Professor Jia Xijin: the First Six Months of the ONGO Law’s Implementation

中文 English

Editor’s Note

On the 28th of July, Professor Jia Xijin from Tsinghua University’s School of Public Policy and Management gave a talk at CDB’s workshop on Overseas NGOs Registering in China. Using a selection of data, Professor Jia gave an overall picture of what has happened over the first six months of the Overseas NGO Law being implemented, with particular reference to the registration of overseas NGOs. The following is the text of Professor Jia’s talk. A few minor edits have been made.

JXJ

I’ve reviewed what’s been going on regarding the implementation of the ONGO Law over the six months that it’s been in force, and I’d like to share it with you today. I take the perspective of an observer to look at the overall situation.

1. Registration: the overall situation

The first thing to look at is timing. The Law was promulgated in April last year, and went into force on the 1st of January this year. First, note that some aspects of the preparatory work had already been completed before the 1st of January. Part of this work included some of the most important supplementary documents alluded to in the Law, including the lists of professional supervisory agencies (PSU). Then there were the procedures for putting activities on record (bei’an), a platform for coordinating implementation, and the Ministry of Public Security’s (MPS) service platform website going live. Then after the 1st of January two more documents were released. One was on taxes, issued by the State Administration of Taxation. The other was about bank accounts, issued by the Bank of China. This was the main preparatory work that took place.

If we look at the implementation by law enforcement, on the MPS service platform there were links for 32 provinces (including municipalities directly under the central government and autonomous regions). Looking at the links themselves, within a month of the Law going into force about half of the provinces had set up webpages and almost half had issued provincial level PSU lists. We know that the MPS itself does not register representative offices; all registrations must be done at the provincial level, and so it’s at this level that the effect of the Law’s enforcement is decided. It’s already been more than six months. So, what is the situation now? There are four provinces that still haven’t set up online service platforms, including Shanxi, Henan, Ningxia, and Inner Mongolia. Inner Mongolia’s platform hasn’t gone live yet; the other three link to the MPS website but there is no other information there. There are still six places that haven’t issued their provincial level PSU lists yet. These are Jilin, Xinjiang Bingtuan (military corps), Shanxi, Henan, Ningxia, and Inner Mongolia. Four of them – Shanxi, Henan, Ningxia, and Inner Mongolia – still don’t have their PSU lists or their links ready. The other two – Jilin and Xinjiang Bingtuan, have their links up but haven’t issued their lists yet. This is how implementation stands at the moment.

Now let’s look at the results of the Law’s implementation. We can see in terms of registrations, the first batch of registrations happened in January in three different places, Shanghai, Beijing, and Guangdong. Between them they had 31 organizations and 32 certificates, as one of the organizations registered two representative offices. Most of them were in Beijing, and all 20 of those were transferring their registrations. These were overseas representative offices of foundations that were originally registered with the Ministry of Civil Affairs (MCA), and were directly transferred from the MCA to be registered with the public security departments. Shanghai had one organization – Project Hope Global – that was originally registered with the MCA. The others were basically economic-related trade associations or chambers of commerce that had originally been registered with the Bureau of Commerce. So, we could say that for the first lot of organizations, it was basically a hand-over process or a process of transferring registrations, and the entities involved were the overseas representative offices of foundations that had originally been registered with the MCA.

1

Let’s have a look at the timing. To date there’s been a total of 156 organizations registered, and they were basically all concentrated across three months: January, April, and May. Why did we have peaks during these three months? As you can see, they’re all concentrated around the same few days. In other words, we’ve got a number of registrations that came all at once. These include the 32 we saw in January, and then on the 10th of April there were nine in Yunnan. These nine were also transfer registrations. Then there was a big number of new registrations on the 31st of May in Shanghai, these 20 were all under the same PSU, the Shanghai Economic Relations and Trade Commission, so all the newly registered organizations were economic-type organizations – trade associations and chambers of commerce. We can see that the registrations that happened in batches are very obvious, whereas the others are very scattered, with one or two to a province, and there were a lot of cases where it was just one.

2

If we look at the spread of PSUs, we can see that the greatest concentration is under the State Council. Altogether so far there are 49 ONGOs with PSUs at this level. These PSUs include ministries and departments, national associations, and other bodies at the national level. Altogether there have been 49 cases of registrations with PSUs that have the word “national” in their titles.

Out of the other PSUs, there’s a real concentration in Shanghai, where there are 34. But this isn’t the number of PSUs, this is the number of organizations that PSUs have registered. In Shanghai there are 34, in Beijing 10, Guangdong 10, and Yunnan nine. This is the number of registrations. If we look at the way PSUs are distributed, we can see that apart from the State Council, Shanghai, Beijing, Guangdong, and Yunnan, the majority of other places have only one or two active PSUs.

