Guangdong’s new registration policy for social organizations: progress and challenges

中文 English

Sun Yat-Sen university’s Ma Hua explains the changes and challenges of Guangdong’s new registration policy for social organizations.

Over the past 20 years, the “dual management” system has gone from being perceived as a breakthrough policy that would facilitate the establishment of social organizations to one that is a serious obstacle to their development [editor’s note: social organizations are an official term for NGOs in China. There are three official categories of social organizations in China: membership based social organizations (社会团体), privately operated non-enterprise unit(民办非企业单位), and foundations(基金会)]. By looking in practical terms at how social organizations have registered in Guangdong using the new registration policy, this paper attempts to explore and understand the logic behind registration policy reform across Guangdong, examine deficiencies encountered in the process, and suggest policy recommendations based on its findings.

Since Guangdong brought the new system of direct registration for social organizations into full force in May 2012 – a system, it should be clarified, that does not apply to organizations engaged in the provision of private education, healthcare and training that are required to go through pre-registration inspections and audits by government departments based on relevant laws and administrative regulations – all other social organizations can now apply to register directly with the Civil Affairs authorities. This new system has in fact been actively encouraged by the Guangzhou city government from the beginning of 2012. Specifically, this change means that social organizations in the following categories – professional associations, chambers of commerce , charities, and other organizations that provide social, economic, scientific, technological, sporting and cultural services – can apply to register directly with the appropriate Civil Affairs bureau without a professional supervising unit.

The new registration policy was extended across the whole of Guangdong Province from July 2012, meaning that social organizations that want to register there can do so directly with Civil Affairs, rather than first seek permission from the department which most closely matches their area of service delivery.

In fact, policy experimentation relating to the registration of social organizations began in Guangdong much earlier. In 2009, the Shenzhen government signed a national-level agreement with the Ministry of Civil Affairs (MoCA) to “Promote the Reform of Civil Affairs Undertakings”. Since then, the growth of social organizations and non-enterprise units has been continuous, rising from 3,759 to 4,661 over three and a half years – an increase of nearly one thousand. With the change to the new registration system province-wide, the pattern of registration displayed some remarkable trends: during a two-months period leading up to July 2012, 18 social organizations registered at the city-level throughout Guangdong while a further 15 were poised to begin operations, following official approval of their names.

Despite the liberalization of certain aspects of Guangdong’s “lenient, but also strictly implemented” registration policy (which generally makes registration easier than ever) there are no guarantees that the process will always be plain sailing. In fact, organizations that have registered under the new policy still report the following problems:

 

(1) The conceptual definition of “public interest charity”

Name registration is the first step for social organizations, at which point Civil Affairs departments will (i) take the opportunity to make a preliminary assessment of whether the applicant meets the conditions of registration and (ii) assess whether the applicant needs to be assigned an advisory units (业务指导单位)(editor’s note: it is a transitional policy to replace a supervisory unit with an advisory unit, in order to relax restrictions of social management in Guangdong). Guangdong’s “Program for Further Fostering the Development and Standardization of Management Practices for Social Organizations” (hereinafter referred to as the “Program”) clearly allows any organization that falls into the category of a public interest charity to use words that reflect the characteristics of the organization. This is an important means of breaking through the monopoly of GONGOs in the past and distinguishing a charitable entity from other entities, as well as a means by which organizations can continue to build on their branding and image after registration.

However, many social organizations still encounter problems during registration because Civil Affairs departments lack a clear definition of the term “public interest”. In practice, Civil Affairs departments at all levels across the country adopt their own definitions to the extent that even Civil Affairs staff working in the same building have differing interpretations, meaning that some less “progressive” parts of the administration may reject applications at first. Indeed, many organizations report that the process for obtaining a name is very technical, and this can become costly, particularly for those that are unfamiliar with registration techniques.

