Interpreting the Main Regulations of the Overseas NGO Law

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After a year, legislation on overseas NGOs has once again aroused great interest. The last time was in April last year, when the law on overseas NGOs was published to solicit comments from society, causing a heated debate. Members of the public from all sectors of society used a variety of channels and means to submit numerous suggestions to the legislature. After a period of concerted revision by the legislature, the law was finally passed at the 20th meeting of the 12th National People’s Congress and will go into effect on New Year’s Day 2017. The proclamation of the law once again drew the concerned attention of many people and raised a number of doubts. In light of this, it seems necessary to clarify these questions in the hope of contributing to the correct interpretation and implementation of the law.

 

  1. Background and Goals of the Legislation

 

Overseas NGOs gradually entered China in the course of Reform and Opening Up, and have conducted activities in a broad range of areas. For a long time, China had no legislation that specifically regulated and guided overseas NGOs. Of the three sets of regulations relevant to social organizations (the “Regulations on the Management of Foundations,” the “Regulations on the Registration and Management of Social Associations” and the “Temporary Regulations on the Registration and Management of Private Non-Enterprise Units”), only the “Regulations on the Management of Foundations” contains provisions on overseas foundations establishing representative offices in China. This deficiency in the legal system has led to a number of problems. First of all, overseas NGOs have faced the question of their “legality.” The lack of a legal basis or a Professional Supervisory Unit hangs like a “Damocles’ sword” over the activities of many overseas NGOs who have not registered or filed documentation, encouraging the short-term nature of these activities and harming efforts to establish long-term cooperative relationships with partner organizations, as well as the healthy development of overseas NGOs. Secondly, the rights and interests of overseas NGOs are not guaranteed. Because the legal status of overseas NGOs is unclear, they are unable to make use of laws relevant to their financial assets, contractual agreements with partner organizations or labor relations between members of their staff, making it difficult to clarify the rights, obligations and responsibilities of the parties involved. Three, the conduct of overseas NGOs is insufficiently standardized. Next to the overseas NGOs acting responsibly, there are occasionally bad actors. The media has previously exposed NGOs engaging in price manipulation and fraudulent activities, and fears that these organizations might harm national security and society’s public interest are not completely unfounded.

Therefore, drafting legislation was necessary to clarify norms and define limits. It goes without saying that the goal of the “Law on the Management of the Activities of Overseas NGOs within Mainland China” is to regulate and guide overseas NGOs in carrying out activities in Mainland China, to guarantee their legal rights and to promote exchange and cooperation.

 

  1. Defining Overseas NGOs

 

Overseas NGOs as mentioned in the law refers to foundations, social groups, think tanks and other non-profit, non-governmental social organizations legally established outside of Mainland China. Compared to the second draft of the law, the scope of the final legislation has been significantly reduced. Remember, for instance, that the second draft defined overseas NGOs as “non-profit, non-governmental social organizations established outside of Mainland China.” The final law not only adds supplemental provisions to exclude overseas schools, hospitals, science and engineering technology research institutions or academic organizations, but also makes it clear that the legislation is mainly aimed at regulating overseas NGOs comparable to China’s social organizations. These social organizations mainly take the form of foundations, social groups and private non-enterprise units (soon to be renamed “social service organizations” in accordance with the new charity law).

Since the beginning of the Reform and Opening Period, nearly 10,000 overseas NGOs have carried out activities in Mainland China in areas ranging from traditional charitable activities, like alleviating poverty, helping the needy, supporting the elderly, providing aid for the ill and relief for disaster victims, to modern public welfare endeavors in education, fair trade, village administration, social enterprise and other areas. The new legislation is an affirmation of these activities, clearly defining the operational scope of overseas NGOs as including the areas of economics, education, science and technology, culture, public health, physical education and environmental protection, as well as helping the needy, providing disaster relief and activities in other areas beneficial to developing the public welfare sector.

What should be clear is that the concept of overseas NGOs extends beyond that of charitable organizations and includes not only organizations engaging in poverty alleviation, disaster relief and other charitable causes, but also mutual-benefit organizations.

 

  1. Basic Principles of Overseas NGOs Conducting Activities in Mainland China

 

First principle: the principle of legal guarantee. Overseas NGOs carrying out activities according to the law will receive legal protection.

