China’s Long Road to the Charity Law

China Development Brief 2013 (Winter)

中文 English

UPDATE This article originally appeared in the China Development 2013 (Winter) quarterly print edition. Since it was written there have been a number of developments in the drafting of the law. CDB has published news summaries on them herehere, and here. Currently the draft is set to be reviewed by the end of this year by the NPC. Furthermore, as of Summer 2015 a law that specifically covers overseas NGOs in China is in the advanced stages of being drafted (see here for the translated draft and analysis). At the time this article was written it was thought that issues pertaining to the administration of overseas NGOs could be included within the charity law.

 

According to a Legal Daily (法制日报) report on 10th November 2013, a draft for the charity law was included as one of the “first class projects” of the Standing Committee of the 12th National People’s Congress’s (NPC) legislative plan. According to the plan, the NPC Internal and Judicial Affairs Committee (全国人大内务司法委员会) would lead the drawing up of the draft. Before the draft is submitted to the Standing Committee of the NPC for examination, they will solicit advice from all sides and carry out extensive research.

Since news about a “charity law” was first released in 2005, there have been announcements made about its introduction almost every year. However, nine years have passed and the Chinese charity law is still stuck in the “draft” stage. How has it been 9 years with no result? When will the charity law become official?

Project approval

On 21st November 2005, at Zhongmin Plaza close to Beijing’s southwest 2nd ring-road, the China Charity Conference “charity legislation and government policy” forum was underway. The Ministry of Civil Affairs legal Office Director at that time, Wang Laizhu, handed out a stack of printed material, and introduced to about a hundred participants the “concept of the charity promotion legislation”. Although the stack of paper he handed out contained around 50 or 60 pages, he was very cautious, and only disclosed the details about the framework. He refused to disclose the finer details to the media.

Director Wang was one of the people drafting the charity law. Two months before the Conference, a draft for the “charitable activity promotion law” (慈善事业促进法) legislative proposal (later changed to “charitable activity law” (慈善事业法), “charity law” (慈善法) for short) was officially put forward to the NPC and the Legislative Affairs Office of the State Council by the Ministry of Civil Affairs. Even at the start of the China Charity Conference, the future prospects of the legislative application were not clear. Director Wang revealed that not long ago he and a representative of the NPC General Office talked about a “charitable activity promotion law”. However, the representative said it was the first he had ever heard about it. In addition, there was some objection to the proposed law from within the Ministry of Civil Affairs (MOCA) because there were more important laws that were still to be drafted such as the “public assistance act” (社会救助法) and so on, so the charity law was ranked low on the list of MOCA priorities.

Along with Director Wang, Xu Anbiao, then Chairman of the National Law Office of the NPC law committee participated in this forum. Although he was not present at the forum venue, he submitted a thesis on “the issues about public welfare legislation”. The paper revealed that calls for drafting legislation for promoting public welfare and charity were constantly increasing. During the 3rd session of the NPC meeting in 2005, 222 NPC deputies put forward 7 proposals, some called for the drafting of public fundraising laws (社会募捐法) while others called for the drafting of charity promotion laws. In addition, many representatives put forward plenty of ideas and suggestions about public welfare legislation. Scholars and experts such as Wang Ming, Zhou Junye, Wu Yujing, Chen Jinluo, Deng Guosheng, and Huang Haoming discussed this topic in a lively manner, a very different one to that of the cautious and subdued officials. Some of the more optimistic experts even said they thought the charity law would be officially launched in two years.

After the China Charity Conference, “China’s charity law should be drawn up as soon as possible” became the consensus from within the industry. Since then, charity legislation has made its way into the public domain and the Ministry of Civil Affairs also quickly organized several charity law draft meetings.

In 2006, after the New Year’s holiday had just ended, the State Council published a second document, the “Charity Promotion Law (Ministry of Civil Affairs Department draft)”. This appeared as part of the “2006 State Council Legislative Plan’s” secondary list1. Although it did not make it onto the primary list2, but for China’s charity industry this was already progress that could be celebrated.

Shelving the draft

In January 2007, the Ministry of Civil Affairs posted on their official website a “2006 Development in Civil Administration Statistical Bulletin” (2006年民政事业发展统计公报) that stated that the “the charity law draft is already finished”. Some scholars optimistically expressed that the charity law could be issued in 2007.

