Five Considerations Regarding the Charity Law

《财经》April 15, 2016

中文 English

The Charity Law is an unquestionable milestone in the history of Chinese charity and law. Here are five aspects that should be carefully considered.

The Charity Law is a basic comprehensive law for all charitable activities. It is a milestone for both charity and the rule of law in China. It also holds an incomparable place among charity legislation in a global historic context.

Since the promulgation of the Charity Law, many interpretations and commentaries have expounded on this new law. This article is written to reflect on the Charity Law and, in sum, will draw attention to five aspects of the new law that should be carefully considered.

 

Will Professional Supervisory Units Continue to be a “Mother-In-Law”?

Registration and professional supervisory units form the dual-management apparatus at the core of the management of social organizations in China. This mechanism was proper during the period when social organizations were mainly initiated by the government. At the time it was understandable, since the professional supervisory units served as founders.

However, in this new historical stage, social organizations are increasingly being established by social forces. If these organizations continue to adhere to a dual-management system, this will create obstructions that will constrain social organizations (社会组织) [including charity organizations(慈善组织)]. If a social organization cannot partner with a government body to act as its professional supervisory unit (commonly known in China as receiving a “birth certificate” from a “mother-in-law”), it cannot be legally established. Many experts’ interpretations of the Charity Law suggest that charity organizations are free from the shackles of the dual management system, getting a “birth certificate” without a “mother in law”. However, this is not the case.

The Charity Law’s Article 9, despite not having clear stipulations for a “mother-in-law” system, still acknowledges the existence of dual-management apparatuses. The logic of this law is reflected in the two following rules: the first one, Charity Law’s Article 8 Section 2, stipulates that “Charitable organizations include foundations, social groups and social service organizations (社会服务机构)”. The second, Charity Law Article 9 Clause 7, stipulates that charitable organizations must “meet other conditions stipulated by laws and administrative regulations.” According to the “Regulations on Management of Social Organization (社会团体) Registration”, “Regulations on Management of Foundations”, and the “Private Non-Enterprise Unit Registration Management Regulations”, it is necessary to gain approval from a professional supervisory unit in order to register and establish social organizations, foundations and private non-enterprise units (the“social services organizations”of the Charity Law). A strict enforcement of the Charity Law would require a strict execution of these”other conditions stipulated by laws and administrative regulations”. The “mother-in-law” problem cannot thus be avoided.

The Charity Law itself does not solve the “birth certificate” problem of charitable organizations, but leaves it to the State Council. Article 20 states: “The State Council stipulates the organizational forms of charitable organizations and the specific methods of their registry management.” This means that the State Council will either formulate a package of specialized administrative regulations or revise the three relevant regulations mentioned above.

Regardless of the forms of the specification, we can only wait to see if the State Council can solve the “mother-in-law” issue before the implementation of the Charity Law on September 1, but the prospects are not optimistic. The modification of the three regulations has been in the pipeline for over ten years. The reason it has not been released is mainly due to the difficulty in finding a consensus on the “dual management system” and the managing classifications. This is also the reason why the proposed Charity Law did not go through the State Council. It is true that government documents repeatedly reiterate that economic, technological and philanthropic organizations can register directly, and require a separation between social organizations and government departments, and the Civil Affairs office has loosened up the registration process for foundations by setting one unit as both the registration management authority and professional supervisory unit. In spite of all this however, proponents of the dual management system still exist; support for retaining professional supervisory units within the system still remains.

Especially when it comes to maintaining the level of management of social organizations after they are decoupled from their “mother-in-law”, there are after all real causes for concern. It can be said that the basic structure of Chinese social organization management is not changed by the introduction of the Charity Law.

 

How can the System for Foreign Charities be linked up?

The Charity Law does not specify the content of foreign charity: not only in order to avoid specifying the activities of overseas charitable organizations in China, but also to avoid addressing the issue of Chinese charities going overseas. Currently, numerous foreign and international organizations conduct charitable activities within China, and a growing number of Chinese charitable organizations are going out of the country to carry out international charitable activities. With further globalization, the trend towards charity without borders will only increase. The Charity Law does not specify anything regarding foreign charities, mainly due to the Overseas NGO Management Law that is still in development, and whose management system and ideas stand in opposition to the Charity Law.