Second principle: the principle of abiding by the law and respecting public order. Overseas NGOs must respect the law and must not harm national or ethnic unity, China’s national interest, societal public interests or the lawful rights and interests of other entities.

Third principle: the principle of maintaining the distinctive characteristics of NGOs. NGOs have three distinctive features: they are non-profit, non-political and non-religious. Therefore, the law dictates that overseas NGOs must not engage in or fund for-profit or political activities, nor illegally engage in or fund religious activities.

 

  1. The Management System for Overseas NGOs

 

The legislation clearly makes overseas NGOs subject to the “dual management system”.

Overseas NGOs carrying out activities in Mainland China will be subject to the supervision and oversight of both the registration and management authorities, as well as the professional supervisory departments. The law clearly stipulates that the public security departments of the State Council and the public security authorities of the provincial level governments are the registration and management authorities of overseas NGOs carrying out activities in China. They are responsible for registering and carrying out annual inspections of the representative offices of overseas NGOs, filing the temporary activities of overseas NGOs, and investigating and punishing illegal activities of overseas NGOs and their representative offices; the relevant departments and units of the State Council and the relevant departments and units of the provincial level governments are the Professional Supervisory Units (业务主管单位) of overseas NGOs carrying out activities in mainland China and will give advice to overseas NGOs on establishing representative offices, changing registration and on the annual work report. They will also guide and supervise overseas NGOs and their representative offices in conducting activities in accordance with the law and assist public security authorities and other departments in investigating and punishing the illegal conduct of overseas NGOs and their representative offices.

In order to prevent “registration difficulties” caused by the difficulty of identifying Professional Supervisory Units, this law clearly dictates that the public security departments of the State Council and the public security authorities of the provincial level governments will publish a list of Professional Supervisory Units together with other relevant departments. This provision draws on lessons learned from the “Regulations on the Management of Foundations”, in the hope that publishing a list of Professional Supervisory Units will alleviate problems with the dual management system that had made it difficult for overseas foundations to identify Professional Supervisory Units and establish representative offices. Obviously, further clarifying that it is the responsibility of the government departments and relevant units mentioned in the list to act as Professional Supervisory Units for overseas NGOs would do even more to solve the problem of “registration difficulties.”

 

  1. The System of Registration and Filing

 

[The legislation] clarifies that there are two legal channels available for overseas NGOs carrying out activities in China: to register and establish a representative office in accordance with the law or to file for temporary activities. After successfully registering according to the law, those establishing a representative office will use their registration certificate to register for taxes, obtain an official seal and establish a bank account in Mainland China. Overseas NGOs that have not established a representative office may need to carry out temporary activities in Mainland China together with their Chinese partner organization. If they want to carry out temporary activities, the Chinese partner organization must carry out approval procedures according to national regulations and file documents with the registration and management authorities.

Compared to the second draft, there is no longer a separate chapter regulating the filing system for temporary activities and the relevant procedures have been simplified.

The final legislation also deletes a chapter in the second draft dealing specifically with overseas NGOs that establish foundations and private non-enterprise units (likely to be renamed “social service organizations” in the future) in Mainland China. The legal principle behind it is this: if a Chinese legal person is established according to Chinese law, then the relevant laws and legislation regulating Chinese legal persons would apply in place of this law. Foreign chambers of commerce are one typical example.

 

  1. Regulation of Activities

 

The third chapter of the law stipulates the main rules for activities carried out by overseas NGOs in Mainland China. It includes:

(1) Actual activities should match registered contents. This requires that the representative office of an overseas NGO shall carry out activities using their registered name, and within the operational boundaries and areas of activities that have been registered.

(2) Overseas NGOs may establish representative offices, but they must not establish any branch office in China, unless otherwise regulated for by the State Council. The difference between representative offices and branch offices is: the activities carried out by representative offices are considered activities carried out by the overseas NGOs themselves, while the relationship between branch offices and overseas NGOs is the same as the “relationship between headquarters and divisions”.