To date there are still 12 localities that have had no registrations. These 12 provinces haven’t registered a single organization. In over six months, not a single representative office has been registered in these places. These 12 localities include Hebei, Zhejiang, Anhui, Hainan, Qinghai, Xinjiang, Jilin, Xinjiang Bingtuan, Shanxi, Henan, Ningxia, and Inner Mongolia. And among these, Shanxi, Henan, Ningxia, and Inner Mongolia haven’t done their initial preparatory work either.

We can see a number of levels emerging here. At the first level, we’ve got those that still haven’t done any preparation work at all; at the second level we’ve got those that appear to have been getting things done – they’ve issued their PSU lists and set up their links – but in reality haven’t made any progress in their work. Now it might be that the public security departments have moved forward with their work but the PSUs haven’t come and taken the baton; or it could be that there’s some problem in coordination. But what we do know is that in terms of the formalities they’ve been making progress but in reality they haven’t. There are 12 places like this with zero registrations.

Of those that have already begun registering organizations, there are a lot that have only registered one. What we are actually seeing is that there’s only a very limited number that have genuinely begun processing things according to procedure, so that they can register a batch at a time. In all of this, the PSU plays a very big role. Out of those with the greatest numbers of registrations, the Shanghai Economic Relations and Trade Commission has become the PSU for 32 organizations and as I just said 20 of those were all part of the same batch. The other 12 came separately. Also, these weren’t just transfer registrations, a lot of them were new registrations. This is the most striking thing about the Shanghai Economic Relations and Trade Commission. Then there’s the Chinese People’s Association for Friendship with Foreign Countries (CPAFFC), which has become the PSU for seven organizations. This includes some of those organizations that we’ve all been paying attention to, or you could say have a kind of symbolic influence, they’ve actually all got the (CPAFFC) acting as their PSU.

The 11 organizations that the MCA is acting as PSU for are all transfer registrations. They were originally registered with the MCA and now they’ve been transferred to the MPS while the MCA has become their PSU. Altogether 20 organizations have been transferred. For half of them, the MCA is acting as PSU itself. The other half have been spread around under other PSUs.

3

Let’s have a look at registration based on locality. The distribution of registrations by locality is largely like the distribution by PSU. But there are some differences, particularly when it comes to the registered locations of those organizations under the ministries and departments of the State Council, which can be a bit more spread out. Out of the 49 organizations under national level PSUs, 44 are in Beijing, and the others are spread across Guangdong, Shanghai, Shandong, and Jiangsu. Overall, there are 54 registered in Beijing, 35 in Shanghai, 12 in Guangdong, and nine in Yunnan.

This is a list of all the PSUs to date. In other words, all those that are fulfilling their duties and acting as PSUs. We can see the list issued by the MPS, but the number of PSUs named on that list is far greater than the number we see here. Looking at the different types on the list, altogether there are 15 PSUs that are ministries or departments under the State Council. Between them, they have already begun acting as PSUs for 49 representative offices. At the local level, there’s a total of 41 PSUs, which are now between them acting as PSUs for 107 organizations. Those that are acting as PSUs to a larger number of organizations are the MCA, which has 11 organizations under it, the CPAFFC which has seven,and the State Health and Family Planning Commission which has five. The others have roughly one to three. At the local level, the Shanghai Economic Relations and Trade Commission has become PSU to 32. Then there’s the Beijing Municipal Commission of Commerce, that’s acting as PSU to eight organizations, the Guangdong Commission of Commerce that is PSU to six, and the Health and Family Planning Commission of Yunnan Province that is also PSU to six. For all the others, we can see that the great majority have become PSUs to only one organization.

So, if we look at the spread of PSUs we can see a trend emerging. Only a portion of those that qualify as PSUs are in fact acting on this duty. The relative concentration is also notable. Almost half of the organizations registered so far are concentrated across only a handful of PSUs.

4

Let’s take a look at this pie chart. It shows the scope of activities of those already registered, including those operating in a single province, in multiple provinces, and nationwide. Each of these make up about a third.

The pie chart shows that it’s not only representative offices registered with PSUs under the State Council that operate on a national level. It’s also common to see those registered with PSUs at the provincial level operating at the national level or across different provinces. This is something that’s being tested out in the process of implementation, as the Law itself isn’t explicit on this. The PSU might be at the national level or at the local level, while all registrations take place at the local level. Before the Law began to be implemented, there was a lot of discussion about whether it would only be organizations registered in Beijing, with a PSU under the State Council, that could operate on a national level. But in practice the Law isn’t being implemented in this way. In other words, there’s no connection between the scope of your operation and the PSU you’re linked to. You can register in any province, and your PSU can be a provincial level one or a national level one, and you can still operate on a national level or across different provinces. It’s quite common for this to happen.

We can see that although the proportion of organizations with PSUs at the national level is higher, there is also a high number that have provincial level PSUs that are operating on a national level, and even more that are operating across different provinces. So, when an organization is registering a representative office we can see this as a kind of interregional registration. For example, I register in Province A, but I want to carry out activities in Province B; I’m registering in Province A but in fact I want to operate in provinces A, B, C, D and E; or I’m registering in Province A but I am active nationwide. All these scenarios are possible. If the PSU is at the local level, you can still operate at the nation level. I imagine that this is something that the MPS has made its own internal coordinating arrangements on, so that it doesn’t matter which province you’re registered in, within their system they can coordinate and unify enforcement. This makes interregional registration feasible.

