Wang Zhenyao: in Future, Competition between Charities will be the Norm

法治周末

中文 English

This interview originally appeared in the Legal Weekly magazine.

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On September 1st, the “Charity Law of the People’s Republic of China” (referred to from now on as the Charity Law) will officially come into effect. The Ministry of Civil Affairs (MCA) has recently been very active in carrying out preparatory work of all kinds for the implementation of the new law.

On July 15th, the MCA began soliciting comments from the public on the Measures for Identifying Charitable Organizations (Draft for Public Consultation); on the 20th, the MCA began to carefully select the first group of online public fundraising platforms for charitable organizations; and on the 29th, the MCA began soliciting comments from the public on the Measures for Managing Public Fundraising among Charitable Organizations (Draft for Public Consultation); three days later, the MCA further published the Regulations on the Registration and Management of Social Organizations (Draft for Public Consultation of the Revised Version), while the Temporary Regulations for the Registration and Management of Civil Non-Enterprise Work Units and the Regulations on the Management of Foundations have already been scheduled for revision.

Why has the MCA issued a set of supporting policies on the eve of the implementation of the Charity Law? How has the government managed to strike a balance during the policy formulation process? How will charity organizations face up to the new challenges? To find out, Legal Weekly spoke with the director of the China Philanthropy Research Institute, Wang Zhenyao, who has long been active in the public welfare sector.

Setting up a comprehensive support system is crucial

Legal Weekly: the Charity Law will come into effect soon, on September 1st, and the MCA has recently released a flurry of related policy documents. Do you think it is right for the MCA to do its utmost to establish a perfect set of supportive measures prior to the official implementation of the law?

Wang Zhenyao: That’s how it should be from the perspective of government requirements and legal standards, and central as well as local governments should do their utmost to establish comprehensive policy support systems. Laws must be implemented, so we should take care of the things that can be foreseen first, while those that cannot be foreseen should be taken care of through revision and optimization when complications arise.

Legal Weekly: Work on revising the “Three Major Regulations”[1] in accordance with the requirements of the Charity Law is ongoing and the MCA has drafted the Measures for Identifying Charitable Organizations, as well as abolishing the “dual management system” for charitable organizations. Will these measures solve the difficulties previously faced by charitable organizations, especially grassroots organizations, during registration?

Wang Zhenyao: It is very easy now. On the one hand, there is no longer a leading unit, while on the other, county level civil affairs departments can now carry out registrations. Registering a foundation, for example, used to require the approval of the ministerial or provincial civil affairs authorities, which was too difficult. The law now states that county level civil affairs bureaus can give approval. Therefore, foundations and other types of charitable organizations will generally be able to register much more easily.

Public fundraising to rely on reputation after the status system is scrapped

Legal Weekly: The Charity Law liberalized the right to fundraise publicly, while the Measures on Managing Public Fundraising among Charitable Organizations (Draft for Public Consultation) published by the MCA provide relevant regulations on the criteria and procedures for obtaining the qualifications to fundraise publicly. Will these steps restrict the fundraising activities of non-public fundraising foundations and other organizations that have difficulty qualifying to fundraise publicly?

Wang Zhenyao: The filing system, which will be used in public fundraising from now on, will effectively abolish the distinction between public and non-public fundraising organizations. In fact, this is in line with international practice and means that there will no longer be a difference between public and non-public fundraising foundations. Instead, they must have been established for a certain length of time and have maintained certain standards before being able to file the necessary documentation to begin fundraising. Looking at the experience of Guangzhou, it is not only foundations but also other charitable organizations that can apply to carry out fundraising. In contrast to the old system based on status, in which public fundraising qualifications, once obtained, were retained forever, the new one is much more reliant on the reputation of the charitable organization. It creates favorable conditions for the development of charitable organizations but also brings with it competition and challenges.

Legal Weekly: Doesn’t the government need to establish detailed and unified requirements for rules on public fundraising?