(3) Submitting and filing annual activity plans. The representative office of an overseas NGO shall submit an activity plan that details the projects that they intend to run and how they intend to use their funding in the coming year. This plan should be submitted to the Professional Supervisory Unit before December 31th every year. After it has been approved, the representative office shall submit it to the registration management authorities for filing within 10 days. Where there is a need to adjust the activity plans due to special circumstances, a filing should be made timely with the registration management authorities.

(4) Specification of the sources of funding. According to the law, funding for activities run by overseas NGOs in China includes:money that has been legally raised abroad; interests gained from deposits made in Chinese banks;other money that has been lawfully acquired within China.But the law also explicitly stipulates that overseas NGOs and their representative offices in China shall not conduct fundraising activities within China, and they shall not use funds that come from sources other than those described above for their activities in China.

(5) Management of bank accounts. The representative offices of overseas NGOs shall use the bank account that was filed with the registration management authorities to handle money within China, and those that carry out temporary activities in China shall use their Chinese partner organization’s bank account to handle funds in China. An independent account record should be kept, and the money used as agreed upon.

(6) Accounting and auditing shall be managed by accounting firms and accountants within Mainland China in accordance with the Chinese accounting system.

(7) Bank transfers shall be made in accordance with China’s existing regulations that deal with foreign exchange.

(8) Make tax registration and tax declarations, and pay taxes according to the law.

(9) Lawfully employ staff and file information about the staff.

(10) Unless otherwise specified, openly recruiting members is forbidden.

(11) Conditions that disqualify a person to serve as director of a representative office.

(12) Carry out temporary activities according to the contents that were filed, and report activities after completion.

(13) Conduct annual inspections. Other than the rules that are specified in this law, overseas NGOs shall adhere to other Chinese laws and regulations when carrying out activities within Mainland China.

 

  1. Favorable Policies

 

Relevant departments at all levels of government shall provide necessary favorable policies and services to enable overseas NGOs to carry out lawful activities within Mainland China. These policies and services include: (1) Stipulate areas of work and projects that overseas NGOs can work in, and publish a list of Professional Supervisory Units in order to guide the activities of the Overseas NGOs; (2) Provide policy advice and activities guidance to overseas NGOs in accordance with the law; (3) Overseas NGO representative offices shall enjoy tax benefits in accordance with the law; (4) Individuals from outside Mainland China who serve as representatives of overseas NGOs’ representative offices may apply for work permits in accordance with the law.

 

  1. Supervision and Management

 

The law authorizes registration and management departments to carry out administrative compulsory measures under lawful circumstances. These measures include: arrange meetings with chief representatives and other responsible persons from overseas NGOs’ representative offices;carry out on-site inspections;question parties involved; access, copy or even seal relevant materials; close down or seize venues, equipment or property;freeze bank accounts.

Other relevant departments, such as departments of national security, diplomatic and overseas affairs, fiscal and financial supervision and management, the customs, tax authorities, departments in charge of overseas experts and anti-money laundering are responsible for supervising and managing overseas NGOs and their representative offices according to the law and their respective responsibilities and areas of work.

 

  1. Legal Responsibility

 

See the chart below for details of the legal responsibilities stipulated in this law:

 

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  1. Enforcement Date

 

The law will come into force on January 1, 2017. There is an eight-month window between the release and enforcement dates. This gives the overseas NGOs subject to the law enough time to familiarize themselves with the contents of the law and carry out preparations accordingly. At the same time, it gives the government departments responsible for the enforcement of the law enough time to make detailed rules for the implementation and related policies, as well as to train relevant personnel, in order to achieve the goals of the law.

Conclusion: The enforcement of the Law on the Management of the Activities of Overseas NGOs with Mainland China will most certainly affect the overseas NGOs that are already working or preparing to enter Mainland China. The absence of relevant laws and regulations in the past caused difficulties for the development of many overseas NGOs. The release of this law, albeit far from perfect in terms of regulating functions, changes the situation from a state of “lawlessness” to one where “at least there are laws to abide by”, and therefore can alleviate the legality predicament of the past.