However, then the situation changed. There is no mention of “the charity law” in the “Standing Committee of the NPC’s Legislation and Supervision Plan in 2007” published right after the Bulletin. The NPC is the country’s organ of supreme power, and the legislative procedure is made up of three stages: submission, examination, and voting. The State Council has the right to propose a bill to the NPC (or standing committee), but it cannot make decisions regarding the examination of, and voting on, the bill. Therefore, the lack of mention in the NPC’s 2007 Plan meant that the 10th NPC had effectively left the charity law task to the next NPC.

In August 2007, the Vice Minister of the Ministry of Civil Affairs, Dou Yupei, said at a press conference held by the National News Office that there had been a few amendments made to the charity law draft. However, he was unable to say the specific date it would be released. According to legal procedures, after the charity law has been reviewed by the Ministry of Civil Affairs, it still had to be submitted to the State Council for further analysis, and then the State Council had to present it once again to the NPC for a final review.

The earthquake in Wenchuan in 2008 and other natural disasters caused China to advance into a “new era of charity”. At that time all aspects of charity were met with an enthusiastic response, and charity legislation received renewed attention. In October 2008 – five months after the Wenchuan earthquake – the Standing Committee of the 11th NPC published its legislative plan and the charity law was part of its primary legislative projects (altogether there were 49). As the authority that deals with the submission of requests or drafting is under the State Council, theoretically this meant that the law would now be submitted to the NPC before it changed term in 2013.

In 2009, in the Legislation Plan of the Standing Committee of the NPC, “charity law” was listed as one of seven preparatory projects, which means that the charity law can enter into the Standing Committee of the NPC’s examination if “the parties involved pay close attention to the research and drafting work”. However, in that year’s State Council legislation plan the charity law draft remained stuck in “the legislation items that need to pay close attention to research and be submitted on time” category.

According to media reports, in 2010 the charity law draft had already been sent from the Ministry of Civil Affairs to the State Council. On the 29th-30th of July, the State Council Legislative Affairs Office, the Ministry of Civil Affairs and others, held a seminar in Suzhou on Sino-British charity legislation. The Director of the State Council Legislation Office presented information on the draft that stated that at that time the draft contained 9 chapters and 59 articles. According to the presentation the content mainly covered the following aspects: charity organizations, charitable donations, charitable volunteering, charitable trusts, and the management, as well as support and encouragement, of overseas charity organizations’ activities in China. The Legislative Affairs Office also revealed that the drafting of the law they would rectify long-standing issues regarding the registration of charity organizations.

This seminar gave the charity world high hopes for the charity law. However, in the legislation plan of the Standing Committee of the NPC and the State Council, the status of the law remained unchanged. In 2011, the status of the charity law in the State Council Legislation Plan then got downgraded to the third level, along with the revisions to the three main regulations related to charity and NGO work (the Regulations on Registration and Administration of Social Associations; the Interim Regulations on Registration and Administration of Private Non-enterprise Units; and the Regulations on Administration of Foundations). This downgrading implied that there “needed to be a greater focus on research”. The drafting of China’s charity law seemed to be stuck in a dilemma.

Resolving differences

The torturously prolonged drafting of the charity law has come about because of a diversity of opinions about the role of charity in today’s China.

In 1991 the “Chinese Encyclopedia” defined the term “charity” as: “through sympathy, pity or religious belief, send money or material goods to those in need, or provide other practical aid to social programs […] with a heavy religious and superstitious hue, its aim is to do good things for good press […] for a small number of people it is only a kind of temporary passive relief […] the social consequences are still disputed.” According to Chinese Academy of Social Sciences (CASS) Professor Yang Tuan, who has always strongly supported the charity law, at that time any news reports that were about “charity” still had to gain approval from superiors.

In 1998, the Yangtze, Nen and Songhua river basins all experienced extensive flooding. People from all over China made donations, and in that year the amount of donations doubled and “charity” made a comeback. However, there are still huge differences in the understanding and position of charity in China and it is said that the primary reason for the Chinese charity law draft being shelved and “in need of being actively focused on” was due to the difficulty reaching consensus on key issues.