Wang Zhenyao: International experience shows that public fundraising is not done haphazardly, but that after filing the necessary documentation, there are requirements for the time, place and methods of fundraising activities. A further lesson from abroad is the benefit of regulating these aspects within a relatively liberal overall fundraising framework.

When it comes to making more detailed regulations, however, there can’t be a universal standard since each county level civil affairs bureau is now able to give approval on fundraising. The specific date, time and other aspects cannot be standardized by the central government but should be handled according to local conditions in each area. Therefore, regulations will become more diverse.

Legal Daily: Online platforms were confirmed as being a part of the public fundraising model and the MCA is carefully selecting the first group of online public fundraising platforms for charitable organizations. However, the Charity Law does not provide detailed regulations on the standards and procedures for making this selection. Do you think there is a need to release a set of supporting regulations?

Wang Zhenyao: To my knowledge, the MCA is in the process of releasing relevant regulations, but I think this first selection is an excellent trial and can be conducted beforehand.

However, while online fundraising is a new challenge globally, future fundraising methods and activities, especially those used by young people, will change in the wake of technological developments and won’t be limited to these platforms. Therefore, this policy should be gradually adjusted along with the development of modern technologies, promptly follow new developments in society and continuously take steps towards standardization. While the law cannot have very detailed regulations in the initial phase due to our lack of experience, it will be continuously perfected as experience accumulates.

The MCA has gained great authority but also bears great responsibility

Legal Weekly: The Charity Law states that charitable trusts are classified as public welfare trusts and that the Trust Law will apply to items not yet regulated in the new law. Previously, however, public welfare trusts did not develop well in China. If the aim is to create an environment for charitable trusts to develop, isn’t it necessary to make corresponding revisions to the Trust Law or to issue further policies for the implementation of the new law?

Wang Zhenyao: To my knowledge, the relevant government departments, such as the MCA and the China Banking Regulatory Commission, are all paying close attention to charitable trusts. The reason public welfare trusts did not develop well in the past is that they did not have a leading unit, meaning that no one felt responsible; for charitable trusts, on the other hand, it has been made clear that the MCA is the leading unit. This means that the MCA is responsible. The law will face great challenges when it goes into effect and the MCA will bear responsibility if the implementation does not go smoothly. Therefore, I am sure the MCA will push to have a complete set of relevant laws and measures in place as soon as possible.

Legal Weekly: While it was seen as great news that the Charity Law allows charitable organizations to enjoy tax benefits, there were also those who criticized the regulations for relying only on principles instead of providing detailed rules on implementation. What is your view on this?

Wang Zhenyao: While a piece of legislation naturally requires all manner of strict and detailed rules, the Charity Law is already a step in the right direction. It is relatively detailed, containing more than 100 articles, and not that abstract. However, when a piece of legislation is put into practice, it requires the relevant administrative bodies to release more detailed measures and standards accordingly.

In this regard, there is no room for delay, since the Charity Law will go into effect shortly and contains more than 20 articles that relate to and clearly give leading authority to the MCA. This is different than in the past, when the responsible party was not identified. The MCA has gained great authority but also bears a much greater responsibility. In practice, directly naming specific departments is extremely beneficial to putting the law into force. Unlike in the past, I believe the implementation of the new law will no longer be characterized by an overreliance on broad principles, vagueness and a shirking of responsibility.

Grassroots organizations must “grow” to become more specialized and professional

Legal Weekly: While the Charity Law calls for promotional measures, such as government procurement of services, it seems that these resources have gravitated more to organizations with an official background in the past, while grassroots organizations have had difficulties obtaining funds. How do you think this particular problem can be solved?

Wang Zhenyao: Over the years, not many grassroots organizations have managed to grow up. I have spoken up many times about the fact that I don’t support using the term grassroots organization. The provisions of the Charity Law, including those on government procurement, require the organizations we previously referred to as “grassroots” to become more specialized, as well as more professional.

