With the gradual establishment of the socialist market economic system and the improvement of the democratic system, state leaders attach great importance to the open government affairs system, and China's open government affairs system has been gradually established in state organs at all levels. For example, the Open System of Administrative Law Enforcement of Beijing Administration for Industry and Commerce (Provisional) stipulates the content and time limit of law enforcement; Procedures for handling transactions; Charging items, standards and basis; Penalties for violating publicity. The public security system issued the Notice of the Ministry of Public Security on the Universal Implementation of the Public Security System in Public Security Organs throughout the country. Related theoretical research is also deepening.

China's administrative openness system has a certain foundation. The most important thing is to form a legal announcement system with major newspapers such as organ newspapers sponsored by central and local government organs as the core, supported by the State Council Gazette, People's Republic of China (PRC) Law Collection, People's Republic of China (PRC) Law Collection and People's Daily, supplemented by various forms of laws and regulations. There is also some applicable legislation. For example, the second paragraph of Article 23 of the Administrative Reconsideration Law stipulates that the applicant and the third party may consult the written reply provided by the respondent, the evidence, basis and other relevant materials for making a specific administrative act, and the administrative reconsideration organ shall not refuse it unless it involves state secrets, commercial secrets or personal privacy.

The practice is mainly to stipulate the content, form, supervision and evaluation system of administrative openness through some policies. * * * Policy similarities mainly include:

(1) Specify the main contents to be disclosed.

Publicize laws, regulations and rules; Open procedures and time limit, open departments and personnel, open results, open fees and taxes, clean government regulations, supervision methods and accountability.

(2) the formal basis of publicity

The content, scope and object of publicity adopt different forms of publicity. If it is public, the public content is mainly through popular social media such as newspapers, radio, television and the Internet. The contents disclosed to relevant people mainly include setting up service halls, printing and distributing service guides (plain cards), setting up public columns, consulting service desks and other forms; For the content disclosed to a single object, take the form of notification, letter inquiry and return visit; The contents disclosed to the internal staff of the organ include briefings, documents, conversations, columns and other forms.

(3) Open procedures

The formulation of public procedures has adopted the consistent practice of policy formulation in China. Let all departments come up with an open plan, including relevant functional regulations, laws and regulations, working standards, working procedures and deadlines, as well as accountability and punishment measures for violations of regulations, as well as institutions and methods responsible for supervising implementation.

(4) Establish an open supervision and evaluation system.

The general practice is to set up internal supervision institutions within the government, bring the openness of government affairs into the scope of cadre assessment, and establish external evaluation and supervision mechanisms, such as setting up citizen complaint centers and conducting public opinion surveys on a regular basis.

Second, the main problems existing in China's administrative openness system The promulgation of administrative punishment law and other relevant laws and regulations and the establishment of policies have played a very good role in promoting the administrative openness system, and have obvious effects on improving the relationship between cadres and the masses, improving work efficiency and preventing corruption. But there are still some gaps and problems:

(1) Lack of in-depth research on the theory of administrative openness, confusing administrative openness with related systems.

In practice, the open system mainly includes: open government affairs, open factory affairs, open audit, open village affairs, open street affairs, open legislation and open administration. Some people don't know the connotation and scope of administrative openness, and expand or narrow the scope and methods of administrative openness system at will in research and practice. For example, in practice, there are several definitions of administrative openness: in the broadest sense, all matters related to public affairs should be made public. Generally speaking, the representative view is that the so-called administrative openness means that the state power must be made public in accordance with legal procedures in the course of operation, except for special circumstances stipulated by law, so that all things and activities of the party and government organs are under the general supervision and concern of the people. In a narrow sense, the representative view is that the so-called administrative openness refers to the principle and system that organizations authorized and entrusted by the laws, regulations and rules of state administrative organs, in the process of exercising state administrative functions and powers, disclose matters related to administrative affairs to the public and specific people in accordance with the law through certain forms, so that they can participate in discussing and deciding state affairs, public affairs and public welfare affairs, and supervise administrative power. In the narrowest sense, the representative views are as follows: administrative publicity refers to the government activities of government agencies, which are disclosed in various forms except those involving national security or state secrets and prohibited by law.

Comparing the above viewpoints, we can find that there are different understandings of the subject scope and form of administrative openness. For example, the subjects of administrative publicity in the broadest sense include party, government, military, courts, procuratorates and other systems at all levels, and even villagers' committees, residents' committees and enterprises' factory affairs publicity. The broad subject of administrative openness is defined as party and government organs, the narrow subject of administrative openness is defined as state administrative organs and organizations authorized by laws, regulations and rules, and the narrow subject of administrative openness is defined as government organs. It is not conducive to the further development of the administrative openness system to equate administrative openness with administrative openness, or to expand the scope of administrative openness to matters that belong to the scope of residents' autonomy, such as village affairs disclosure, or to limit the scope of administrative openness to the disclosure of administrative organs and ignore the disclosure of organizations authorized by laws, regulations and rules.