The Department Head of the State Council Office of Legislative Affairs, Zhu Weiguo, has promoted the charity law. He once mentioned that the many aspects of the charity law such as legislative purpose, policy orientation, and management systems “have not yet matured to the stage to form a consensus and we still haven’t formed a clear standpoint and methodology for certain key issues.” Professor Yang, Deng Guosheng and other scholars who had previously participated in the drawing up of the charity law draft also revealed that the reason the charity law was taking so long to be implemented was because there were dissenting opinions on some fundamental issues.

The first big issue is about how charity is defined. The academic community has long debated the definition of “public welfare” (公益) and “charity” (慈善) but still haven’t reached an authoritative conclusion. For this reason, the top priority of the charity law is to define “charity” and categorize “charity organizations”. The Ministry of Civil Affairs has been dealing with different draft versions of the law which have varying definitions of the term “charity”. The initial draft proposed by the Ministry of Civil Affairs categorized public welfare donation recipients received under “the public welfare donations law” as “charity”. However, other departments disagreed. The opposing view thought, the resolution of the 4th plenum of the 16th CPC Central Committee would be to integrate “the development of charity” into the social security system, thus, charity should be used as a supplement for social security, and be incorporated into the social security system. Afterwards, the Ministry of Civil Affairs modified the draft, highlighting content such as: “providing for disaster relief, the poor, elderly and help for orphans”, and topics within the “broad sense of charity” such as culture, education, scientific research, environmental protection and so on were not mentioned. However, this once again ignited debate amongst scholars and officials.

The second issue is how to determine the relationship between the various charitable bodies. Charity includes regulatory departments, charity organizations, volunteers, donors, beneficiaries and many other participants. Balancing out the interests of all these actors represents a big challenge for the charity law. For example, is charity for the benefit of the people or the government? Are government departments eligible to raise money? Although the “China Charity Development Guidelines” (中国慈善事业发展指导纲要) that came our between the 11th 5 Year Plan and the 12th 5 Year Plan explicitly stated that “government supervised, non-government operated, industry self-disciplined, and public monitored are principles of charity management operations”, the power, responsibility and interests of the government and charitable organizations has not been at all clear in the last few years. An example of this are the disputes about donations that occurred after the Yushu earthquake.

A third big issue is the registration system of charitable organizations. The existing “dual management” system has been criticized for many years and both the charity industry and scholars hope to get rid of the “professional supervisory units”. However the government is less willing to do so.

Finally, how overseas organizations are managed is also a big challenge. Six or seven years ago, “the color revolution” theory was much discussed, and government departments were unable to decide on the right thing to do about overseas organizations in China. In 2010, Yunnan province implemented “the interim regulations on standardizing the overseas NGOs’ activities”(规范境外非政府组织活动暂行规定); through the use of a “filing system” a few questions were solved. However, whether local experience can rise to become national standards remains inconclusive.

Breaking the ice

There has been local innovation of the problematic dual registration system. By the end of 2006, the Shenzhen NGO Administration Bureau (深圳民间组织管理局) had implemented the direct registration of industry institutions, the first of its kind in China. Two years later, the scope of registration had been expanded; the Shenzhen Civil Affairs Bureau became both the registration department and professional supervisory unit for social organizations in the categories of “business and economic”, “social welfare”, and “public welfare charities”.

In 2009, the now frustrated Ministry of Civil Affairs changed their ideas for implementing national-level legislation, to push for reform “from the bottom up”. One measure was to support Shenzhen in its “experiment”. MOCA signed an “agreement of the comprehensive reform to promote civil administration” that gave Shenzhen unprecedented policy space, including in the area of implementing a direct registration system for social organizations. In the following few years, Guangdong, Beijing, Tianjin, Sichuan, Jiangsu and other places all tried similar experiments. However, in the absence of the national-level legislation, the dynamics and pace of reform in these places was slow and cautious.

On 23rd December 2011, the Minister of the Ministry of Civil Affairs, Li Liguo, expressed that he wanted to boost the reform and innovation of social organizations’ management system at the National Civil Administration Conference. One specific measure was to promote the experience in Guangdong, pushing public welfare charities, social welfare, social services and other domains of social organizations to directly register at the Civil Affairs Department, without the requirement of finding a professional supervisory unit. After Li aired his opinions, ten provinces, autonomous regions and municipalities including Shanghai and Hebei responded to “the new deal on social organization registration” throughout 2012. By the end of 2012, 19 provinces were piloting the direct registration of social organizations.