Before the Overseas NGO Management Law was introduced, foreign charities could only be managed in accordance with existing laws and administrative regulations. The outstanding problem is the need to follow the Foundation Management Regulations provisions, specifying that foreign foundations should establish representative offices in China. After introducing the Overseas NGO Management Law, the foreign-related contents found in the Foundation Management Regulations will need to be modified according to the Overseas NGO Management Law, because there are no regulations regarding this purpose in the Charity Law. (editor’s note: the revised version of Foundation Management Regulations is released for public consultation on May 26 by Ministry of Civil Affairs)

The best scenario in accordance with the current logic would be for the representative offices of The Ford Foundation, the Gates Foundation and other foreign charitable organizations (外国慈善组织) in China not to be managed in direct accordance with the Foundation Management Regulations and no longer to be regulated as charitable foundations, but centrally-managed as foreign non-governmental organizations(境外非政府组织). Regarding the activities conducted by these institutions and domestic charity organizations, we also need to clarify the application of the various laws and policy measures.

Thus, in spite of the Charity Law, foreign charitable organizations regarded as charitable organizations cannot be included in the Charity Law management. This would require organic links in the management system in order to achieve the necessary combination, and a delicate balance between the management of charities and foreign NGOs. In terms of the domestic management system and policy, there is also a need to overcome this logical impasse in order to avoid a contradiction between what is wished and what can actually be achieved.

 

How to Regulate the Investment of Charitable Organizations’ Property?

The Charity Law’s Article 54 provides the investment management principles for a charitable organization’s property. The main content of these principles was adopted from the Foundation Management Regulations.

Charitable organizations should follow legal, safe, and effective principles in order to ensure the value of their property. Investment profits should be made exclusively for charitable purposes. Legitimacy is the prerequisite, safety is the bottom line, effectiveness is the goal, and using profits for charitable purposes is the principle. The procedural requirements for investment decision-making, conflicts of interest, and other prohibitions are also properly defined.

On the other hand, the Charity Law authorizes the Civil Affairs Department of the State Council to “stipulate specific methods for the matters regulated in the previous paragraph”. This writer feels that from the point of view of the regulation’s validity, this invitation to “wait until the next episode for disclosure” is superfluous.

The main reasons are as follows: first of all, the Article 54 of the Charity Law defines the provisions of investment management principles and conflicts of interest in property.In terms of property investment management, legislation can only be written down to this extent, in the form of advocated principles and red-line prohibitions. Regarding the Charity Law’s principles and prohibitions, the Civil Affairs Department of the State Council basically have no space to offer interpretations or explanations. For principles that cannot be further detailed by the more powerful authorities under the State Council, it is even more unlikely for the Ministry of Civil Affairs to offer interpretations or explanations, and to expand on the prohibitive provisions of the Charity Law nor advise on how safe and effective a charity’s investments are.

Secondly, the increased value of a charity’s property is mainly concentrated in charitable organizations such as private foundations with an endowment. The legal requirement of annual expenditure for public fundraising foundations and other charitable organizations determines the maximum amount of their property investment. For example, the Gates Foundation, the Ford Foundation, the Narada Foundation and other organizations have very professional and strategic investment portfolios. Some of their investment mechanisms are even independent of their founders. They cherish the charity’s property as if caring for their own eyes. This value-added approach complies with market regulations, tends to avoid sluggishness and recklessness, and does not have to accept the guidance of the Administrative authorities.

Once again, although Article 54 (2) is defined as an authorizing regulation, for the purposes of Civil Affairs, it in fact constitutes a statutory obligation. This causes one to worry that the Ministry of Civil Affairs will be forced to either over-regulate or interfere with the conduct of charitable organizations’ investments in order to accomplish this statutory obligation.

 

Will the annual statutory expense rate deviate?