(2) The policy of administrative openness is strong, and there is no corresponding system guarantee.

Once the administrative openness system was introduced, it was widely implemented in various places. However, due to its strong policy, the lack of corresponding institutional guarantee, the prevalence of pragmatism and formalism, and the arbitrariness and fragmentation in the scope and content of administrative openness, it is difficult to become a stable system. At the same time, some localities unilaterally understand the speech of the central leadership, and limit the scope of administrative openness to solving the problems that the masses are most concerned about, as long as the masses are satisfied, regardless of the system construction of administrative openness itself. This practice is inevitable in the early days of the open administrative system, but it should not become a habitual thinking and practice. This practice exposes a pragmatic tendency. At the same time, the implementation of administrative openness is arbitrary and persistent, and its implementation is not legalized. Because administrative openness is mainly implemented in grass-roots governments and local governments, the central government has not made clear provisions on administrative openness in clear laws and regulations. Therefore, the implementation of administrative openness has strong flexibility, which is subject to the understanding, authority and creativity of local leaders. If leaders have a good understanding, attach great importance to it and have enough authority to promote and coordinate administrative openness, and formulate powerful and feasible strategies and measures, then administrative openness can be well carried out and implemented in depth. On the contrary, administrative openness will not be implemented, becoming a mere formality and going through the motions. This phenomenon also reflects the strong policy of the administrative openness system, and has a strong sense of "being honest for officials" and "uncertainty".

(3) The subject scope of administrative openness is narrow.

At the beginning of the establishment of the administrative openness system, the central government pointed out that local grass-roots political power is the focus of administrative openness, so at present, governments at all levels pay more attention to the grass-roots in the process of implementing administrative openness, and the main bodies of administrative openness are mainly concentrated in township and municipal government organs, while the central organs and provincial and ministerial organs are basically in the original state. At the same time, the theoretical circle also lacks in-depth research on the subject of administrative publicity, focusing on the subject of administrative publicity obligations, and less on the subject of administrative publicity rights. Of course, with the need to solve the transparency problem after China's entry into WTO, relevant ministries and commissions are also formulating relevant policies.

(4) The scope of administrative openness is narrow. The provisions of the current system on the contents of administrative disclosure are far from perfect, and the biggest deficiency is that the explanation of exceptions is too broad. For example, the general definition of the content of administrative disclosure is "other affairs stipulated by the state except confidentiality", which is actually very unclear. Taking the provisions of the Law of People's Republic of China (PRC) on Guarding State Secrets as an example, the Law on Guarding State Secrets fully emphasizes the protection of state secrets, with the core of preventing the disclosure of state secrets. There are no clear regulations on the proper opening and opening procedures of state secrets. At the same time, the law divides the classification of state secrets into three levels: "top secret", "secret" and "secret", which seems to be suspected of excessive classification of state secrets, which is easy to cause the proliferation of state secrets. There is no clear standard to determine what is a state secret, and state organs enjoy greater discretion, which makes it easy to expand state secrets in practice, and makes administrative subjects often refuse to provide information to the public on the grounds of state secrets in the process of implementing administrative openness.

Therefore, in the future legislation, it should be clear what is a state secret and what the state organs can disclose. We should formulate a unified standard and define the boundaries between openness and confidentiality.

(5) The way of administrative openness is simple.

In the system of administrative openness, there are various ways of openness, which constitutes the institutional diversity of administrative openness. In the current system, active disclosure and openness to all people are mostly adopted. In addition, it is also possible to disclose it according to the application and to the interested parties. The publicity scope, publicity objects and relief methods of different publicity methods are different and should be distinguished.

(6) The means of administrative publicity lags behind the means of the current administrative publicity system, and is mostly limited to the publicity through traditional media such as printing brochures, posting on the wall, and working flow charts, or the scope of publicity is mostly limited to the organization of the subject of administrative publicity. If the public needs to obtain information, they often need to find the subject of information acquisition obligation, which is not conducive to improving the efficiency of administrative openness. Even if the concept of online government affairs and the means of online publicity are emphasized, the information on the web page is either slow to update or narrow in content, short in time and arbitrary. For example, the author once logged on the website of a directly affiliated bureau, and the chapter introducing the leader in the open content of the webpage turned out to be one of his predecessors who was sentenced to fixed-term imprisonment for corruption, which can be seen from the obsolescence of the open content of the webpage.

(7) The provisions on non-public remedies are insufficient.