Along with the launching of these local experiments, the central government also signalled that they were open to the end of the duel-management system. During the NPC and Chinese Political Consultative Conference (CPCC) in 2013, “The Institution Reform and Function Transformation of the State Council Scheme” (国务院机构改革和职能转变方案) proposed the establishment of four kinds of social organizations that may “directly register at the Civil Affairs Department without the consent of a professional supervisory unit”. At the end of March, the General Office of the State Council issued a notice that required amendments to the “Regulations on the Registration and Administration of Social Associations” and other administrative laws and regulations should be completed before the end of December 2013, in order to realize the direct registration of the four kinds of social organizations. This represented a huge breakthrough at the central government level.

Looking to the future

Prior to the convening of the third plenum of the 18th CPC central committee on the 30th October 2013, the Standing Committee of the 12th NPC legislation plan was published. The charity law once again appeared on the list of “first class projects” (47 in total). However, this time there was another change: “the department that submits the drafts for examination or the department that leads the drafts” changed from being the State Council to the Internal and Judicial Affairs Committee of the NPC.

Professor Wang Zhenyao, who has a thorough understanding of China’s legislation rules and methods, was very excited to see this news. Two months before, the China Philanthropy Research Institute had organized a two day seminar on charity legislation, and officials from the NPC Internal and Judicial Affairs Committee were in full attendance. Wang Zhenyao excitedly said to his colleagues about the inclusion of the Law in the NPC legislation plan: “don’t think that this is an insignificant change, from administrative legislation to NPC legislation, this means that the legislation process is more transparent and open with a higher degree of participation from society.”

According to the design of China’s system, the NPC, State Council, Central Military Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, every special committee or delegation of the NPC, and over 30 representatives of the NPC, jointly possess the right to propose a bill to the NPC (or the Standing Committee). In reality, China has always had a policy of “department legislation”(部门立法), where relevant legislative drafts are drafted by the corresponding departments and even corresponding offices, signed by the department heads and then submitted to the legislative office of the State Council for examination or correction. After examination by the State Council it is then submitted to the NPC by the Prime Minister. For the charity law, this lengthy process meant that it had already passed through layer upon layer of administrative departments for examination and approval, and this presented an impassable “administrative legislation” logjam. Consequently, the Chinese Charity Legislation Research Group led by Wang Zhenyao recommended “opening the door on legislation and strengthening social participation”.

According to Wang Zhenyao, with the NPC now taking the lead the drafting of the Law can be optimized. The NPC can detach itself from the interests of administrative departments, mobilize public participation, and express the demands of corresponding interests. A consensus can thus be formed from all participants.

In mid-July 2013, the Minister of the Ministry of Civil Affairs, Li Liguo announced at “the National Civil Affairs Legislation Meeting”, that the priority of the Ministry in legislative affairs of 2013 was to “cooperate” with the NPC and the State Council to draft the “Public Assistance Act” and the “charity law” . Li’s use of the word “cooperation” was a signal that the work to draft the legislation had been transferred from administrative departments to the organ of supreme power. When the legislative plan of the Standing Committee of the 12th NPC’s was released three months later, this subtle but important change was confirmed.

Will the NPC Internal and Judicial Affairs Committee now achieve what others have failed to do? Chinese charitable organizations and Chinese society will just have to wait and see.

 


  1. this refers to legislative projects that need to be researched without delay and be submitted when the time comes, altogether there were 108 such projects in 2006 

  2. referring to the key legislative projects that they strive to launch within the year, in total there had been 48 projects in this category in 2006 

中国慈善漫漫立法路

 

据《法制日报》2013年11月10日报道,制定慈善事业法已经列入十二届全国人大常委会立法规划第一类项目,并确定由全国人大内务司法委员会牵头起草。日前,该部门负责人表示,将广泛征求意见,深入调查研究,按期完成起草任务,提请全国人大常委会审议。