The annual statutory expenses of charitable organizations (MAE: including the annual minimum expense rate and the highest expense rate for administrative expenses) is not typically legislated by most countries across the globe. In America, there are no legal regulations regarding the administrative expenses of charitable organizations. There are no legal regulations regarding the minimum expense rate for the charitable assets of public charities (note “public charity” as opposed to “private foundation”). Only private foundations have mandatory requirements for the minimum expense rate of charitable assets, which must not be lower than 5% of the account surplus for the previous year.

When looking at these ratio sets, there are two factors to consider: the first is that when a private foundation is viewed as a vessel for public charity, it can receive various tax breaks, but it cannot accumulate wealth that is not being used for charitable activities. Secondly,the 5% requirement is mainly concerned with limited endowment investment appreciation ability, avoiding an early exhaustion of the foundation’s wealth.

The Foundation Management Regulations by the State Council borrow from the above-mentioned American foundation management measures, but in regards to the MAE provisions, they go a step further. Accordingly,every year public fundraising foundations will pay the expenses of the charitable activities specified in their by-laws, and this must not be lower than 70% of the gross income from the previous year. Every year non-public fundraising foundations will pay the expenses of the charitable activities specified in their by-laws, and this must not be lower than 8% of the foundation’s surplus from the previous year. The foundation’s staff members’ salary, benefits and administrative expenses must not exceed 10% of the current year’s total expenditure.

The charity sector and independent experts have voiced many criticisms regarding the Foundation Management Regulations’ above-mentioned rate guidelines. These guidelines are strictly enforced in practice, but despite this some foundations have no choice but to adopt ways of evading the laws in order to meet the statutory requirements (the most commonly seen method has been founders privately replenishing the lack of administrative funds). Article 60 of the Charity Law regarding the MAE provision responds to the concerns of the charity industry and experts. It aims to increase the flexibility of the regulations and stabilize the existing differences. But there are also three drawbacks of article 60 that have to be carefully considered.

First of all, certain regulations are relaxed even when they would best not be. Article 60 only stipulates regulations for foundations with public fundraising qualifications regarding yearly expenditures for charitable events (which must not be less than 70% of the gross income for the previous year, or 70% of the average annual income for the previous 3 years), as well as for yearly administrative fees (which cannot exceed 10% of the total yearly expenditure). A provision has been made for these regulations. This provision relaxes the MAE limitations for qualified public fundraising foundations (mostly government-run foundations). Not only is there a three-year flexibility for annual expenditures, but exceptions can also be made for annual administrative expenses in some cases. One draft of the law even included a 15% proportion of administrative expenses.

In fact, the required proportions for annual expenditures and annual administrative expenses stipulated in the Foundation Management Regulations are quite sufficient for public fundraising foundations, so it might be better to go a step further and tighten restrictions as opposed to relaxing them.

Secondly, certain aspects are left neglected even though they should not be. There are no explicitly written regulations regarding the annual expenditures of non-public fundraising foundations (equivalent to American private foundations). This is a rather obvious omission in Article 60 of the Charity Law. Annual expenditures are most in need of clear laws, especially for non-public fundraising foundations using endowment funds.

In fact, since the Charity Law stipulates that “where the donation protocol in regards to using individual donations for charity event expenses and administrative expenses includes an agreement, they are to be used in accordance with that agreement” regarding expense exceptions,this allows for more flexibility in the MAE expense proportion for donation-dependent charitable organizations. This is actually flexible enough as to make the mandatory MAE proportions for charitable organizations meaningless. By contrast, in regards to the mandatory yearly expense regulations for non-public fundraising foundations that are not donation-dependent, regulations are all the more necessary. This is also the reason why the American government set a 5% annual expense rate for private foundations.

Thirdly, organizations with different characteristics are mixed up. Other charitable organizations qualified to receive public donations are not regulated alongside public fundraising foundations. Rather, they and others that are not qualified to receive public donations are classified together, creating a standard MAE rate for organizations with obscure and mixed characteristics. This could mislead the development of regulations at the lower level, and increase the difficulty of coordination.

In any case, the charity law’s regulations regarding MAE proportions regretfully remains in this state, “collecting the seeds and throwing out the watermelons”(concentrating on trivial matters and neglecting important ones). It is in need of complementary regulations by the authorized departments.

 

How can charitable trusts be activated?