Then there’s multiple representative offices. We’ve seen that World Vision has registered the most representative offices. There are about ten other organizations that have registered more than one, and most of these have registered two.

 

2. Filing temporary activities

We’ve just been looking at the situation in terms of registrations, let’s now talk about the filing of temporary activities. When I looked at the data on the 25th of July there were 187 temporary activities that had been put on record. Overall this number is very low. There are already 156 registered representative offices but only 187 recorded temporary activities. Of these activities, it might be that one organization has registered ten. Because an “activity” is a relatively small thing, in fact the progress here has been much slower than it has with the registration of representative offices. At first both those of us who were watching and the public security bureaus might have all been thinking that it would be relatively difficult to register representative offices, so organizations could first put their temporary activities on record and get going with their work, but what we’ve seen in practice is the opposite. It has in fact been the filing of temporary activities that has progressed very slowly. You could even argue that sometimes filing temporary activities is the more difficult thing. This is something that merits watching.

5

The ONGO that’s put the most activities on record is Oxfam, with a total of 35, followed by the Hong Kong 香港慈善基金会 with 11, and World Vision with ten. The Chinese partner that’s put the most activities on record is Beichuan in Sichuan. This is because back at the time of the earthquake, they set up a work platform. Now they’ve put a total of 17 temporary activities on record.

The places with the greatest number of temporary activities on record are Guangdong, Sichuan, Beijing, Shaanxi, Guizhou and Yunnan. There is some overlap with the provinces we just looked at in terms of the registration data, but there are also differences. Let’s look at the cases where the activities are not in the same place as the location of the Chinese partner organization, so for example when an ONGO finds a Chinese partner organization in Province A but then carries out their activities in Province B. So far there are 15 instances of this happening, in other words the place where the procedure to put the activities on record takes place is not where the activity is to be carried out. These 15 were mostly in Beijing, Shanghai, and Shaanxi. This tells us that it’s relatively acceptable in these three places to put your activities on record there and to carry out those activities in a different province. For example, a college is holding a conference or a university organization is going to carry out poverty alleviation activities in a poor region, so there Chinese partner might be in Shanghai, but the poverty alleviation takes place in a county somewhere else. This is why we get cross-provincial cases.

When the ONGO is doing a project aimed at the vulnerable, the Chinese partner might be a school or a Chinese service organization. The project they’re planning is in another place, for example a poorer place, so we see that sometimes the location of the activities is different from where the Chinese partner organization is based. Also, we’ve seen that Shanghai and Hubei have both undertaken procedures to put activities on record that are national in scope. Although there are only a few examples of this, it’s something very significant. Some activities would be impossible if every specific activity right down to the smallest thing had to be filed, it would be very difficult to achieve, and so what we’ve seen here means that your activities can be big or small, the scope can be tiny or it might even be nationwide. What we’ve seen so far is that the places that have carried out the most filings so far are Guangdong, Beijing, and Sichuan, while there are eight provinces that have put zero temporary activities on the record.

 

3. Concluding observations on implementation

From this data, we can identify certain trends so far. First of all, in terms of who has been able to register, the majority of those already successfully registered have been transferal registrations. The first batch were all transferals, but then we gradually saw a number of new registrations. The most important question is who will be able to complete a new registration. For those organizations that were already registered in China, the process of transferal was basically just a case of continuing their original situation. But for those that had never been registered in any way with the civil affairs authorities or the departments of commerce, the new registrations are connected to the type of organization and the attitude of the local PSUs.

First of all let’s look at the type. The majority of new registrations have been made by commercial or economic-type organizations, for example economic-related trade associations and chambers of commerce, which have found it easiest to make the breakthrough and register successfully by following the legal procedures. It is also linked to location, for example we have seen a relatively large number of new registrations happening in Shanghai, Guangdong, and Beijing.

Another important factor is the mentality of the PSU. It is very important whether the PSU acknowledges what you do, and whether they see it as something that is going to promote development. If the PSU accepts an organization from the conceptual viewpoint, then the procedures are relatively easy to get through, including the public security department’s coordination on procedures and its approach to service. On the whole it will all go very smoothly. Take for example the Shanghai Economic Relations and Trade Commission. Since there is a long history of experience in managing economic-type organizations in Shanghai, and experience brings a change in thinking, in its own experience the Commission will have realized the value of ONGOs, and so this makes it easy for the idea of an organization to be accepted. Once the idea has been accepted, the different procedures and the cooperation, service and help of the public security department all comes pretty easily. The difficulty lies in that little point right at the beginning that gets the ball rolling.