从2005年传出“慈善立法”的消息以来,几乎每一年都有相关人士发表“慈善法将出台”的好消息。但是,时间过去了八、九年,中国慈善法依然停留在“起草”阶段。
中国慈善立法,何以“九年未果”?何年才能结出“正果”?
立项
2005年11月21日,在北京西南二环附近的中民大厦,中华慈善大会“慈善立法和政策创新”论坛拉开帷幕。时任民政部法制办主任的王来柱,拿出一叠打印材料,向百来位与会者介绍 “慈善事业促进法立法构想”。虽然手中的材料厚厚一叠足有五六十页,但是他态度谨慎,只宣读框架性内容,不肯向媒体透露任何细节。
王来柱是慈善法的起草人之一。两个月前,民政部正式向全国人大和国务院法制办公室提出起草《慈善事业促进法》的立法建议(后改为《慈善事业法》,简称慈善法)。到中华慈善大会召开时,该立法申请前景尚未明朗。王来柱透露,不久前他与全国人大办公厅一名负责人谈及“慈善事业促进法”,对方表示没听说过。另外,在民政部内部也存在异议,因为还有《社会救助法》等重要法律的起草任务,慈善法似乎还排不上号。
参加这个论坛的官员还有时任全国人大法律工作委员国家法室主任的许安标,但他本人没有出席论坛会场,而是提交了一份《关于公益事业立法的几个问题》的论文。该文透露:那几年,要求制定公益事业促进法或者慈善事业促进法的呼声不断高涨。2005年全国人大三次会议期间,有222位全国人大代表共提出7件议案,有的要求制定社会募捐法,有的要求制订慈善事业促进法,还有的要求修改公益事业捐赠法。另外,还有很多代表对公益事业立法提出了意见和建议。
与官员的谨慎低调不同,王名、周俊业、吴玉京、陈金罗、邓国胜、黄浩明等学者和专家讨论气氛热烈,有人甚至认为慈善法两年就能出台。
经过这次中华慈善大会,“应该尽快制订中国的慈善法”成为当时行业内部的共识。此后,慈善立法进入社会视野,民政部也紧锣密鼓(intensely)地组织了几次慈善法草案讨论会。
2006年元旦假期刚结束,国务院发布国办发 [2006]2号文件,“慈善事业促进法(民政部起草)”这十几个字出现在《国务院2006年立法工作计划》的二级名单中(指需要抓紧研究、待条件成熟时适时提出的其他立法项目,当年共108件)。虽然没有进入一级名单(指力争年内出台的重点立法项目,当年共48件),但对中国慈善行业来说,这已经是一个值得祝贺的进展。

 

搁置
2007年1月,民政部在其官方网站发布《2006年民政事业发展统计公报》,称“慈善法草案已经起草完毕”。有学者乐观地表示,慈善法最快可能于2007年出台。
但形势有所变化。随后正式公布的《全国人大常委会2007年立法和监督计划》并无“慈善事业法”。全国人大是我国最高权力机关,我国法律的立法程序包括提交、审议、表决三个阶段。国务院有权向全国人大(或常委会)提出法律案,但是国务院不能决定法律的审议和表决。这意味着,十届全国人大将慈善立法任务留给了下一届全国人大。
2007年8月,民政部副部长窦玉沛在国新办举行的新闻发布会上表示,慈善法草案已经数易其稿。但他无法明确表示何时能够出台。根据立法程序,慈善法在民政部审议通过后,还要报到国务院审议,再由国务院提交全国人大进行最后审议。
2008年,汶川地震等特大灾害将中国推进了“慈善元年”,各方慈善热情高涨,慈善立法再引关注。当年10月,十一届全国人大常委会公布立法规划,“慈善事业法”属于一类立法项目(共49个)。其提请审议机关或起草单位是国务院。也就是说,只要国务院通过草案并提议,该法将在2013年人大换届之前提请人大审议。
2009年,在全国人大常委会立法工作计划中,“慈善事业法”被列为七件预备项目之一,这意味着,慈善法是否能进入全国人大常委会审议,前提是“有关方面应当抓紧调研和起草工作”。而这一年,在国务院立法工作计划中,慈善法起草仍停留在“需要抓紧研究、待条件成熟时提出的立法项目”之列。

2010年,媒体称,慈善法草案已通过民政部送达国务院。同年7月29-30日,国务院法制办、民政部等在苏州召开了中英慈善立法研讨会。国务院法制办处长介绍,当前草案共分9章59条,主要在慈善组织、慈善募捐、慈善志愿服务、慈善信托、境外慈善组织在华活动的管理以及扶持与奖励等方面进行了规定。对于草案细节,法制办透露将通过 “慈善法”解决长期以来一直困扰和制约慈善组织登记注册的制度瓶颈。