Chapter five of the Charity Law, which is on charitable trusts (慈善信托), compensates chapter six of the Trust Law on public interest trusts(公益信托)[1].

Since its implementation on October 1st, 2001, the Trust Law has contributed greatly to the structure of for-profit trusts. However, its chapter on public interest trusts remains lackluster due to two reasons. Firstly, according to the law, the establishment of public interest trusts and the assignment of trustees must gain approval from the relevant public interest management authorities. However, the relevant authorities have not been clearly identified for the past 15 years. Secondly, there are no incentives such as benefits or tax breaks for public interest trusts.

The regulations on charitable trusts contained in chapter five of the Charity Law attempt to break the deadlock, and prevent the rigidity which implementing a strict administrative approval system might cause. Therefore, the Charity Law adopts a free contract mode similar to that of the for-profit trusts. At the same time, it stipulates a document filing system with the department of civil affairs, allowing the civil affairs department to serve as the public interest management authority. Even if a trust fails to file with the civil affairs department, it will only lose the tax breaks, but the legitimacy and effectiveness of its establishment are intact.

Despite the fact that charitable trusts are classified as public interest trusts in the Charity Law (慈善信托属于公益信托), there are significant differences between charitable trusts under the Charity Law and public interest trusts under the Trust Law, especially regarding the use of administrative approval management. This leaves Article 50 of the Charity Law very confusing. (“Article 50. The establishment of charitable trusts, trust asset management, trust parties, the termination and liquidation of charitable trusts, and other items that are not regulated in this chapter shall be governed by other chapters of this law; If not regulated by this law, they shall be governed by the relevant articles of the Trust Law of the People’s Republic of China.”)

Charity is a type of public interest with the participation of private forces. It is included in the category of public interest Therefore, the charitable trusts system cannot replace the public interest trusts system. But there is no doubt that the Charity Law takes precedence over the Trust Law since it is a specialized law, passed by the National People’s Congress later than the Trust law. Whether the regulations will be successfully activated depends upon the following factors:

First of all, if they break away from the restraints of being public interest trusts, then charitable trusts need to rely on the business trust system to motivate the trustees. The work of a trustee of a charitable trust is not charitable. Rather, it is professional, commercial, and competitive and can generate profit at a market rate.

Secondly, the tax breaks for charitable trusts must be clarified. Otherwise, the filing system with the civil affairs department will just be an empty shell. This will severely damage the credibility of charitable trusts and the supervision capacity of the civil affairs department.

Thirdly, the country should vigorously promote the development of charitable trusts to create a stimulating atmosphere with freedom of contract, a high credibility for trusts, proper supervision, and favorable policies.

The five considerations mentioned above should be taken as suggestions rather than criticism. Mencius said: “ the great end of learning is nothing else but to seek for the lost mind.”

My only hope is for these thoughts, based on common sense, to contribute to the implementation of the Charity Law and the drafting of relevant regulations. We must have the courage to face problems rather turning a blind eye.

[1] In Chinese, “Charity”(慈善) refers more to traditional activities to provide help for those in need, while “public interest” (公益) tends to refer to modern organized philanthropic activities.

冬子津:关于慈善法的五个提醒

冬子津/文

慈善法作为全面规范慈善活动的基本法,在中国慈善和法治史上的里程碑意义不容置疑,在世界慈善立法史上的地位也不可替代。

慈善法颁布以来,许多解读和评论文章对其作了积极中肯的阐述,本文仅作夕惕若厉的反思,总括起来,有五个方面需要认真对待。

业务主管单位继续当婆婆?