Under the current system, if the subject of obligation is not made public, at most, it is only to investigate the internal responsibility, and there is no legal remedy if it is not made public.

Third, the countermeasures to improve the administrative openness system

(a) improve the legislation of administrative openness and realize the legalization of administrative openness.

In a socialist country ruled by law, administration should be ruled by law, and laws and regulations should gradually become the main legal basis for the actions of administrative organs. As mentioned above, China's administrative openness system has strong policy defects, and policy is the main basis for the initial establishment of the administrative openness system, which is understandable. However, it is necessary to formulate and promulgate laws and regulations on administrative openness in order to stipulate and deepen the subject, institutional setup, procedures and relief channels of administrative openness nationwide. From a global perspective, there are two main legislative modes of administrative openness system: one is to formulate special laws on administrative openness, such as information disclosure law, property declaration law, government procurement law, and other general provisions on procedures are applicable to administrative litigation law. The representative countries are the United States and Japan; The second is that there is no special law, and the relevant issues are stipulated in the administrative procedure law, and the representative country is Germany. On the basis of absorbing foreign experience and according to the reality of China's administrative openness, China should formulate legislation of administrative openness with China characteristics. In terms of legislative arrangements, we should first formulate special laws such as property declaration law, government procurement law and information disclosure law, and then formulate a unified administrative procedure law on the basis of these laws.

(2) Strengthen the research on the connotation of the administrative openness system.

The system of administrative openness refers to the system that enterprises, institutions and their civil servants authorized by state administrative organs, laws and regulations to exercise administrative functions disclose other matters except state secrets, business secrets and personal privacy on their own initiative or upon application. The open system of administration is different from the open system of government affairs, which includes not only the open system of administration, but also other open systems, such as the open system of hospital affairs and the open system of procuratorial affairs. The system of administrative openness is different from the system of village affairs openness, because the system of village affairs openness belongs to villagers' autonomy. Therefore, China's open system is composed of different levels of systems.

(C) gradually expand the obligation of administrative openness

Subject scope At present, the subject scope of administrative openness is mainly concentrated in administrative organs at all levels, especially in grass-roots administrative organs. In fact, the subject scope of administrative openness is not limited to administrative organs, but also includes other administrative subjects other than administrative organs, such as organizations authorized by laws, regulations and rules to exercise state administrative power. In practice, the administrative openness of administrative subjects can be extended to organizations authorized by laws, regulations and rules after gaining certain experience.

(four) in-depth study of the way of administrative openness.

According to the different ways of publicity, administrative publicity can be divided into active publicity and application-based publicity; According to the different objects of publicity, administrative publicity can be divided into open to all and open to interested parties; According to the different publicity places, it can be divided into announcement publicity, reading room publicity and copy publicity; According to whether it is charged or not, it can be divided into free publicity and paid publicity. In our country, the main form of administrative openness is the active disclosure of administrative subjects, and the lack of detailed regulations and in-depth research on disclosure according to application has affected the effect of administrative openness. Therefore, we should strengthen the diversification of administrative openness, and increase the provisions of disclosure upon application and disclosure to interested parties.

1, voluntary disclosure and voluntary disclosure upon application.

Publicity refers to an open way in which the state administrative subject and its staff actively publish the relevant information of the state administrative subject and its staff in relevant newspapers and bulletins or the state administrative subject and its staff voluntarily disclose the relevant information in accordance with the obligations stipulated by law. Disclosure by application refers to the way that the right subject requests the organs and staff who have the obligation of information disclosure to disclose certain information according to certain procedures and conditions.

2. Open to all interested parties.

Opening to all means opening to all citizens and organizations of the country, and there is no qualification restriction. Disclosure to relevant parties means that the object of disclosure is limited to specific people who have an interest in the disclosed materials, information and news. In the way of disclosure to all, the administrative subject is open to all citizens and organizations of the country, and there is no qualification restriction, while the object of disclosure to interested parties is limited to those who have an interest in the published materials, information and news. For example, Article 3 1 of the Administrative Punishment Law stipulates that before making a decision on administrative punishment, the administrative organ shall inform the parties of the facts, reasons and basis for making the decision on administrative punishment. This is public and the scope is limited to the parties. The second paragraph of Article 23 of the Administrative Reconsideration Law stipulates that the applicant and the third party may consult the written reply provided by the respondent, the evidence, basis and other relevant materials for the specific administrative act, and the administrative reconsideration organ shall not refuse it except those involving state secrets, commercial secrets or personal privacy. At this time, the scope of publicity is limited to the applicant applying for administrative reconsideration and the third party of administrative reconsideration. Article 60 of the Administrative Procedure Law of China and Macau (the right of interested parties to know) stipulates that a private person has the right to obtain the information on the progress of the administrative procedure provided by the administrative organ and the right to know the definitive decision on the procedure. Article 26 of the Swiss Administrative Procedure Law stipulates that the parties concerned or their agents have the right to ask for access to the files of their own cases at the place where the original disciplinary organ is located or the official organs designated by the government. It can be seen that the scope of the former is much larger than that of the latter. This is also the biggest difference between the two public ways.