From the end of 2011 Guangzhou Huangpu Shenxin Feixiang Psychological Aid Service Center (hereafter Shenxin Feixiang) began to keep an eye out for information on the registration process via all channels, also consulting with the authorities at provincial and city-level in Guangzhou. They initially hoped to register as a membership based social organization (社团) under the name of “Guangdong and Guangzhou Youth Psychological Aid Center” and therefore started consulting with the provincial authorities during September 2011. However the authorities provided no specific feedback, other than telling them to seek out the Provincial Communist Youth League to be its “supervising unit” (主管单位) because its work involved young people. Thereafter, Shenxin Feixiang re-consulted with the city-level authorities and submitted an application, but were concurrently advised (as part of the name registration process) to seek out under the Guangzhou Youth League. In the end they decided to abandon the process in order to retain their independence, however city-level officials did provide detailed feedback on the difference between membership based social organizations and non-enterprise unit, also advising Shenxin Feixiang that it would be better to try to register as either a public interest non-enterprise unit (公益类民非) or as a social work organization (社工机构). Shenxin Feixiang subsequently decided to attempt to register at district level.

Unfortunately, at the end of 2011 details of the new policy changes had still not been disseminated at district-level in Guangzhou, leaving staff from Shenxin Feixiang running between civil affairs offices in three different districts – Haizhu, Yuexiu and Panyu – right up until they contacted the Huangpu District Civil Affairs Bureau who had received formal notification of the policy change. While they told Shenxin Feixiang that the requirement for social organizations to find a sponsor unit (主管单位) had been removed, details of implementing the new policy had yet to be worked out. The director of the Huangpu District Civil Affairs Bureau responsible for registration even paid a visit to the municipal bureau inquiring about the new policy and got the same answer. In the end, Shenxin Feixiang then went through the old rules for registration and gained approval on November 23rd 2011, after which a further fortnight was spent on the naming process – opting to register as a non-enterprise unit (民非机构) required the word “youth” to be removed and replaced with ” Shenxin Feixiang ” (身心飞翔) – before moving onto the next step. Then in February 2012, when all of the registration documents were finally in place, local-level officials from MoCA informed Shenxin Feixiang that a new application process was in place, rendering the old obsolete, further saying that they should re-submit their application afresh.

By contrast, Guangzhou Green Point Environmental Promotion Association (广州市绿点公益环保促进会, hereinafter referred to as “Green Point”) did not encounter the same kind of registration difficulties, but nonetheless expended much effort on the naming process. Initially, Green Point wanted to use “education center” within their official title to register as a social organization, however relevant officials of the civil affairs department considered such language to be too similar to names used by governmental institutions (事业单位), therefore Green Point had to choose “Promotion Association” (促进会) instead.

As far as some less experienced, policy-critical organizations are concerned, the registration process remains as difficult as ever. For example, A Qiang, the executive director of PFLAG China (同性恋亲友会), an association that represents the interests of gay relatives and friends (hereinafter referred to as “PFLAG”), made seven visits to the provincial-level Bureau for the Management of social organizations to go over the process, meeting variously with team officials, team heads, the divisional head, deputy director general and director general, before finally receiving a letter which advised PFLAG to “take up your case with the city-level Civil Affairs department.” Having done so, the later responded verbally to say that “There is no law that states that homosexuality is legal, therefore we cannot, for the moment, deal with your application.” “On the contrary”, responded A Qiang, “China has no law that states homosexuality is illegal; and, moreover, no law that states heterosexuality is legal. If you are unable to assist us in the registration process, please provide a clear explanation in writing.” With both sides at loggerheads, PFLAG did not manage to make further progress with its registration application.

(2) Finding suitable premises

Finding suitable premises in which to conduct operations is a frequently raised issue among social organizations. Official guidelines from MoCA stipulate that applicants must provide documentation that proves they have the right to use the premises where they are based. Equally, although there is no explicit provision within the guidelines that precludes applicants from using a residential address to register, some civil affairs departments have insisted on a commercial address for the purposes of registration.

Although well-resourced social organizations can meet the above requirements fairly easily, the same cannot be said for those just starting out. For instance, Bike Guangzhou (拜客广州), having registered its name, now faces the even bigger challenge of finding suitable premises. Previously, Bike Guangzhou shared an office with another organization, however because their co-tenant had already registered at this address, Bike Guangzhou could not use the same address on their application. Currently, Bike Guangzhou is unable to afford its own premises, due to its low funding base and small staff capacity, and is therefore hoping to secure free office space, simply so that it can provide a commercial address for the purposes of its application.