登记管理机关和业务主管单位相结合的双重管理体制,一直是中国社会组织管理的核心基础。这一机制在社会组织主要由政府部门发起设立的时代,无可厚非,因为业务主管单位的实质是履行发起人责任。

然而,在社会组织日益由民间力量发起设立的新历史阶段,继续坚持双重管理体制,便成为制约社会组织(包括慈善组织)发展的制度梗阻。因为如果民间组织不能找一个党政机关作为业务主管单位(俗称“婆婆”),就不能合法成立,而党政机关也不愿意平白无故去给一个民间组织当“婆婆”——那意味着更多的责任和风险。

慈善法被许多专家解读为在双重管理体制的桎梏中解放了慈善组织,从而绕开了 “婆婆”取得了“出生证”。但只要仔细阅读慈善法,就会发现事实并非如此。

在慈善法第九条规定中,虽然没有明确“婆婆”体制,但却承认双重管理体制的继续存在,其法律逻辑体现在以下两项规定中:第一,慈善法第八条第二款规定“慈善组织可以采取基金会、社会团体、社会服务机构等组织形式”;第二,慈善法第九条第(七)项规定,慈善组织必须符合“法律、行政法规规定的其他条件”。根据《社会团体登记管理条例》、《基金会管理条例》和《民办非企业单位登记管理暂行条例》的规定,登记成立社会团体、基金会以及民办非企业单位(慈善法称之为社会服务机构),业务主管单位的批准同意是前提条件。严格执行慈善法,就必须严格执行这些“行政法规规定的其他条件”,“婆婆”问题绕不过去。

慈善法本身没有解决慈善组织“出生证”问题,把这个问题留给了国务院。慈善法第二十条规定:“慈善组织的组织形式、登记管理的具体办法由国务院制定。”这意味着要求国务院制定一个配套的专门行政法规,或者对上述三个登记管理条例进行修订。

无论采取何种规范的形式,国务院能否在慈善法9月1日实施前解决“婆婆”问题,我们拭目以待然而并不乐观。因为,三个登记条例计划修改了十几年,之所以一直出不来,主要是就“双重管理体制”的去留以及如何分类管理难以形成共识,慈善法之所以没有通过国务院提案,与此也不无关系。尽管中央文件多次重申经济、科技和慈善类民间组织可以直接登记,要求社会组织与政府部门实施政社分离,尽管民政部门在基金会登记方面不断解放思想,实施登记管理机关和业务主管单位的“二合一”政策,但双重管理体制的思维逻辑依然存在,体制内主张保留业务主管单位的坚持依然存在。

尤其是,离开“婆婆”后如何保持社会组织管理水平,其担忧更是实实在在。可以这样说,中国社会组织管理的基本格局,未因慈善法的出台而改变。

涉外慈善的制度如何衔接?

慈善法没有规定涉外慈善的内容:既回避了境外慈善组织在华开展活动的规范,也未涉及中国慈善组织走出去的问题。当前,为数众多的外国和国际慈善组织在华开展活动,也有越来越多的中国慈善组织走出国门开展国际慈善活动。随着全球化的进一步深入,慈善没有国界的趋势会日益加强。慈善法没有规定涉外慈善,主要是由于《境外非政府组织管理法》正在酝酿制定,而其管理体制和管理思路与慈善法有较大的颉颃。

在《境外非政府组织管理法》出台前,涉外慈善组织只能先按照现行的法律、行政法规进行管理。比较突出的问题是需要按照《基金会管理条例》的规定,规范外国基金会在华设立代表机构的活动。《境外非政府组织管理法》出台后,《基金会管理条例》的涉外内容,需要根据《境外非政府组织管理法》进行修改,因为慈善法没有为此预留空间。

最符合当下逻辑的设想是,福特基金会、盖茨基金会等外国慈善组织在国内的代表机构,都将会从《基金会管理条例》中剥离出来,不再作为基金会类型的慈善组织进行规范,而是作为境外非政府组织进行集中管理,对这些机构与国内慈善组织开展活动,也需要厘清各类法律关系和政策措施。

因此,尽管有了慈善法,对于原来按照慈善组织进行管理的涉外基金会,却不能纳入慈善法进行管理,这需要在管理体制上实现有机链接,以实现慈善与境外非政府组织管理的必要结合和微妙平衡。在国内管理体制和管理政策的衔接方面,也需要克服逻辑拧巴,避免“心虽在朝谒,力与愿矛盾”。

慈善财产投资如何规范?

