程中,法院应摒弃仅以主体要素作为识别标准的形式化审查,采用党务和政务标准来细化对职责要素的判断,再用内部性和外部性标准识别豁免规则,重塑此类信息的公开规则体系。

The Dilemma and Rules Reshaping of Information Disclosure of Documents Jointly Issued by the Party and Government:An Analysis Based on Judicial Adjudications

Documents jointly issued by the party and government have dual attributes and various forms in practice because there are multiple production subjects across two systems. In the system practice of government information disclosure, the dual attributes bring many difficulties to information disclosure of documents jointly issued by the party and government. Because the production subjects of this kind of information include the party organizations which have the attribute of the party information, courts usually deny its legal status as "government information". This idea is actually to simplify dual attribute to asingle attribute, and finally contributes to the logic and rules of formal examination which is dominant in current judicial adjudication and shapes the court"s position of retreating. During the process of promoting the information disclosure of documents jointly issued by the Party and government, courts should abandon formal examination only with body element as discerning standard, use the standard of party affairs and government affairs to refine the judgment of duty element, and apply the standard of internality and externality to recognize exemption rules and then to reshape the disclosing rules system of this type of information.