这次研讨会又让慈善界对慈善法充满了期待。但在全国人大常委会和国务院的立法计划中,“慈善事业法”地位依旧。

2011年,慈善法在国务院立法工作计划中的地位反而退步,和三大条例(社会团体登记管理条例、民办非企业单位登记管理暂行条例、基金会管理条例)的修订一起,并列第三类,成为“需要积极研究论证的项目”。
中国慈善立法,似乎进入了窘境。
分歧
慈善立法过程的曲折漫长,根本原因是中国各界的慈善理念大相径庭。

1991年出版的《中国大百科全书》这样定义“慈善事业”:从同情、怜悯或宗教信仰出发对弱贫者以金钱或物品相助,或者提供其他一些实际援助的社会事业……带有浓重的宗教和迷信色彩,其目的是为了做好事求善报……它只是对少数人的一种暂时的、消极的救济……它的社会后果存在争议。”。据曾经力推慈善法的中国社科院专家杨团透露,在那个年代,“慈善”主题的新闻报道,还需经上级审批。
1998年,长江、嫩江、松花江流域发生罕见洪灾。各地民众积极捐款,当年全国捐赠总量翻番。在民间救灾热情的推动下,慈善得以正名。但是在庞大的公权部门内部,对慈善的认识和定位仍有极大差距。参差不齐的思想基础,决定了慈善立法过程必将伴随着漫长的讨论和争论。

国务院法制办处长朱卫国曾经热心于慈善法推进,也参与过慈善法草案的讨论、审议,组织过相关研讨。他曾提到,慈善法在立法宗旨、政策定位、管理体制等许多方面,“都尚未成熟到形成共识的阶段,有些问题甚至还没有形成明确的立场、观点和方法。”

杨团、邓国胜等参与过慈善法草案起草或研讨的学者也透露过,慈善法久久不能出台,跟一些根本性问题存在分歧有关。

 

第一大分歧是如何定义慈善。

 

学术界有广义慈善和狭义慈善的分类,也有过“公益”和“慈善”之辩,但至今仍无权威定论。因此,慈善法的首要任务是界定慈善事业及慈善组织的范畴。

民政部经手的各版慈善法草案,对慈善事业的界定也有很大不同。最初民政部草案主张“大慈善”,将《公益事业捐赠法》提及的公益性捐赠对象均纳入慈善范畴。但是其他部门有异议。反对意见认为,十六届四中全会决议已明确将“发展慈善事业”纳入社会保障体系,因此,慈善应作为社会保障的补充,必须纳入社会保障体系内。

后来,民政部修改草案,将慈善外延缩小,突出“救灾、助困、扶老、助孤”之类的内容,对文化、教育、科研、环境保护之类的“广义慈善”并无涉及。但这又受到更多学者和部分官员的质疑。

据说,这几年,各方理念相去甚远、并由此导致各类主体关系难以设定,是我国慈善法草案被长久搁置、“需要积极论证”的主要原因之一。

第二大分歧是各类慈善主体的关系如何确定。慈善事业涉及监管部门、慈善组织、志愿者、捐赠者、受益者等多方参与主体,权衡各方利益是慈善法的根本任务。比如,慈善以民间为主还是以政府为主?政府部门是否有资格募捐?虽然十一五、十二五时期的《中国慈善事业发展指导纲要》明确地提出了“政府监管、民间运作、行业自律、社会监督的慈善事业管理体制和运行机制”,但是在前几年,政府与慈善组织的权责利并不清晰。也正因为如此,才会发生玉树地震捐款汇缴事件的争议。

另一个分歧是慈善组织的登记制度。“双重管理”体制已经被诟病多年,慈善行业和学者希望取消业务主管单位,但是对政府来说,这样做隐患很大,也迟迟不敢放开门槛。

境外组织如何管理也是一大难题。六七年前,“颜色革命”论还有话语空间,政府部门对境外组织的监管也莫衷一是。2010年,云南省出台《规范境外非政府组织活动暂行规定》,通过“备案制”解决了一些问题。但是地方经验能否上升为全国准则,尚无定论。
破冰
社会组织“双重管理”的破冰,也始于地方创新。2006年底,深圳市民间组织管理局开全国先河,实行行业协会直接登记。两年后,登记范围扩大,工商经济类、社会福利类、公益慈善类社会组织的业务主管和登记机关均由深圳民政局承担。