When I discussed this problem with staff at the MCA they were also extremely distressed. Currently, many “grassroots” organizations have only a single social worker, so when procuring services for the elderly, children, the disabled or the mentally ill, it’s all done by that one person, all manner of services are provided by the same person and they are often entrusted by small organizations. Is that the path towards specialization and professionalization? It is difficult for the government to implement the purchasing of services. One aspect is that procurement itself is difficult, while another is that it is difficult for the civil affairs bureaus to implement procurement.

Therefore, people can’t just call on the government to be more fair. If small organizations simply keep repeating the term “grassroots” without specializing and professionalizing, the government has no way to purchase their services. After the implementation of the Charity Law, I’m afraid the difference between “grassroots” and official organizations will cease to exist. It is no longer an organization’s status but competition based on the degree of specialization and the ability to provide services that will be decisive.

This will require small organizations to study more, seek consultation, engage in training and welcome new challenges. I think the period after the Charity Law goes into effect will be a learning process for all of society that everyone needs to participate in. In fact, our civil society organizations and charitable organizations should improve themselves rather than rely solely on the government. I always remind people that the time to challenge ourselves has come.

Both government and civil society have to play their role

Legal Weekly: The Charity Law stipulates standards for the annual management expenses of public fundraising foundations while at the same time giving the MCA, the Ministry of Finance and others the authority to determine standards for the annual expenditures and management expenses of non-public fundraising charitable organizations. Do you think it is necessary for the MCA and others to release a corresponding policy to regulate this?

Wang Zhenyao: It’s possible [to release such a policy], but not necessary. Everyone understands that there are two types of foundations out there, operating and grant-making ones. In practice, many of those engaging in charitable work involving children and the elderly have high costs that can add up to 80-90% of total expenditures using basic accounting methods. When deciding how to deal with these foundations, however, it’s not suitable to hold open discussions and publicize new rules, since the public will have difficulty understanding these at a time when everyone still lacks experience. For now, we can only follow the regulations in the law, give the MCA the authority to handle special situations, report to the MCA when unusual matters arise and provide the public with professional explanations.

In about 3 to 5 years, however, as knowledge accumulates, I think society will be able to recognize clearly the difference between operating and grant-making foundations, making it best to issue more detailed regulations at that time.

Legal Weekly: Bringing the Charity Law to life requires a set of supporting policies, but the government also needs to avoid interfering too much with charitable organizations and their activities. How exactly should the government play its role?

Wang Zhenyao: I don’t think we need to continue discussing the question of who should play which role and how, since the law has already explained this point very clearly. Policy questions should be handled by both the government and society. We can’t look only to the government. In fact, government and society reflect two sides of [implementing] a law, since the government seeks to govern according to the system in place, while society wants the government to establish various norms. Currently, the opinions of both sides have been taken into account. What is necessary during the process of implementing the law is for both government and society to create a collaborative mechanism through intensive dialogue. Let’s stop saying that the government has a problem playing its role when, in fact, civil society also has a problem playing its role.

[1] The Regulations on the Registration and Management of Social Associations; The Regulations on the Registration and Management of Civil Non-Enterprise Work Units; and the Temporary Regulations on the Management of Foundations

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9月1日,《中华人民共和国慈善法》(以下简称慈善法)将正式实施。近期,民政部动作频频,为落实慈善法的实施进行各项准备工作。

7月15日,民政部关于慈善组织认定办法(征求意见稿)公开征求意见;20日,民政部开始遴选首批慈善组织互联网公开募捐信息平台;29日,民政部公开征求关于慈善组织公开募捐管理办法(征求意见稿)的意见;3天后,民政部又发布了社会团体登记管理条例(修订草案征求意见稿),而此前,民办非企业登记管理暂行条例和基金会管理条例早已提上了修订议程。

慈善法实施前夕,民政部为何密集出台相关配套政策?政府在制定过程中如何把握平衡?慈善组织又要如何面对新的挑战?法治周末记者为此专访了长期从事公益事业的中国公益研究院院长王振耀。

 

建立完整的配套体系很有必要

法治周末:慈善法9月1日即将实施,民政部近期密集出台相关政策文件,你认为在正式实施之前民政部是否应该尽可能的建立完善相关配套措施?