Green Point circumvented this issue by setting up a company that provided it with the necessary ‘right of use’. However, this method cannot be relied upon in the future since there is no guarantee that future policy will continue to allow a social organization to register using the same address with an institution of different status such as a company. Actually, current policies do not explicitly preclude organizations from using a residential address to register, but rather merely require proof that premises have passed relevant safety and fire safety inspection tests, which are not always easy to provide in respect of residential buildings. Moreover, MoCA’s position is also fairly vague, stating that “Providing that no training activities or group gatherings take place, the relevant leading official will exercise his or her discretion in making a final judgment.”

(3) The discretionary powers of the civil affairs departments at all level are too great

“Guangzhou’s policy of direct registration for social organizations” was included on the Social Affairs Committee’s list of special social innovation projects. The responsibility to register non-enterprise unit now falls on district (and county) authorities. In other words, restrictions on the registration of non-enterprise units have essentially been lifted within the city’s boundaries. Such a change represents a positive development for social organizations, since they can now choose to register with the MoCA bureau nearest to their base. However, those wanting to register should be aware that further problems may arise due to inconsistent application of the new policy by different Civil Affairs departments.

Firstly, different Civil Affairs departments apply different standards to decide who can register as a “public interest” (公益) organization. For instance, Bike Guangzhou reported that, despite signing up with the social organization incubation project in Yuexiu District, staff at the corresponding Civil Affairs bureau advised that organizations originally formed within universities should either register as a bike club or become a volunteer-led organization under the Communist Youth League, rather than register as a fully independent and privately run non-profit organization. Since this clearly was not the outcome desired by Bike Guangzhou they subsequently abandoned plans to register in Yuexiu. However, there was a more open attitude from officials in Haizhu District who said that while they could not guarantee success, they would do all they could to provide the correct documentation. In the end, the naming process (in Haizhu) turned out to be very smooth and was soon approved.

Secondly, different civil affairs bureaus have different levels of understanding of operational procedures, bringing no end of trouble to organizations wanting to register. When Chi Heng Guangzhou LGBT Center (智行广州) tried to register for the second time, management approval authority for their application was delegated to the district-level bureau in Yuexiu. However, because this bureau was not well acquainted with the new policy – in itself still in the process of constant amendment – both district officers (and the applicant) needed to consult upwards to clarify whether the (ever-changing) application documents were current. At the same time, the applicant was asked to provide further background information in respect of the organizer, leaving the overall impression that civil affairs information requirements at district-level are even stricter.

Some organizations also experienced the inconvenience of having to provide the same registration information twice. For example, when the Guangzhou Sunflower Women Workers Center (广州向阳花女工活动中心, hereinafter referred to as Sunflower) tried to register, one of the application forms required the inclusion of a project description. Following a series of amendments made by Civil Affairs officials to the original draft, the form had to be rewritten three times, taking up much valuable time and energy. Moreover, having opted to register as a social work organization, Sunflower were initially told the process would only require one legal representative to have either a qualification or background in social work, but later this was expanded to include a number of conditions, including one which stipulated that at least one third of the personnel (defined as the founder, the management board and staff) should have a social work qualification in order to register. In the end, Sunflower resolved the issue by asking its staff to seek accreditation.

(4) Registration capital

Securing registration capital is also an issue for emerging social organizations. Current policy requires organizations that want to register as a non-enterprise unit at sub-provincial level to submit registration capital worth CNY 30,000. However, Sunflower points out that project fundraising is the main form of income generation for organizations in their situation and that, conversely, it is difficult to find donors willing to provide funds for registration. Subsequently, the burden of finding this considerable sum of money will most likely fall upon the founder.

An additional problem relates to expenses incurred during the registration process. Bike Guangzhou says that, in addition to the CNY 30,000 registration capital, the organization needed to pay related expenses, including CNY 700 to open a bank account, CNY 1,200 for a capital verification report, as well as other fees needed to authenticate documents which makes the additional costs an NGO has to pay for registration the same as the one has to pay when registering a company. In addition the CNY 30,000 (taken as a proportion of the total capital requirement) an organization has to provide, represent up to 10% of its registered capital while the CNY 300,000 required to set up a company represents just 1%. Such a situation is deeply unreasonable for non-profit organizations.

(5) Foreign organizations

Although Guangdong’s “Program” was clearly intended to show that the registration process was open to foreign organizations, the emphasis placed on promoting “service providers in Hong Kong and Macao to establish privately run enterprise units that offer welfare services targeted at the elderly and those with disabilities” appears narrowly focused.