2009年,在全国立法上受挫的民政部转变思路,“自下而上”推进改革。其中一个举措是支持深圳发挥“试验田”功能,与深圳市政府签订“推进民政事业综合配套改革协议”,给予深圳空前的政策空间,其中包括社会组织直接登记制度。
随后几年中,广东、北京、天津、四川、江苏等地也先后在一定范围内尝试过这项举措,但是在慈善基本法缺位的背景下,这些地方改革的步伐、力度都不大,依然显得小心谨慎。
2011年12月23日,民政部部长李立国在全国民政工作会议上表示,要推进社会组织管理体制改革创新。一个具体的举措,即是推广广东经验,推行公益慈善、社会福利、社会服务等领域的社会组织直接向民政部门申请登记,而无需再寻找业务主管单位。
部长表态后,2012年一整年,上海、河北等10个省、自治区、直辖市响应了“社会组织登记新政”。到2012年底,全国已有19个省份开展或试行了社会组织直接登记。

随着地方改革试点的广泛开展,中央层面也释放出取消社会组织双重管理体制的信号:2013年两会期间,《国务院机构改革和职能转变方案》提出成立四类社会组织可“直接向民政部门依法申请登记,不再需要业务主管单位审查同意”。3月底,国务院办公厅又发通知, 2013年12月底前完成《社会团体登记管理条例》等行政法规修订工作,实现四类社会组织在民政部门的直接登记。
一直被诟病的“双重管理体制”在中央政策层面有了重大突破。

 

展望
十八届三中全会召开前的2013年10月30日,十二届全国人大常委会立法规划发布。“慈善事业法”再次出现在“第一类项目:条件比较成熟、任期内拟提请审议的法律草案(47件)”的名单中。不过,此次还有一个变化,“提请审议机关或牵头起草单位”从国务院改为全国人大内司委。
对我国立法规则和门道有深入了解的王振耀教授看到这则消息,激动不已。在此前两个多月,中国公益研究院刚组织过一次为期两天的慈善立法研讨会,全国人大内司委的官员全程列席,虽然一言未发,但是其笔记本上记录了很多研讨内容。王振耀振奋地对他的同事说:“你们别以为这是一个不起眼的变化,从行政立法到人大立法,意味着立法过程更透明、开放、社会参与度更高。”

根据我国制度设计,立法机关是全国人大,立法程序包括提交、审议、表决三个阶段。全国人大常委会、国务院、中央军委、最高法、最高检、全国人大各专门委员会或代表团、三十名以上代表联名均有权向全国人大(或常委会)提出法律案。

现实中,我国一直存在“部门立法”的现象,即相关法律草案由国家部委相应司局甚至业务处起草,部委首长签署后送国务院法制办审查或修改,经国务院审议后,由国务院总理提交全国人大。

经由行政部门逐层审批的立法,难免受限于行政程序及上级决策者的判断。慈善立法八九年未果,症结就在于“行政立法”路径不通。因此,王振耀所领导的中国慈善立法课题组建议“开门立法,加强社会参与”。
王振耀认为,慈善法由人大牵头,程序得到优化,有利于提高慈善事业法的立法效率。另一方面,人大可以超脱部门利益,展开更加充分的讨论,更能发动大众参与、代表各利益相关方的诉求,一方面在多方参与中形成共识,同时也培养少数服从多数、多数尊重少数的机制和习惯。

民政部部长李立国曾在2013年7月的“全国民政法制工作会议”中透露,今年,民政法制工作当务之急是配合全国人大、国务院制定“社会救助法”和“慈善事业法”——“配合”一词,传达出慈善法牵头工作将由行政部门转到最高权力机关的信号。三个月后发布的十二届全国人大常委会立法规划,也证实了慈善立法程序上这一微妙而重要的变化。
这一次,全国人大内务司法委员会的表态能否“言必行,行必果”?中国人和中国慈善事业拭目以待。

(作者系北京师范大学中国公益研究院研究部副主任)

Deputy Director of the Research Department of the China Philanthropy Research Institute at Beijing Normal University

Translated by Katie Tarrant

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