In fact, it’s not only ONGOs, it’s the same for Chinese organizations. Economic type organizations in China, out of all our domestic social organizations, are always seen as the ones that get priority in development, because economic development brings social development, so people have a better understanding of this kind of organization; they’ve had more experience of them; and they’re seen as more “pure”, with their development aims being more in keeping with China’s own goal of promoting economic development. In comparison with economic organizations, it’s more difficult for other types of organization to find recognition, and this is determined by the experience of the PSU: if its mentality is more open, if it has a broader view of things, then it is more likely to be able to accept other kinds of organizations.

What we’ve seen to date is that based on this, so far only about one third of PSUs have been fulfilling their duty to serve. At present, out of the 42 different agencies named as PSUs on the lists issued by the State Council and the MPS, only 15 are actually shouldering this responsibility. In other words, two thirds are still not acting on their duties. Of course among these there are some that don’t have ONGOs operating in their fields, but for others there are a lot of ONGOs operating, and ONGOs have reached out to them, but they haven’t been willing to act on this responsibility. This presents us with a problem: the Law attaches this responsibility to these PSUs, but if in practice the PSU does not act on its duties, what can be done about it? We’ve seen that in practice at the moment there is no institutionalized channel that can help us address this problem, and even the public security departments have no way around this. There is no way to force them. Unless we are to take them to court that is, but this isn’t a way to solve the problem.

The public security bureaus and the PSUs have done a lot to coordinate work, but this role so far has been up to the individual efforts of people in these bodies and hasn’t become institutionalized. In practice the central problem for those organizations that have not yet registered is still the problem of finding a PSU.

But how can we solve this problem? We can try taking a few different routes. For example, if at the moment there is an agency that doesn’t appear on the list of PSUs but could feasibly be a PSU, the lists can be updated at any time. These lists are only the first version for 2017, and can be updated whenever necessary. So if you can find a potential PSU, but this agency isn’t on the list, it’s not a big problem, you can have the agency go to the public security bureau and apply to become a PSU. That’s one way to go about it.

Another approach would be to try registering in a different locality with a different department. For example if your organization operates on a national level but you’re unable to find a national-level PSU to sponsor you, you could try registering more than one representative office, and you can operate on a cross-provincial basis. For example, if you find it’s difficult to operate in one particular province, but it’s relatively easy in a neighbouring province, you can register or record your activities in the neighbouring province and then carry out your activities on a cross-provincial basis. This is another potential option.

In terms of law enforcement, from January 1st 2017 any behaviour by any organization that has not registered or has not completed procedures to put temporary activities on record could be entering illegal territory. This is clearly unreasonable. But from the way the Law has been enforced we can see how Chinese law and its enforcement have a way of adjusting to each other, our law actually has very broad boundaries, and when it comes to enforcement it isn’t completely inflexible, the boundaries aren’t being so strictly abided by that if you happen to do something touching on such-and-such a clause then someone will come after you to enforce the law. The reality is that there are still a lot of ONGOs that haven’t yet registered or put their activities on record but are carrying out borderline activities.

What do I mean by “borderline”? What I mean is whether an organization should go and register, or whether its behaviour constitutes “activities” as understood in the Law. There are a lot of blurred lines involved here. Our enforcement offices haven’t been completely rigid about things and said “look, if you haven’t put something on record then your every move is in violation of the law.” They are looking at your activities themselves, so that if what you’re doing is something good, and there is no clear illegal practice going on, then the enforcement offices haven’t been utterly inflexible, telling you that your every move needs to stop. What we’ve seen is law enforcement that is combining legality with legitimacy. If your behaviour is quite clearly some kind of illegal behaviour, or by definition you are clearly breaking the law, this may become the basis for the law being enforced, but other than that an enormous amount of behaviour falls into a grey zone. When this is the case the law enforcement departments consider how appropriate an activity is, whether it’s a good thing or not, if there is any problem with any of your behaviour, and if you’re breaking any laws. Where the Law isn’t clear on something, it’s not used as a precedent to enforce the Law.

So, from the first day following the Law’s promulgation we can see that the biggest problems with it is that its definitions aren’t clear and its concepts are vague. The implementation process is actually a process of re-legislating, and in this process we can see that a lot of things that were unclear in the Law have been gradually given some definition in practice. But there are still some problems that have not yet been solved. The first is determining the rules for who the Law is directed at. At the moment the public security departments are working on this. But who exactly is the Law targeted at? The Law just says non-governmental, non-profit social organizations like associations, foundations, think tanks, but this is very vague and these are not legal concepts. This makes it very difficult for the departments charged with enforcement.

In some countries, an organization might be registered as a company, but is also known as an association, a foundation, or a think tank. In this situation, should the organization be seen as falling within the scope of the law? This is something that still hasn’t been completely cleared up, and there is an enormous amount of work to be done here, because every country’s concepts are different. And then there’s the even more difficult issue of defining activities, particularly temporary activities. What is an “activity”? We’ve seen some real chaos recently in the system of putting temporary activities on record. Some are saying that issuing an invitation to someone is an activity. Is that an activity? If that were the case then every time a person comes to work for an ONGO they’d have to go and put it on record. The work involved with that would be something else. And yet some people are still treating this as a temporary activity and going to put it on record. But does it count or not? This is all to the effect that the boundaries of what constitutes a temporary activity just become even more blurred.