More importantly, civil affairs departments have yet to publish their specific registration management approach regarding foreign institutions, and China still has no law to govern the activities of INGOs based in China. As a result, besides from a few social organizations, the majority of non-enterprise units and foundations remain unregistered. According to data from 2009, the total number of international organizations registered across China came to just 18 foundations and 56 non-enterprise units, all of which are basically registered with the Ministry of civil affairs at national level.

“Organization M” (hereinafter referred to as “M”) has been working in China for more than 20 years and was encouraged when it heard that Guangdong had introduced a new, liberalized registration policy for foreign organizations. Because of internal policies, M does not want a Chinese national to act as its legal representative. However, with the new regulations, it is now possible for an overseas resident to become a legal representative.

Because M is unable to register in an official way, it is not recognized as a legal entity in the mainland, and therefore has to rely on individuals to bring foreign currency into the mainland to support its operations. However, this complicates the delivery of larger, more costly projects since Chinese citizens can only exchange foreign currency worth CNY 50,000 per year. Even if M registered as an industrial and commercial entity, the organization would still need to pay a 5% tax on each sum of money received. Further, since civil affairs departments have issued new policies aiming at reinforcing the support and management of public interest organizations, the Department of Industry and Commerce has become particularly cautious over the registration as companies by public interest organizations.

Despite its long-standing relationship with Chinese governments in project implementation, M still aspires to having its own legal status. In this regard, Yunnan’s relatively open attitude towards foreign organizations is illustrative of how foreign organizations can be attracted to set up base: as of August 2010 13 INGOs had signed agreements with and has been put in official record(备案)by the Yunnan provincial government ; and by December the number reached 140. In Guangdong, where the level of international exchange is greater due to proximity to Hong Kong and Macao, the demand is even greater.

(6) Post-registration difficulties

Some have likened the registration process for social organizations to “being under siege” – with those on the outside wanting to get in and vice-versa. Such an expression is symbolic of the various problems that organizations face post-registration.

The most significant difficulty faced by Shenxin Feiyang was financial. For instance, organizations are required to pay taxes following registration, which accounts for a huge slice of expenditure. Moreover, social organizations still face great difficulties to be eligible for corporate income tax exemptions and acquiring qualification to deliver invoices for their company donors to deduct the donation as expenditure before paying tax. Additionally, all of Shenxin Feiyang’s organizational costs are presently divided between volunteers and staff, which places a significant strain on volunteers.

Social organizations have also generally maintained their own methods and standards in relation to financial record keeping, making financial disclosures in line with donor requirements. Conversely, most have only a partial understanding of the Ministry of civil affairs’ compliance requirements and therefore have adopted a “move slowly” approach to give themselves time to feel their way around the new system.

Lastly, organizations are also reporting that time spent on compliance has increased dramatically post-registration. For instance, Guangzhou Gold Ribbon Special Children Parents Centre (金丝带互助中心) says that it has had to sign vouchers for disbursement almost every day since registration. Meanwhile, the introduction of more complex processes has also put greater pressure on its team of volunteers, upon which it relies heavily to deliver services.

(7) Policy recommendations

Based on the above analysis, the following specific policy recommendations are proposed:

(i) Continue to relax and clarify the scope of what constitutes a public-interest charity. Following the introduction of the new system of direct registration, organizations already known by the public, such as some environmental and social work organizations may still encounter certain challenges (e.g. in terms of registered capital and premises), those challenges can be overcome through hard work. However, for those organizations that are not publicly recognized by society, such as the PLFAG example quoted above, registration remains as tough as ever. Research now shows that the number of gay people in China may have reached as many as 50 million, up from around 5-10 million when figures were first published in 2004. Therefore, the authorities should include the organizations that support and help gay people and there families in “public-interest” organizations. Further, the scope of what constitutes a “public-interest charity” should also continue to be broadened.

(ii) There should be greater consistency between civil affairs departments at different levels of the administrative system. As mentioned above, there are currently competing definitions of a “public interest charity” as well as operational procedures that need to be streamlined. Guangzhou’s city level civil affairs bureau should maximize efforts to streamline policy implementation through better coordination and delivery of standardized training to counterparts at district-level.