Undoubtedly, the public security authorities, serving as registration and management departments, will face challenges. First of all, the worry and suspicion towards public security authorities serving as registration departments will continue in the future, becoming a serious problem that the public security authorities have to face during their daily supervision and service work, in order to dismiss people’s suspicions and realize the multiple goals this law was designed to achieve. Secondly, we currently can’t predict whether there will be a sudden “blowout” of overseas NGOs seeking registration, but for those that have carried out non-profit activities (including philanthropy and charitable work), seeking registration will definitely be their first choice. Therefore, the public security authorities should lawfully carry out their duties during the registration process. Thirdly, related favorable policies and services should also be made as soon as possible, since it is much more efficient to encourage registration than punish those unregistered. Finally, although there is only a small number of people that would carry out illegal activities in the name of overseas NGOs, such activities will not be eradicated. It will also be a test of the public security authorities’ ability to carry out their administrative duties, in order to make use of lawful methods within the scope of power afforded by the law.

China will become more closely linked to the rest of the world during the process of globalization. Chinese social organizations have already started the process of going out, and they will face the restraint of local laws in the countries where they are operating. How to facilitate and provide better services to those organizations is a new topic worthy of in-depth research.

I’ll finish with the same thing I’ve always said: I believe in and look forward to seeing overseas NGOs move forward alongside an opening China.

 

《境外非政府组织境内活动管理法》解读:主要制度与规则

 

稿件来源: 法制网      发布时间:2016-05-03 14:15:38

 

时隔一年之后,境外非政府组织立法再次成为关注热点。上一次是去年四月,境外非政府组织法向社会公开征求意见,引发热烈讨论,公众和社会方方面面通过多种渠道和途径向立法机关提交了众多修改意见。立法机关在此期间潜心修改,终于经十二届全国人大第二十次会议通过该法,并将于明年元旦实施。本法颁布之日又令世人瞩目,看到相关疑问,始觉得有必要厘清相关问题,希冀对于法律的正确解读和实施有所裨益。

 

一、立法背景和目的

 

境外非政府组织是随着我国的改革开放进程逐渐进入境内并在颇为广泛的领域内开展活动的。长期以来,我国并无规范和引导境外非政府组织的专门立法。关于社会组织规制的三个条例(指《基金会管理条例》、《社会团体登记管理条例》和《民办非企业单位登记管理暂行条例》)中也唯有《基金会管理条例》中有关于境外基金会在中国境内设立代表机构的规定。法律秩序的缺失造成以下问题:其一,境外非政府组织遭遇“合法性”困境。由于缺乏法律依据和业务主管单位,大量境外非政府组织未经登记或者备案在境内开展活动,法律地位的不稳定性如同“达摩克利斯之剑”高悬,促使其短期行为特征,也不利于与合作伙伴开展长期稳定合作关系,不利于健康发展。其二,境外非政府组织的权益无以保障。境外非政府组织由于法律地位不明确,因此其财产关系、与合作伙伴的契约关系以及与员工之间的劳动关系都无法适用相关法律,也就难以厘清权利义务和责任。其三,境外非政府组织的行为规范缺位。境外非政府组织中也有混杂在龙中之鱼。媒体曾经曝光过他们的价格垄断和招摇撞骗行为,而危害国家安全和社会公共利益的担忧也不全是空穴来风。

 

因此有必要制定法律明确规范,厘清权界。《境外非政府组织境内活动管理法》的立法目的也就不言而喻:规范、引导境外非政府组织在境内开展活动,保障其合法权益,促进交流与合作。

 

二、境外非政府组织之界定

 

本法所称境外非政府组织是指在境外合法成立的基金会、社会团体、智库机构等非营利、非政府的社会组织。与二审稿比较,范围大幅缩小。犹记得二审稿中将境外非政府组织界定为“境外成立的非营利、非政府的社会组织。”最终通过的法律不仅通过附则的规定将境外学校、医院、自然科学和工程技术的研究机构或者学术组织排除在外,而且表明立法目的在于主要规范与我国境内社会组织对应的那些境外非政府组织。而我国境内社会组织的主要类型分为基金会、社会团体和民办非企业单位(以后根据慈善法的规定会修改为“社会服务机构”)。

 

自改革开放以来至今,已经有近万家境外非政府组织在中国境内开展各种活动,活动领域不仅覆盖扶贫、济困、扶老、恤病、救灾等传统慈善领域,而且也拓展至教育、公平贸易、乡村治理、社会企业等现代公益范畴。立法对此予以肯定,明确规定境外非政府组织的活动领域包括:经济、教育、科技、文化、卫生、体育、环保等领域和济困、救灾等方面开展有利于公益事业发展的活动。