For ONGOs, their biggest difficulty is the PSU. Recently we’ve seen further evidence that the responsibilities of PSUs are unclear: what exactly their responsibility is, and how those responsibilities should be fulfilled, what the legal basis to check their performance is, none of this is clear.

Another issue that’s even more important is the problem of incentive. It’s not just a case of avoiding responsibility, in some places the departments of public security even share responsibility with the PSU, but the PSUs are still not willing to play their role. In other words, sometimes it’s not entirely an issue of them worrying about responsibility. A lot of the time it’s that the PSU doesn’t have the motivation, there’s no incentive mechanism to make them do it. We need to ask what can be done about it in this kind of case.

Then there’s the issue of who responsibility falls on for supervision after registration. Should it be the public security bureau or the PSU? In the supervision of activities after registration, so far the problems I’ve seen most of have been related to bank accounts. The Law says they can accept other types of legal income, for example funds not directly solicited or income from services, but their bank accounts can’t play this function, so this is a problem in the management of activities after registration.

In terms of the problem of thresholds to registration we were originally most concerned about, for example registering multiple representative offices, the cost of registration and so on, at the moment, these all seem to be things that the majority of ONGOs can deal with, and are able to solve. The next step is to look at mechanisms to push things forward.

贾西津:法律实施半年观察

2017-08-08 11:36:36  来源:中国发展简报  作者:中国发展简报    点击数量:787

 7 月 28 日,由北京益行公益信息交流服务中心“中国发展简报 (China Development Brief)”在京举办的“境外 NGO 在华注册工作坊”上,清华大学公共管理学院副教授贾西津博士作了题为《法律实施半年观察》的主题发言。从数据上分析了《境外非政府组织境内活动管理法》实施半年来法律执行的总体情况。以下内容为贾西津博士演讲实录,略有删节。

JXJ

我对境外NGO法执行半年的实践做了一个回顾,想跟大家分享一下。从一个观察者的角度看这部法律的执行情况。

 

一、登记注册总体情况

第一就是法律实施的时间点上,这部法实际是去年4月颁布,今年1月1日开始执行。首先,在1月1日之前我们发现有几个方面的准备工作已经完成,一是法律里面所提到的一些最重要的配套文件,包括业务主管单位的名录,登记还有备案的流程以及一个协调平台,还有公安部的办事服务平台网站的开放, 1月1日之后又发了两个文件:一个是关于税务的文件,国税总局发的。一个是关于账户管理的文件,中国人民银行发的,这两个文件也已经发布。以上都是法律实施前的一些重要准备工作。

如果从执法者法律实行情况来看,在公安部办事服务平台上32个省市、自治区链接全都在,从链接的情况看,在法律实施的第一个月,我们看到基本上有一半稍多建立了专门的网页,有将近一半发布了省级的业务主管单位目录。我们知道公安部不登任何的代表机构,所有的登记都要在省市,所以省市决定了法律执行的效果,1月份基本上一半的情况,到目前截至到昨天,已经有半年多的时间了这个情况是什么样呢,网上还没有建立办事平台的有4家,分别是山西、河南、宁夏和内蒙古,其中内蒙古是暂未开放,其它三家就链接到了公安部的网页上面,没有进一步的信息。省级业务主管单位目录还没有发布的是有6家,分别是吉林、新疆兵团、山西、河南、宁夏和内蒙古。其中山西、河南、宁夏和内蒙古这4家是目前业务目录以及办事大厅的链接都没有准备好。吉林和新疆兵团是做了链接,但是没有发布目录。以上是法律实施的情况。

最后看看法律实施的效果,我们以登记和注册的组织来看,第一批登记是在1月份,有3个地方,上海、北京、广东共有31家机构领了32个证,其中有一家登记了两个代表机构。这些机构北京的最多,这20家全部是转登记的组织,也就是原来是在民政部登记的基金会境外代表机构,现在是直接由民政部转到了公安部门登记。上海有一家世界健康基金会原来是民政部登记的,其它几家基本上都是原来在工商部门登记经济类的行业协会商会,所以可以认为第一批登记的组织,基本上是一个移交的过程或者是一个转登记的过程,主体以原来民政登记的基金会境外代表机构为主。

CH1

我们从时间点上来看一下,到目前为止一共登记了156家,基本上集中在1月、4月和5月这三个月,这三个月为什么出现这样的峰值?你看到都是集中的那几天,也就是说会有集中的若干批,这些批就构成了我们目前登记的主体,这些批包括了我们看到1月份就有32家,到4月10日云南有9家,这9家也是个转登记的情况。还有一个很大的数量是5月31日上海新登了20家,这20家是一个业务主管单位,上海的经贸委,所以新登记的全部是经济类的行业协会商会。我们看见成批登记的现象非常明显,而其它的都非常分散,各省的一家或者两家,一家的特别多。