王振耀:从政府要求和法律实施标准来说应该这样,无论中央还是地方都应当尽可能地建立完整的配套体系。法律都要实施了,就要把能想到的先做起来,想不到的、在之后遇到的矛盾,那就以后再进行修订完善。

法治周末:“三大条例”都根据慈善法的要求进行相应的修订工作,民政部也在制定慈善组织认定办法,对于慈善组织取消了“双重管理制”,这对于以往实践中慈善组织尤其是草根组织登记难的问题能否解决?

王振耀:现在就很容易了,一方面是没有了主管单位,另一方面是在县级民政部门就可以进行登记。以基金会登记为例,过去需要部、省级民政部门批准,那太难了,而现在法律规定县民政局就可以批准。所以将来,无论是基金会,还是其他类型的慈善组织的登记注册一般会容易得多。

公开募捐取消了身份制,靠信誉

法治周末:慈善法开放了公开募捐权,民政部公布的慈善组织公开募捐管理办法(征求意见稿)也对公开募捐资格的认定条件、程序等作了相关规定,那是否会对难以申请公募资格的非公募基金等组织的募捐活动带来限制?

王振耀:今后发起公开募捐实行备案制,等于取消了公募和非公募的区别。这实际是与国际接轨,今后基金会不再有公募非公募之分,只要成立一定的期限,具备一定的资质,就可以备案发起募捐。从广州的经验来看,也不只基金会,其他慈善组织也可以申请募捐。这样就不再像是过去的身份制,你一旦拥有公开募捐资格就永远拥有,现在更多的需要依靠慈善组织的信誉,这为慈善组织创造了更有利的发展条件,但也伴随着竞争和挑战。

法治周末:那政府是否需要对公开募捐的规则进行详细的统一要求?

王振耀:根据国际经验,公开募捐也不是随意的,备案后对于时间、地点、募款方式等都会有要求。对这些进行规范,在大体框架下比较自由的募款,这样更好,也是对于国际经验的借鉴。

但是进一步具体的规定就不可能有统一的标准,因为今后各县民政局就可以进行批准,具体的地点、时间等中央是不可能进行统一规定的,各地应根据当地实际作出时间、地段等的安排。所以,今后的规定得多样化。

法治周末:公开募捐的形式中肯定了互联网平台,目前,民政部正在遴选首批慈善组织互联网公共募捐信息平台。但慈善法中并未对选择标准、程序等进行详细规定,你认为是否需要出台相关的配套规定?

王振耀:就我了解,民政部正在出台相关的规定。我认为这次遴选就是一次很好的尝试,应该要先做起来。

但互联网募捐乃至全世界都是一个新挑战,随着技术的发展,将来的募捐方式,尤其是年轻人的活动方式远不只平台。所以,随着各式各样现代技术的发展,这个政策也应该逐步调整,及时跟进社会新发展,不断进一步规范。由于我们缺乏经验,开始阶段法律不可能有多具体的规范,但随着好的经验的累积,会不断改进完善。

民政部得到巨大授,也承担着巨大

法治周末:慈善法规定了慈善信托属于公益信托,且将未规定事项规定适用信托法,但此前我国的公益信托一直未真正展开,若要为落实慈善信托创造环境,是否也要对信托法进行相应的修订,或指定其他的实施政策?

王振耀:据我所知,政府有关部门,如民政部、银监会等都对慈善信托很关注。过去公益信托没有发展好是因为没有主管单位,谁也不管;而慈善信托则明确指明了民政部门为主管单位。那这就是民政部门的责任,法律实施后会面临很大的挑战,如果法律难以落实,民政部门就要承担责任。因此,我相信民政部门会敦促相关的法律、措施尽快配套。

法治周末:慈善法明确了慈善组织享受税收优惠被视为一大福音,但也有声音指慈善法的规定过于原则,缺乏明确的实施细则,对此你怎么看?

