The present situation and evaluation of e-government legalization in China
The promulgation and implementation of e-government related laws and regulations are accompanied by the development of e-government, so the legalization process of e-government in China has roughly gone through two stages, just like the development process of e-government:
The first stage is the initial stage from the rise of e-government to 1999. During this period, China's e-government is in the stage of exploration and research, and it pays more attention to the computer network itself rather than "government affairs". At that time, a series of laws and regulations, such as Regulations on the Protection of Computer Software, Regulations on the Safety Protection of Computer Systems, Regulations on Telecommunications, Regulations on Radio Management, Measures for the Administration of Internet Service Sites, and Decision on Maintaining Internet Security, were successively promulgated, and a legal system for telecommunications industry management, Internet networks, information industry promotion policies and network intellectual property protection was initially established. At that time, the legislation obviously focused on solving the technical problems caused by the internet, and the legislative level was low.
The second stage is a gradual development stage from 2000 to now. At present, with the establishment of the national leading group and the goal of the tenth five-year plan, China's legislation on e-government has also begun to show a development trend. Mainly manifested in the following two aspects: First, the relevant legislation at the higher level provides legal protection for the development of e-government. For example, the Electronic Signature Law regulates the behavior of electronic signatures, establishes the legal effect of electronic signatures, and lays the foundation for the feasibility of network administrative behavior; Articles 29 and 33 of the Administrative Licensing Law both recognize and promote e-government from a legal perspective. Second, relevant departments and local governments are active in e-government legislation. For example, the new marriage registration method has added many measures related to informatization; Article 6 of the Regulations on Enterprise Registration Procedures has also made relevant provisions; The Measures of Shenzhen Municipal Government Information Openness on the Internet and the Measures of Tianjin E-government Management have also been promulgated, in which the latter has made more detailed provisions in terms of e-government platform construction, database construction, government information exchange mechanism, government information disclosure, information security, emergency response, intellectual property rights, and responsibilities of interested parties. It is a local law that comprehensively regulates e-government, and it is of great significance in China's e-government legislation.
Generally speaking, China's e-government is gradually moving towards legalization, and has achieved certain results. However, compared with the development requirements of e-government, the legal system obviously lags behind the technological development:
1. The legal status of e-government is unclear. As an extension of the traditional government management mode, e-government itself should have the same effect as the traditional administrative management mode. Only in this way can we give full play to the real advantages of e-government. Although the Administrative Licensing Law recognizes e-government, its provisions are too principled, and it is not a law specifically regulating e-government. Although some other separate laws involve the legal norms of activities related to e-government, they have no provisions on the effectiveness and status of e-government itself. Because the legal effect of e-government itself is uncertain, from the government's point of view, it is difficult to carry out some administrative actions with substantive rights and obligations through the network. Because there is no or only weak legal effect, government departments are easy to shirk each other, which makes e-government finally become a mere formality. From the public's point of view, the credibility of government actions will be greatly reduced because of the lack of evidence on practical issues such as the effectiveness of application and confirmation through the Internet and how to bear the wrong responsibility.
2. Information disclosure is the core of e-government development. At present, China lacks relevant laws on information disclosure and citizens' personal information protection. Realizing the openness of government affairs and the transparency of public information can be said to be the basic quality of government management in modern society. The openness of government affairs is one of the core contents of the democratic management of the government, and it is also the inevitable requirement of the information society for social governance. In the past two years, China's e-government construction has also made great efforts to promote the disclosure of government information. At the beginning of 2003, Guangzhou Municipal Government took the lead in implementing the Regulations of Guangzhou Municipal Government on Information Disclosure, and Hubei, Jilin, Jiangsu, Shanghai, Shenzhen, Hangzhou and other provinces and cities successively promulgated laws, regulations and measures on government information disclosure. The central ministries and commissions are also working hard to promote the disclosure of government information. For example, at the end of 2003, the Ministry of Commerce discussed the Interim Measures for the Openness of Government Affairs of the Ministry of Commerce, and in May 2004, the Ministry of Land and Resources issued the Notice on Strengthening the Openness of Government Information of Land and Resources and Promoting Administration by Law and for the People. Judging from the development trend of the whole country, accelerating the disclosure of government information has become the general trend. However, these laws and regulations are promulgated in the name of ministries or local governments. On the one hand, their scope of application is limited, often confined to a certain administrative division or a certain department. On the other hand, each department has its own system, there is no unified superior law, and the unity between laws and regulations is poor, which is prone to conflicts in the application of laws.
3. E-government should still implement the concept of administration according to law and strengthen the supervision, management and restraint of e-government. Administration by state administrative organs according to law is the inherent requirement of socialist rule of law, and its core is to restrict and supervise power. E-government is only a new model of government management, and it has not fundamentally changed the nature of government behavior. Therefore, government actions conducted by electronic means should also meet the requirements of administration according to law. The current e-government laws and regulations do not involve this aspect, which makes the supervision mechanism of e-government lack. Uncontrolled power is dangerous, which also applies to e-government.