CH2

再看看业务主管单位分布情况,业务主管单位分布最集中的是国务院,有49家,这个包括了国务院相关部门以及全国的协会和单位,就是带国字头的一共49家。其它的业务主管单位重点分布在上海34家,这个是登记的组织数,不是业务主管单位数量,是这些业务主管单位他们登记了这么多组织,上海34家,北京10家,广东10家,云南9家,这个是登记数。那么业务主管单位分布图,大家能看到除了国务院、上海、北京、广东、云南之外,其它大多数就是一两家比较多,目前我们看到零登记的有12个地方,也就是这12个省市自治区半年多没有一家组织,没有一家代表机构获得登记,这12个地方分别是河北、浙江、安徽、海南、青海、新疆、吉林、新疆兵团、山西、河南、宁夏和内蒙古,其中山西、河南、宁夏和内蒙古他们前面所有的准备工作没有做。这样我们可以看到几个层次,一个层次是任何准备工作到目前为止都没有做的,第二个层次是形式上做了,发布了省的目录,做了链接,但是实际上这个工作没有进展,这个进展可能是公安部门做了,但是没有业务主管单位去接手,也可能是协调有问题,总之就是形式上面做了但是实际没有效果的,这样有零登记12家。

在已登记的里面一两家的也很多,实际上我们看到,真正流程化地、能够成批去登记的地方仍然非常有限的,这说明这个法律执行的时候一定会有成批或者规范化推进的时候。其中,业务主管单位在里面起了相当大的作用。登记数最多的,我们看到第一位的上海市商委32家,它主管了32家机构,而且刚才我说了,它20家是一起批的,还有12家分散批的,而且这些里面不仅仅是转登记的,还有很多是新登记的,这是上海市商委最突出的地方。还有中国人民对外友好协会登记了7家,包括像我们最关注的几家或者说有象征影响的这几家机构,其实都是在友协作为其业务主管单位。另外,民政部的11家全部是它原来转登记过来的,它原来在民政部登记,现在转到公安部门,它就成为了业务主管单位,所以一共是转了20家,其中有一半是它自己做业务主管,有一半是分散其它做业务主管单位。

CH3

我们再按照注册地去看,注册地和业务主管的分布大体相同,但有一点点差异,特别是像国务院部门主管的机构注册地可能是分散的。国务院主管的49家注册地在北京的有44家,其它的分别在广东、上海、山东和江苏各有一两家。从注册地划分它的分布是这样的,北京最多54个,上海35个,广东12个,云南9个,所以这个是注册地的分布,这个和业务主管单位大体有类似,但是也有不同。

这个是目前所有业务主管单位,或者说履行了职责的业务主管单位目录,我们看到公安部已经发了业务主管单位的名录,那个名录之中的名字远远比这个要多。从名录的分类上面看,国务院部门单位一共有15个业务主管单位,共主管了49家代表机构,地方一共有41个业务主管单位,共主管了107家机构。业务主管单位做的比较多的一个是民政部门有11个,友协有7个,国家卫计委有5个,其它的基本上1-3个,地方的就是上海市商委最多32个。然后北京商委8个,广东商委6个,云南卫计委6个。其它的我们看到大量的大多数的基本上主管一个的居多。所以从业务主管单位分布上看也可以看到一个特点就是,只有部分有资格的业务主管单位履职了,第二个就是集中性挺明显的,其中大概有将近一半是集中在几家业务主管单位上。

CH4

我们看到登记的活动领域这个图,也就是目前登记的代表机构单省活动、多省活动和全国活动的大概各占三分之一。

这个图显示这些代表机构,全国活动的不仅仅是可以由国务院做业务主管单位,地方业务主管单位登记的全国活动和跨省活动是很多很常见的,这也就是我们在执法过程中的一个试法,法律没有明确说,业务主管可以是全国层次,可以是地方层次,登记全部要在各省市,但并没有给一个对应的关系,所以最开始法律执行前,大家讨论说那是不是只有登记在北京,由国务院部门作为业务主管单位才能进行全国活动,从实际执法情况看,这个执法的试法含义不是这样的,也就是活动领域和业务主管单位之间没有关系,你可以登记在任何地方,可以是省级或者全国级别的业务主管单位都可以做全国活动或者跨省活动,而且这种情况并不少见。

我们看到,虽说国务院做业务主管单位全国登记的比例更高,但是由地方做业务主管单位他的全国活动数,特别是跨省活动数一点儿都不低,所以这样我们代表机构在登记的时候是可以考量它是一个跨地区的登记,比如说我登记在A省,其实我在B省活动,或者我登记在A省,我实际上在ABCDE省活动,或者我登记在A省,但是我在全国活动,其实所有的这些可能性都是可以的,业务业务主管单位也是地方可以做全国活动的,这个实际上我想是公安部门内部也做了相应地执法协调,就是你不管是登记在哪个地方,那么它其实系统内部会去协调统一进行执法的,这样给跨省登记带来了可行性。