慈善法第五十四条规定了慈善财产的投资管理原则,这些原则的主要内容采撷于《基金会管理条例》。

慈善组织为实现财产保值、增值进行投资的,应当遵循合法、安全、有效的原则,投资取得的收益应当全部用于慈善目的。其中,合法是前提,安全是底线,有效是目标,用于慈善目的是原则。至于投资决策的程序要求以及利益冲突等禁止性规定,也都是题中应有之义。

但是,慈善法直接授权国务院民政部门就“前款规定事项”制定具体办法,笔者认为这个“且听下回分解”从规范有效性上讲是蛇足。

主要理由是:首先,慈善法第五十四条明确了慈善财产的投资管理原则和利益冲突的禁止性规定,而就慈善财产的投资管理而言,立法也只能写到这个程度,即倡导式的原则规定和红线式的禁止规定。对慈善法的原则规定和禁止规定,国务院民政部门基本没有演绎和阐释的空间,因为权力机关无法细化的原则,作为行政机关的民政部更无法解释,民政部也无权扩大慈善法的禁止性规定,更没有能力指教慈善组织如何进行安全有效的投资。

其次,慈善组织财产的保值、增值,主要集中在非公募基金会等具有家底基金(endowment)的慈善组织,公募基金会等慈善组织的年度支出要求决定了其可资投资财产的有限性。像盖茨基金会、福特基金会、南都公益基金会等组织,都有非常专业的投资组合能力和策略,有的投资机制甚至是独立于基金会行为的发起人运作,他们会像爱护自己的眼睛一样爱护慈善财产,其保值、增值的方式,完全是遵循市场规则的运作,不会懈怠,不会乱来,也无必要接受行政机关的指导。

再次,慈善法第五十四条第二款虽为授权规定,但对民政部而言却构成法定义务。这令人担心民政部为了完成这项法定义务,不得不形成对慈善投资行为的过度管制或者干预。

法定年度支出比例会跑偏吗?

慈善组织的法定年度支出比例(MAE:包括年度最低支出比例和管理费用的最高支出比例)并非世界各国立法的通例。美国对慈善组织的管理费用支出没有法定要求,对公共慈善机构(Public Charity,与private foundation相对)慈善资产的年度最低支出比例也没有法定要求,仅对独立基金会(private foundation)慈善资产的年度最低支出比例设有强制性规定,即不得低于上一年度基金余额的5%。

这个比例的设定有两个方面的考虑:第一,基金会作为慈善公器,享受各种税收优惠,不能囤居财富而不用于慈善活动;第二,5%的比例主要是考虑到了家底基金(endowment)投资增值能力的有限性,避免基金会财富早早用尽耗光。

国务院《基金会管理条例》借鉴了美国基金会的上述管理措施,但对MAE的规定作了进一步拓展,即:公募基金会每年用于从事章程规定的公益事业支出,不得低于上一年总收入的70%;非公募基金会每年用于从事章程规定的公益事业支出,不得低于上一年基金余额的8%。基金会工作人员工资福利和行政办公支出不得超过当年总支出的10%。

对于《基金会管理条例》的上述规定比例,慈善业界和理论界多有诟病,在行动中则严格执行,尽管有的基金会不得不采用合法规避的办法来实现法定要求(最常见的是由发起人在基金会财务之外来补充行政支出的不足)。慈善法第六十条关于MAE的规定,回应了慈善业界和理论界对此问题的关切,旨在增加规范的弹性,平抑存在的分歧。但仔细推敲,慈善法第六十条有三点不足:

第一,放松了不该放松的。慈善法第六十条仅仅对慈善组织中具有公开募捐资格的基金会开展慈善活动的年度支出(不得低于上一年总收入的70%或者前三年收入平均数额的70%)和年度管理费用(不得超过当年总支出的10%)作出了规定,这一规定放松了具有公开募捐资格的基金会(多为官办基金会)MAE的限制(不但年度支出有三年弹性,而且年度管理费用也可以有条件突破。草案甚至曾经设定过15%管理费用比例)。

实际上,《基金会管理条例》规定的年度支出和年度管理费用支出比例,对于公募基金会而言绰绰有余,可以从政策上进一步收紧而不是再作放松。

第二,忽视了不该忽视的。对于非公募基金会(相当于美国的private foundation)的年度支出没有作出明确的下线规定,这是慈善法第六十条比较明显的规范踏空。最需要依法明确年度支出的,恰恰是拥有家底基金的非公募基金会。