 

应该明确的是,境外非政府组织的概念外延应该比慈善组织更广泛,不仅包括从事着济贫救灾等公益慈善事业的组织,应该还包括互益组织。

 

三、境外非政府组织境内活动的基本原则

 

原则之一:法律保障原则。即境外非政府组织依法开展活动受到法律保护。

 

原则之二:合法和尊重公序良俗原则。境外非政府组织需遵守法律,不得危害国家统一安全、民族团结,不得损害中国国家利益、社会公共利益和其他主体的合法权益。

 

原则之三:坚持非政府组织属性的原则。非政府组织的三个特性为:非营利性、非政治性和非宗教性。因此本法规定境外非政府组织不得从事和资助营利性活动、政治活动,不得非法从事或者资助宗教活动。

 

四、境外非政府组织的管理体制

 

立法明确了对于境外非政府组织实施“双重管理体制”。

 

境外非政府组织在境内开展活动同时受到登记管理机关和业务主管部门的监督管理。本法明确规定,国务院公安部门和省级人民政府公安机关为境外非政府组织在境内开展活动的登记管理机关,负责境外非政府组织代表机构的登记、年度度检查,境外非政府组织临时活动的备案,对境外非政府组织及其代表机构达到违法行为进行查处;国务院有关部门和单位和省级人民政府有关部门和单位,是境外非政府组织在中国境内开展活动的业务主管单位,对境外非政府组织设立代表机构、变更登记事项、年度工作报告提出意见,指导、监督非政府组织及其代表机构依法开展活动,协助公安机关等部门查处境外非政府组织及其代表机构的违法行为。

 

为了避免发生实践中业务主管单位难以确定导致“登记难”的现实,本法明确规定国务院公安部门和省级人民政府公安机关会同有关部门公布业务主管单位的名录。这一规定显然吸收了《基金会管理条例》的经验教训,双重管理体制因业务主管单位难以确定而导致境外基金会难以设立代表机构的困境有望通过公布业务主管单位名录予以纾解。当然若能够进一步明确作为境外非政府组织的业务主管单位是名录中的政府部门及相关单位的职责,就更有利于解决“登记难“的问题。

 

五、登记和备案制度

 

明确了境外非政府组织在中国境内开展活动可供选择的两种途径:一种为依法登记设立代表机构;另一种为临时活动备案。登记设立代表机构的,经依法申请并获准登记之后,凭代表机构登记证书依法办理税务登记、刻制印章,在中国境内开立银行账户。未设立代表机构的境外非政府组织,则需要与境内的中方合作单位合作进行开展临时活动。若要开展临时活动的,则需要中方合作单位按照国家规定办理审批手续,并到登记管理机关备案。

 

与二审稿相比较,开展临时活动的相关备案制度不再进行专章规定,相关程序予以简化。

 

对于二审稿曾经专章规定境外非政府组织在我国境内设立基金会、民办非企业单位(以后有望修改名称为“社会服务机构”)的情形,立法予以了删除。法律原理在于:若根据中国法律设立中国法人的,就不再适用本法,而应该适用规制中国法人的相关法律法规。比较典型的例子如外国商会。

 

六、活动规范

 

本法第三章专章规定了境外非政府组织境内活动的主要行为规范。主要内容包括:

 

(1)实际活动与登记内容的吻合。要求境外非政府组织代表机构应当以登记的名称,在登记的业务范围和活动地域内开展活动。

 

(2)境外非政府组织可以设立代表机构,但是不得设立分支机构,除非国务院另有规定。代表机构和分支机构的差别在于:代表机构的行为本身就是境外非政府组织的行为;而分支机构与境外非政府组织则适用“总分关系”规则。

 

(3)年度活动计划备案制度。境外非政府组织代表机构应当于每年12月31日前将包含项目实施、资金使用等内容的下一年度活动计划报业务主管单位,业务主管单位同意后十日内报登记管理机关备案。特殊情况下需要调整活动计划的,应当及时向登记管理机关备案。

 