还有就是多代表机构注册的情况,我们看到宣明会这个是注册代表机构最多的,其它的大概还有10来家组织都注册了多代表机构,两家的最多。

 

二、临时备案情况

刚才说的是登记的情况,那么下面来说临时活动备案的情况,到7月25日我统计的时候是187件,从整体上看,这个登记备案活动数量应该说是非常少的,代表机构都已经有156家了,而活动才有187个。这些活动中可能有一个组织注册了10个活动,因为活动是很小的单位,所以从这个意义上说临时活动备案的进展远远比代表机构登记要慢。当时包括我们观察者、公安部门也会认为代表机构注册比较难,那机构可以先采取临时活动备案把工作先去开展起来,但事实上我们现在看到这个是反的,就是临时活动备案恰恰进展更慢,甚至说有的是更难,所以这个是特别值得去观察的一个事件。

CH5

备案最多的境外非政府组织是乐施会,有35件,香港慈善基金会11件,宣明会10件。备案活动最多的中方合作单位是四川北川,这个是因为当时地震的时候,他们建起了一个工作平台,所以他们备案了有17件。

临时活动备案最多的地域是广东、四川、北京、陕西、贵州、云南,所以这个看到和刚才登记的地方有交叉,也不太一样的,那么活动地域不在中方合作伙伴所在地的,换言之就是一个境外NGO它找到了一个A省的合作中方合作单位到B省去开展活动,这种情况一共有15件,也就是实际上登记地不是它的活动地,那么这15件主要就是发生在北京、上海和陕西,也就是在北京、上海和陕西更加可以接受到其它省市开展活动,像学校开研讨会,还有高校的机构要到贫困地方去扶贫,所以合作伙伴可能是在上海,但是不是在上海扶贫,它要到某个县里面去扶贫,所以这样就造成了为什么会跨省。

境外NGO针对于弱势性的项目,合作伙伴可能是一个学校或者是中方的服务性机构,他们要开展的项目是到另外一个地方,一个更贫困的地方去,所以这个是为什么会出现活动地域不在合作伙伴所在地,另外我们看到上海和湖北各备案了一件全国活动地,也就是它的活动范围是在全国范围的,虽然很少,但这个非常有意义,因为有些活动没有办法,如果是每一个非常细小的活动去备案,实际上这个难度是很大的,所以这个含义是备案的活动可大可小,领域是可小可寡,甚至说全国都是可以的,从备案地看分布。我们刚才看到这几个备案地最多的是在广东、北京、四川,还有8个地方是零备案。

 

三、法律实施观察小结

 从这些数据我 们能看到如下特点:首先谁能登记,我们从目前已登记的组织来看,还是以移交为主,首批全部是移交的,慢慢地也开始有一些新设立的机构,到底谁能够新设立这是最有意义的,因为对于现有的组织而言,如果你原来已经是登记的,移交过程基本上延续原来,如果原来没有在民政和工商部门做任何登记,我们发现新设立的组织与类型、地区主管单位的观念有关系。

首先是类型,大多数还是以工商经济类为主,工商经济类的行业协会、商会最容易实现突破,最容易按照法律流程获得登记证书。也和地方有关,比如上海、广东和北京这几个地方新登记的组织相对比较多。

还有一个很重要因素是和主管单位的观念有关,业务主管单位它能不能够认可这件事情,或者说它是不是认为这是一件促进发展的事情,这个非常重要。如果它在观念上接受这个组织,实际上后面的流程很容易,包括公安部门整个流程的衔接性以及它的服务意识,基本上非常畅通。比如像上海商委,因为在上海,经济类的组织有长期的管理经验在那儿,经验会带来观念的转变,在上海商委在经验中它了解境外NGO的价值所在,就容易从观念上接受,只要在观念上面接受了,后面的衔接、协调、公安部门的配合,能够提供的服务和帮助其实都非常畅通,就是最前面的一个小启动点,实际上是现在的难点所在。

实际上,经济类的不仅是对境外NGO,在中国也是一样,经济类组织在中国所有社会组织中,总是被视为最优先发展的,因为经济发展将带动社会发展,人们对经济类的组织更了解,接触更多,而且它更加单纯,它发展的目标更加契合于我们推动经济这样的一个国家治理的目标,。与经济类相比。其它组织被认可就会难一些,这个取决于业务主管单位有更多的经验,要有更开放的观念,要有更大的视野,这样它才有可能会接受除了经济类之外,更多促进社会发展的综合类组织。

基于这样的特点,我们看到,目前业务主管单位的履职情况其实只有三分之一,也就是目前国务院、公安部门公布的业务主管单位名录里面有42家组织,只有15个目前承担了业务主管单位的职责,大约作为率只有三分之一,换之言还有三分之二现在还没有作为,当然其中有一部分它的业务领域本身就没有境外NGO,但也有一部分,相当的一部分实际上有很多境外NGO活动在,也有境外NGO去找,但是业务主管单位不肯承担这个责任,这就提出一个难题:法律上赋予业务主管单位这样一个职责,但是当业务主管单位不履职,不作为的时候怎么办?实际上,我们发现目前没有制度化的途径可以解决这个问题,甚至公安部门也没有办法,就是它没有强制性。除非我们说要诉诸于法律,但是这一点不是一个人们要去解决问题的方式。