王振耀:一部法律当然需要有各项严格的细则,但慈善法相较于过去许多法律已经前进了一步,一百多条规定已经相当详细,并不是那么抽象。但是,一部法律在实际中进入操作过程时,都还需要有关行政部门出台相关具体措施和标准。

慈善法9月1日即将实施,没有拖延的余地,其中有二十多条涉及民政部,将主管责任明确给予了民政部门,而不像过去不说明责任人。民政部门在得到巨大授权的同时,更承担着巨大的责任,直接具体的点名相关部门,在实际上非常有利于法律的贯彻执行。我相信这部法律的实施不会像过去那么原则、抽象、推诿。

草根化、行

法治周末:慈善法还规定了政府购买服务等促进措施,但以往这些资源可能更多地流向带有官方背景的组织,草根慈善组织获取资源难,对于这一问题你认为如何解决?

王振耀:多年来草根组织长大的不多,我是多次呼吁不赞成草根组织的提法的。慈善法规定的包括购买服务等,就要求这些我们过去称为“草根”的组织既要更专业化,也要行业化。

我和有的民政部门人员讨论这一问题时,他们也苦恼极了。现在很多“草根”组织都用一个社工,采购老年、儿童、残疾人、精神病人(的服务)都是他,各式各样的服务都是同一人,而他们往往是小组织委托的,这能实现专业化、行业化吗?政府购买服务等难以落实,一方面是采购困难,另一方面民政局落实这些采购也很困难。

所以,这要求大家不能只要求政府越来越公平,小组织不实现专业化和行业化,天天说“草根”,政府无法向你购买。随着慈善法的贯彻,“草根”和官办之别的概念恐怕会有很大突破,不是以身份认定,而是以专业度、服务能力竞争。

这就要求小组织要更多地学习,进行咨询培训,迎接新挑战。慈善法实施之后我认为是全社会的学习过程,都不能轻松,其实我们的民间组织、慈善组织要提升不能光靠政府,我一直提醒大家,到考验我们自己的时候了。

政府和民间都有个度要把握

法治周末:慈善法规定了公募基金的年度管理费用标准,同时,将公募基金以外的慈善组织的年度支出和管理费用的标准制定权,交由民政部、财政部等,您认为民政部等是否有必要出台相关政策对此进行规定?

王振耀:可以(出台),但是也不用。大家都明白全世界的基金会分为运作型和资助型,在实践中,许多进行儿童、养老慈善的基金会成本很高,按照简单的计算方法可能达到80%至90%。对于他们要继续进行该怎么办,并不适宜进行舆论讨论和公开规定,因为在大家缺乏经验的情况下大众难以理解。现在,只能按照法律规定的,特殊情况授权民政部处理,超过标准向民政部门报告,向社会作出专业性解释就行。

但我估计再摸索3至5年,随着经验的积累全社会就能统一认识,区分清楚运作型和资助型,到那个时候再作出更具体详细的规定会更好。

法治周末:慈善法的运行需要相关配套政策来激活,但又要避免政府对于慈善组织和活动干预过多,政府究竟应如何来把握这个度?

王振耀:我觉得现在不能再说度了,法律已经将度说的很清楚了。政策问题需要社会和政府两方面来把握,不能仅仅要求政府。政府和社会其实反映了法律(落实)的两方面,政府要求按照现在的体系来进行治理,社会要求政府把各种各样的规范建立起来。目前其实两方面的意见都照顾到了,现在需要的是政府和社会在贯彻法律的过程中,通过积极的对话,形成一种互动机制。别都说是政府的度的把握问题,其实民间也有个度的把握问题。

Translated by Gregor Grossman

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