实际上,由于慈善法规定了“捐赠协议对单项捐赠财产的慈善活动支出和管理费用有约定的,按照其约定”的MAE支出例外条款,这使得依赖捐赠的慈善组织的MAE的支出比例具有了更大的变通弹性,这种弹性甚至能够使得对这些慈善组织硬性规定MAE比例失去意义。相比之下,对于不依赖捐赠的非公募基金会的年度支出的硬性规定,就更加必要。这也是美国只有对private foundation设定5%年度支出比例的原因。

第三,混淆了性质不同的。未将具有公开募捐资格的其他慈善组织与具有公开募捐资格的基金会一并规范,而是将其与不具有公开募捐资格的慈善组织一并归类,混淆了不同性质慈善组织MAE比例的标准,这极有可能误导下位规范的制定并增加协调难度。

无论如何,慈善法关于MAE比例的规定留下了“捡芝麻丢西瓜”的遗憾,需要被授权部门通过制定规章亡羊补牢。

慈善信托怎么激活?

慈善法第五章关于慈善信托制度的规定,是对信托法第六章公益信托的救赎。

信托法于2001年10月1日生效实施后,在金融等营利性信托领域构建出的巨大成就有目共睹。但该法第六章关于公益信托的规定,基本处于制度休眠状态,主要原因有两个方面:第一,根据信托法的规定,公益信托的设立和确定其受托人,应当经有关公益事业的管理机构批准,但谁是公益事业管理机构15年来一直未得明确;第二,公益信托缺乏利益和税收政策等驱动力。

慈善法第五章规定的慈善信托,试图打破公益信托制度的僵局,其在规范的思路上,又试图摆脱公益信托实施严格行政审批制度可能带来的僵化。因此,慈善信托采取了类似商业信托的自由缔约模式,同时为了将其与一般信托区分开来,又规定了慈善信托文件向民政部门的备案制度,使得民政部门兼具信托法“公益事业管理机构”的影子职能。未按照规定将慈善信托文件报民政部门备案的,只是不享受税收优惠,并不影响当事人设立慈善信托行为的合法性和有效性。

尽管慈善法规定“慈善信托属于公益信托”,但对比慈善法规定的慈善信托和信托法规定的公益信托,两者仍存在很大的制度区别,尤其体现在行政审批管理的介入方面。这就使得慈善法第五十条的规定(慈善信托的设立、信托财产的管理、信托当事人、信托的终止和清算等事项,本章未规定的,适用本法其他有关规定;本法未规定的,适用《中华人民共和国信托法》的有关规定。让人无所适从。

慈善是私力参与的公益,从外延上讲,慈善包含在公益之中,因此慈善信托难以取代公益信托制度。但慈善法作为特别法、后法以及由全国人民代表大会通过的法律,慈善信托在适用效力上优先于信托法规定的公益信托是没有疑问的。慈善法规定的慈善信托制度是否能够成功激活,取决于以下几个因素:

第一,慈善信托要摆脱公益信托的桎梏,需依托商业信托的机制,来解决受托人利益驱动力的问题。必须澄清,慈善信托受托人的受托行为不是慈善行为,而是具有专业竞争力的市场行为,可以按照市场的价格获利。

第二,必须尽快明确慈善信托的税收优惠问题,否则,向民政部门备案的规定将会形同虚设,这将严重影响慈善信托的公信力和民政部门的监管力。

第三,国家要大力倡导慈善信托的发展,形成缔约自由、信托公信、监管适当、政策优惠、气氛宽松的氛围。

上述五点提醒,目的在建设而不在批评。孟子曰:学问之道无他,求其放心而已矣。

惟愿这些基于常识的朴素思考对于慈善法的贯彻落实和相关配套措施的完善能有所警示助益。面对问题,我们要有直面的勇气,切忌茫然自宽、腼焉自幸。

作者为法律工作者

Director of AlilA

Translated by Leanne Deckert, Li Yuanhui, Herman Zheng,

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