(4)资金来源特定化。规定境外非政府组织的资金来源包括境外合法来源的资金、中国境内的银行存款利息和中国境内合法取得的其他资金;但是明确规定不得在中国境内进行募捐,也不得取得或者使用本条规定以外的资金。

 

(5)资金账户管理。要求境外非政府组织的代表机构需经备案的银行账户管理资金,开展临时活动的,则需要通过中方合作单位的银行账户管理资金,专款专用。

 

(6)会计和审计需聘请中国境内会规定计人员和会计师事务所,并执行中国会计制度。

 

(7)依照外汇管理规定办理外汇收支。

 

(8)依法办理税务登记、纳税申报和税款缴纳。

 

(9)依法聘用员工和进行备案。

 

(10)除特别规定之外,不得发展会员。

 

(11)负责人任职的消极条件。

 

(12)临时活动需按备案内容进行并在活动结束之后报告相关内容。

 

(13)实施年检制度。当然,除了本法规定的活动规范,境外非政府组织在我国境内开展活动的,尚需遵守我国其他法律法规的规定。

 

七、便利措施

 

各级人民政府有关部门应当为境外非政府组织在中国境内依法开展活动提供必要便利和服务,内容包括:其一,制定境外非政府组织活动领域和 目录,公布业务主管单位名录,为境外非政府组织活动提供指引;其二,依法为境外非政府组织提供政策咨询、活动指导服务;公布申请登记和临时活动备案的程序供境外非政府组织查询;其三,依法享受税收优惠;其四,境外人员担任代表的, 依法办理就业等工作手续。

 

八、监督管理

 

赋予了登记管理机关在法定情形下可以采取行政强制措施的权限。具体措施包括:约谈境外非政府组织代表机构的首席代表以及其他负责人;现场检查;询问相关当事人;查询、复制甚至封存有关资料;查封与扣押;冻结银行账户。其他有关政府部门在其职责范围之内对于境外非政府组织境内开展的活动依法实施监督管理,这些部门包括国家安全、外交外事、财政、金融监管、海关、税务、外国专家和反洗钱主管部门等。

 

九、法律责任

 

本法所规定的法律责任如下图所示:

 

1

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十、实施日期

 

《境外非政府组织境内活动管理法》的实施日期为2017年1月1日。颁布和实施之间有八个多月的准备期。这对于受到这部法律调整和规范的境外非政府组织而言,能够有足够的时间了解立法内容,并做好相关准备;同时对于法律中规定的负责实施此法的各个政府部门来讲,也预留了足够时间来制定具体实施细则和配套制度,培训工作人员,确保立法目的之实现。

 

小结:《境外非政府组织境内活动法》的颁布实施势必会对业已进入和准备进入我国境内活动的境外非政府组织产生一定影响。原先由于法律秩序的缺位,导致大量境外非政府组织面临发展困境。本法之颁布,尽管规则层面并非十全十美,但是,毕竟从无法可依过渡到有法可依。原先合法性困境有望得到纾解。

 

不可避免地,作为登记管理机关的公安机关面临挑战。首先,公安机关作为登记管理机关所引发的关切和担忧还会继续,如何消除不必要的担忧,真正实现本法所确定的多重立法目的,是公安机关在日常监管和服务过程中所要认真对待的问题;其次,目前尚不能预测此法颁布会出现境外非政府组织代表机构的“登记井喷”,但是对于想长期在中国境内从事非营利事业(包括公益慈善事业)的境外非政府组织而言,寻求代表机构登记无疑会成为首选。所以,公安机关要依法履责,做好登记环节的工作;再次,相关的便利措施和服务工作也应尽快提上日程,毕竟鼓励登记比惩罚不登记效率更高、成本更低;最后,尽管以非政府组织名义从事违法犯罪活动的数量不多,但是也不会绝迹。如何运用法律赋予的权限,依法采取法律手段,也将考验公安机关依法行政的能力。

 

全球化背景下,中国与世界之间的联系会越来越丰富和紧密。我国的社会组织已经开始走出国门,也将面临行为地国家相关法律的规制。如何为走出去的中国社会组织提供良好的服务,也是需要深入研究的新课题。

 

还是那句话:相信和期待境外非政府组织与开放的中国继续前行。

Professor, Law School, Peking University

Translated by Gregor Grossman and Wu Weiming

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