(5) Expand the scope of administrative openness.

The scope of administrative openness is a basic problem of administrative openness. Regarding the scope of administrative openness, there are two different legislative examples in the world: one is to list the matters of administrative openness; One is to adopt the rule of generalization plus exclusion. Firstly, it is generally stipulated that the information of administrative subjects should be made public, and then exclusionary exceptions are adopted, which are generally state secrets, business secrets and personal privacy.

The Freedom of Information Act of the United States adopted the first legislative example. Specifically: first, it is stipulated that the administrative organ should take the initiative to disclose the information and materials held by the administrative organ to anyone in principle; Secondly, it provides feasible standards for exemption, replacing the vague provisions in the old law; Third, the administrative subject bears the burden of proof for refusing to disclose, and the administrative subject must prove to the administrative adjudication institution or the court that the refusal meets the statutory non-disclosure standard. At the same time, we should also pay attention to the disclosure scope of personal privacy or business secrets and the litigation that will not be disclosed.

Therefore, China's administrative openness can adopt two modes: summary and enumeration:

(1) What the administrative subject should disclose.

(1) Administrative regulations, rules and other normative documents; (two) the institutional setup, staffing, responsibilities and authority, and rules and regulations of the administrative subject; (three) the employment, assessment, rewards and punishments, appointment and dismissal of the relevant staff of the administrative subject and the income of the civil servants at the corresponding level; (4) The property income and expenditure of the administrative subject shall be made public; ⑤ Basis, procedure, process, fact finding and relief ways of administrative law enforcement; ⑥ Other major administrative matters and decision-making procedures.

(2) undisclosed contents

(1) State secrets; (2) Business secrets; Three personal privacy.

(3) The administrative subject bears the burden of proof for undisclosed matters.

(six) to establish and improve the relief system of administrative openness system.

According to the jurisprudence of rights and remedies, the system of administrative openness needs relief procedures to guarantee it. In the system of administrative openness in modern countries, the principle of legal relief for administrative openness is generally established. There are generally two kinds of people who apply for relief, and all interested parties who oppose publicity must oppose publicity. According to the principle of the applicant's obtaining relief, when the applicant's request is improperly rejected by the state organs, or the interested party thinks that the applicant's request has caused harm to himself, he has the right to obtain relief, and may file an information disclosure lawsuit with the administrative organ or the court. (3) The legislation of relief system varies from country to country, and some countries adopt the principle of "exhausting administrative relief" and the principle of relative person selection.

In China's current administrative openness system, the relief right of the right subject is relatively rough, and most of the provisions on the administrative openness system do not stipulate that the right subject has the right to obtain relief. Therefore, in the future system, we should not only give the parties the right to consult the files, but also give the administrative organs and their civil servants the obligation to publish relevant information, and give the parties the right of administrative relief in administrative disclosure until they request judicial review.

For example, by expanding the interpretation of the relevant provisions of the Administrative Reconsideration Law and the Administrative Procedure Law, undisclosed acts are included in the scope of accepting cases. Article 6 of the Administrative Reconsideration Law stipulates that citizens, legal persons or other organizations may file an administrative reconsideration with the administrative reconsideration organ in accordance with the Administrative Reconsideration Law if they think that other specific administrative acts of the administrative organ infringe upon their legitimate rights and interests. According to this regulation, citizens, legal persons or other organizations may file an administrative reconsideration with an administrative organ if they think that a specific administrative act of an administrative organ infringes upon their legitimate rights and interests. Therefore, the key issue now is to prove that the relative person's refusal to disclose the information and intelligence held by the administrative organ is a specific administrative act. It is the obligation of the administrative organ for the counterpart to request the disclosure of the information and intelligence of the administrative organ, and the administrative organ shall respond to the counterpart's request in accordance with the procedures prescribed by law. The refusal of the administrative organ is a concrete measure that affects the rights of the relative person. The specific measures are aimed at the applicants who request to disclose the information of administrative organs, and the consequences of refusal directly affect the legitimate rights and interests of the counterpart.

Therefore, the relative person can file an administrative reconsideration with the administrative organ according to this provision of administrative reconsideration. Similarly, if the administrative reconsideration organ refuses to reconsider, or the counterpart refuses to accept the reconsideration decision of the reconsideration organ, or the counterpart directly brings an administrative lawsuit to the people's court, the counterpart can still bring an administrative lawsuit to the people's court.