4. The disunity of e-government construction standards in China has led to the emergence of "information islands". Redundant construction, incompatibility of network systems, and inability to share information resources are prominent problems in China's e-government construction at this stage. The most important reason is the inconsistency of technical standards. Because government functional departments adopt different technical standards and transmission protocols, cross-system information communication will inevitably have problems. Therefore, unified technical standards should be stipulated by law to make full use of China's information resources.
Suggestions on the legalization of e-government in China
E-government has changed the traditional form of government organization, simplified and unified administrative procedures, computerized and networked government business, thus improving the efficiency of the government. The construction of such a government cannot be separated from the legal protection. The author believes that the legal framework of e-government in China should be based on the unified e-government law, supplemented by relevant separate laws and regulations.
First, formulate a unified E-government Law as the basic law to regulate e-government.
There are two main modes of e-government legislation in the world: one is decentralized legislation, that is, there is no special e-government law, and the legal norms related to e-government are scattered in various separate laws involving network security, information disclosure, privacy and electronic payment. The second is a unified one-dimensional legal model. Although this model can't stipulate all the legal issues of e-government in one legal document, there is a special law that specifically stipulates e-government and stipulates the basic legal relationship and legal effect of e-government. No matter what kind of legislative model, the legal problems of e-government itself are unavoidable, but China has not made clear provisions on this fundamental issue. The author suggests that, first of all, China should adopt a unified single-line law model and formulate a special E-government Law. This is mainly based on two reasons: (1) The general defect of decentralized legislation is the complexity of law application; (2) The specific social environment in China makes the defects of decentralized legislation more prominent. The decentralized legislation in China is mostly departmental legislation, which is not only low in legal rank, but also prone to conflicts between laws and regulations. At present, the popularity and public awareness of e-government in China are low, and the unified one-way law model with relatively high legal rank can obviously enhance the influence of e-government and promote its development to a greater extent. Secondly, in terms of content, e-government law should include e-government organization law (which mainly stipulates the competent departments of e-government and their powers and responsibilities) and the legal status and legal effect of e-government itself. The law should clearly stipulate whether the electronic virtual government is in the same legal position as the traditional tangible government, whether the network administrative behavior has the same legal effect as the traditional administrative behavior, and whether the network administrative behavior should perform special procedures.
Second, establish and improve the legal environment related to e-government with the contents of information disclosure, privacy protection, network security and network technical standards, and e-government supervision.
In order to become an all-weather government service subject across time, place and department, e-government needs a good legal environment as a guarantee in addition to the basic law. Combined with the current situation of legislation in China, we should strengthen legislation in the following aspects: First, establish an information law with information disclosure and privacy protection as the core. Electronic government is a government with transparent management and open government affairs. The government has the responsibility and obligation to let the people obtain government information in a more convenient way and in a more understandable language. In the development of e-government, other countries have also made great efforts to build "government under the sun" and promulgated the Government under the Sun Law, Freedom of Information Law or Open Government Law. While advocating the disclosure of government information, protecting citizens' personal information in the network is also an issue that cannot be ignored. Citizens' personal information will still be lost and leaked in traditional administrative actions, so the protection of citizens' privacy rights under the network environment is more worthy of attention. Whether it is information disclosure or personal information protection, China's current legislation in these two aspects is lacking. It is still a top priority to speed up the formulation of information disclosure and privacy protection legislation. The second is to form a government information network platform with unified standards, perfect functions, safety and reliability, and gradually realize information exchange and information sharing between government agencies at the same level and lower levels. In the construction of e-government in China, regions and departments are seriously divided, and governments and departments at all levels have generally become "information islands". If this phenomenon cannot be effectively controlled and improved, it will lead to a huge waste of information resources and a doubling of government efficiency. Local governments are fragmented, unable to share resources, and also deviate from the value goal of pursuing efficient management and public services in e-government. All this is related to the lack of standardization of e-government. Therefore, at this stage, we should formulate a series of technical specifications and operating standards for the construction, management, acceptance and maintenance of e-government projects as soon as possible, so as to standardize the construction of e-government and strengthen the integration with the construction of international information networks. The third is to improve the legal system of e-government information security protection. Technical security in e-government has always been the focus of legislation, and China has initially established a system of information network security rules, but it focuses on the technical security protection of computer networks and ignores the system security protection. Information security involves not only national security, but also personal privacy and personal identity authentication, which has a great influence on the development of e-government. At present, laws and regulations on information security of government departments should be improved at the institutional level, including information collection, information release, data protection, information supervision and related procedural laws and regulations. The fourth is to establish a legal mechanism for e-government supervision. A large number of contents of e-government involve government administrative actions. In order to avoid the abuse of administrative power, supervision and restraint mechanisms are essential. On the one hand, it is necessary to establish a coping mechanism for the interaction between officials and the people. When people can easily participate in political deliberation and apply for specific administrative affairs through the Internet, there will be a smoother way to supervise government behavior through the Internet. On the other hand, it is necessary to formulate the legal responsibility system of network administrative behavior. At present, traditional administrative actions have corresponding supervision mechanisms. However, there is a need for clear legislation on how to determine and investigate the legal responsibilities of relevant personnel when there are mistakes or infringements in online administrative actions and mistakes in online office between departments.