公安部门和业务主管单位在协调机制上还是起了很多作用,但是这个作用仍然是一种人为性的,目前还难起到一个制度性的作用。实际上,现在对于没登记的组织而言,寻找业务主管单位还是核心问题。

这个问题到底怎么去解决?我们也可以尝试一些可选择的路径,比如说如果目前没有在名单的,但是有资质作为业务主管单位,这个名单可以随时补充。因为这个名单本身也是2017年第一版名单,是可以随时更新的,所以如果你可以先找到业务主管单位,而这个单位目前还没在这个名录上,这只是个小问题,可以让主管单位去公安部门申请,这是一个办法。

还有一个办法是在不同的地方、不同的部门尝试登记。如果机构是全国活动,但是找不到一个全国范围的业务主管单位,可以采取多家登记,多地域活动可以采取跨地域,在某一个省活动可能会比较难,但是它的旁边的省可能相对会容易,所以可以在邻省登记或者备案,然后进行跨省的活动,这都是一些可能的选择。

从执法而言,那么从1月1日开始,所有没有去登记和备案的组织的任何行为都有可能会进入到非法的领域,这显然不合理。从执法性上我们可以看到,中国的执法和中国的法律特点相适应,我们的法律其实有非常宽泛的界定,执法的时候实际上也不是一个死板的、严格按照界定的、你触及到法律条文我就要去执法。实际上,我们看到现在也有很多没有在登记备案,在开展边界性的活动的NGO。

什么叫边界性?就是这个组织到底要不要去登记?这个行为叫不叫作活动?其实有大量的模糊地带,我们的执法部门并没有非常硬性地说你只要没有备案一举一动都是违法的,它还是去看到你活动的本身,如果活动的本身是一个很好的活动,同时它不存在明确的违法现象,执法部门也没有很僵硬地说你任何事情一举一动都不能做了。我们看到执法本身结合了合法性和合理性,如果你的行为很明确是一个违法行为,或者说从定义上非常明确你就是在违法,这个可能会成为执法依据,但是否则的话大量的行为是在法律的模糊地带,这个时候执法部门考虑到合理性,就是这是一个好活动,你的任何行为都没有问题,你是不是违法,这个法律也说不清楚,这个显然没有构成执法的依据所在。

从问题上面我们看到,在法律颁布的第一天,我们从法条上看到这个法律最大的问题就是第一定义不清,第二概念非常模糊。而执法的过程就是一个再立法的过程,从这个再立法的过程我们看到有很多法律模糊的东西逐渐在被界定,但是还有一些目前没有解决的问题,第一还是规制对象认定,现在公安部门实际上也在做这个工作,到底谁是法律规制的对象?法律只是说社团、基金会、智库等非政府、非营利的社会组织,这个定义很模糊,它并不是法律意义上的概念。实际上这就给执法部门留下难题就是怎么去认定,在有一些国家,登记的是个公司,这个组织也叫社团、基金会和智库。这个时候是不是界定对象,所以这个是目前仍然没有被完全清晰出来,这个工作量其实非常大,它涉及到每个国家的概念都不一样。再有更难的就是活动的界定,特别是临时活动,什么是一个活动,目前我们看到备案的临时活动非常乱,有的邀请一个人叫活动,请一个人叫活动吗?那如果是这样的话,只要来自于境外的NGO的人他来中国都要去备案,显然这个量又不得了,可是有的人又会把这个拿去备案,所以这个算不算临时活动,这个临时活动更加没有清晰界定的。

对境外NGO而言,它最大的困难就是在业务主管单位,目前我们进一步看到业务主管单位一方面是它的责任不清楚,就是到底责任是什么,怎么去履行责任,依据哪些法律来去审核这个不清楚。

还有更重要的问题其实在于激励,不仅仅在于免责,甚至有些地方公安部门和业务主管单位来共担责任,但是业务主管单位有的都不愿意去做,也就是说它有的时候不完全是说担心责任的问题,很多时候是主管单位它没有动力,没有激励机制去做。那么这个时候不作为应该怎么办?

再有就是登记以后会面临到一个是管理主体在谁?公安还是业务主管单位?登记后的活动管理上我目前看到反映最多的资金账户的问题,就是法律说它可以接受其它的合法收入,比如说它可以接受被动的捐款或者服务收费,但是从账号上而言,它的账号是实现不了这个功能的,所以这个是登记后活动管理的问题。

从我们最开始担心的登记门槛问题,比如说多代表机构登记,组织的一致性,要找很多法人,然后登记的成本等等。目前看来对于大多数境外NGO而言是一个可承受的,或者说它是一个能解决的问题,下一步的我们就要关注推动机制了。

 

Translated by Holly Snape

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