(iii) The requirements in relation to finding acceptable premises should be reduced. Many fledgling social organizations do not require large premises, so sharing venues and office space is actually a very practical approach. Civil affairs officials should acknowledge the situation on the ground and make appropriate adjustments to the current policy, which restricts different organizations from registering with the same address.

(iv) The Ministry of civil affairs needs to work with greater care and be sensitive to the fact that some seemingly minor issues may actually place a significant strain on some social organizations. For example, when Shenxin Feixiang was issued with its certificate the character “district” had been omitted which, so far as the civil affairs department was concerned, did not cause any concerns. However, Shenxin Feixiang’s application for a bank account was nonetheless turned down, since the bank was unable to reliably verify the identity of the organization. In the end, it was only after representatives from Shenxin Feixiang had liaised with staff from both sides that the organization was finally able to convince civil affairs to issue a further confirmation of proof that finally allowed them to successfully open a bank account.

(v) The Ministry of civil affairs should coordinate with other parties to reduce the overall cost of registration. Currently, the various fees charged to social organizations and commercial organizations are the same when in fact fees to the former should be reduced.

(vi) Since Guangdong’s blueprint has already made reference to the registration of foreign organizations, specific regulations for these entities should therefore be released as soon as possible, in order to avoid accusations of another false dawn. This would also assist the large number of INGOs already working in Guangdong that would like to secure their legal status in China.

(vii) Coordinate and approve the tax-exempt status of social organizations as soon as possible after registration. In July 2012 research conducted by the Sun Yat-sen University Philanthropy Research Center revealed that social organizations found it difficult to obtain such exemptions, leading to a corresponding increase in their administrative costs, when in fact government should be supporting social organizations through effective tax relief measures. Moreover, MoCA should coordinate with the tax department to ensure that tax exemptions are obtained as soon as possible after registration.

(viii) Civil affairs departments should develop more training for social organizations in respect of registration, finance, and annual compliance checks so that they can begin to work in line with standardized practices more quickly. Since MoCA began to deliver annual compliance training to registered organizations, the feedback from many has been that such training is essential while others complain that they were unaware of such provision, due to ineffective advertising. Civil affairs departments should therefore increase both training provision and communication efforts, in order to reach out to organizations that would like to register.

 

广东新政下社会组织注册的现状与困境 近20年来,“双重管理”制度已经从一开始被看作是允许社会组织成立的突破,到成为社会组织发展的严重障碍。本文试图以广东社会组织注册新政实施以来的实践为考察对象,深入探索了解广东省和广州市社会组织登记政策改革的逻辑,审视改革过程中所遇到的不足,并基于此提出相关的政策建议。

2012年5月1日起,广州市全面实施社会组织直接登记,即除法律、行政法规规定的如民办教育、民办医疗、民办培训类社会组织成立须经政府有关主管单位前 置审批或审核外,其他社会组织可以直接向民政部门申请登记。事实上,自2012年1月1日以来,广州市已大力推行社会组织直接登记。除这些需前置行政审批的组织类型以外,行业协会、异地商会、公益慈善类、社会服务类、经济类、科技类、体育类、文化类社会组织等已实现直接向管理机关申请登记。

2012年7月 1日,这种双重管理的突破扩大到广东省,除了特别规定和特殊领域,广东省内成立社会组织,不用找业务主管部门,并可直接向民政部门申请登记。

其实,广东省开放社会组织登记试点工作更早已经开始。以深圳为例,自2009年与民政部签订《推进民政事业综合配套改革合作协议》以来,深圳市社团与民非的总量在不断的增长,三年半以来已经从3759家增长到4661家,增幅近一千家。全面放开登记后,广州社会组织的登记也呈现惊人的发展趋势。截至 2012年7月短短两个月间,广州新增市级社会组织18个,另有15个社会组织已通过核准名称,处于筹备组建阶段。

虽然广东地区不同程度地开放了社会组织注册的政策,实行“宽进严管”的规则,也使社会组织的登记较以往容易,可是这并不代表社会组织的注册之路就一帆风顺。总的来说,广东社会组织在新政策下的注册主要面临以下问题:

(一)关于“公益慈善”的概念标准

核名是社会组织注册的第一步,也是民政部门初步评估机构是否符合注册条件、是否需要指导单位的重要一步。广东省的《关于广东省进一步培育发展和规范管理社 会组织的方案》(以下简称《方案》)明确指出允许公益慈善类社会团体名称使用字号,这是慈善事业“去垄断”的一个重要方式,同时也使社会组织在注册后不至于失去原有的品牌和积累。

但是,很多社会组织在注册的时候还是遇到了麻烦,因为民政部门对于“公益”并没有明确的定义。各地、各级民政部门对此解读不一,甚至是同一民政部门内部工 作人员对此的解读也不一样,所以一些相对来说不那么开放的民政部门可能在第一道程序上就会拒绝社会组织的申请。很多社会组织反映说取名是非常有技巧的,很 多组织也因为一开始不熟悉这些技巧而吃亏。

广州市黄埔身心飞翔心理援助服务中心(以下简称“身心飞翔”)从2011年底就开始留意关于注册的各方面信息,也先后咨询了广东省与广州市民管局。一开 始,身心飞翔希望能够注册为“广东省/广州市青少年心理援助中心”,以社团的形式登记。因此,2011年9月,其负责人首先咨询了广东省民管局,但是省局并没有具体的意见,只是说因为其业务范围涉及青少年,所以应该找团省委作为主管单位。后来他们又到市民管局询问,并已经提交申请,但在核名的阶段同样被建议找“市共青团”作为业务主管单位,但是因为不想丧失机构的独立性,他们决定放弃在市里申请注册。市级民管局的官员给的具体建议是,不如尝试以公益类民非 或者社工机构注册,并耐心地逐条说明社团与民非之间的区别。随后身心飞翔的工作人员决定寻求区一级民政注册。

2011年底正值社会组织登记改革的过渡期,区一级民政的信息并没有更新,因此身心飞翔的工作人员跑遍了海珠、越秀和番禺等民政局,直到来到已经接到新通知的黄埔区民政局。该局收到通知,NGO注册可以去掉业务指导单位,但并没有实施的细则。于是该局负责民间组织的主任特意到市局去了解,但得到的答案还是没有细则,只能用旧的方案申请。递交了申请书之后,身心飞翔终于在2011年11月23日获得批准注册的通知,然后用了半个月的时间通过了核名申请(此次他们申请的是民非注册,去掉”青少年“字样,加上”身心飞翔“字号),准备下一步的工作。在所有的材料都已基本备好之时(2012年2月),身心飞翔又收到民政局通知,说对申报材料有了新要求,旧的已经弃用。于是,所有材料都需要重新准备,包括盖章、身份证等等。

广州市绿点公益环保促进会(以下简称“绿点”)的注册并没有遇到大的问题,但他们同样表示在核名的阶段花费了较大的精力。一开始绿点希望采用“教育中心”这一名称注册成为社团,但核名时,相关领导觉得这像是事业单位的名称,不能“僭越”,故而改用“促进会”;

对于一些还未被广泛了解与接受的组织来说,注册还和以前一样艰难。同性恋亲友会(以下简称“亲友会”)的执行主任阿强为了机构注册,七进七出省民间组织管理局,从科员、科长,到处长、副局长,再到局长,把该局管民非注册的所有负责人都“过”了一遍。最后阿强收到省民间组织管理局局长的批示——“请市民政部门办理”。而后,他接到民政部门的口头答复:无法律说同性恋合法,暂不办理。阿强据理力争:“恰恰相反,中国没有一条法律说同性恋不合法。法无禁止都是合 法的;也没有一条法律说异性恋是合法的。如果不给注册,请给出明确的、书面的答复。”在这种拉锯中,同性恋亲友会至今仍未注册成功。

(二)场地问题

场地问题是不断被社会组织提起的一个问题。民政部门的注册指引中规定,需要有场所使用权证明。同时,虽然规定中没有明确要求民宅不能作为注册的地址,但是有些民政部门会要求只能使用商业地址注册。

以上的要求对于资金充裕的社会组织来说不太难,但是对于一些刚起步的社会组织来说,困难很大。拜客广州已经通过了核名审查,但现在面临最大的问题就是场地问题。以前,拜客广州与另外一个社会组织共用一处办公场所,这家组织已经使用此地址注册为社团,所以拜客广州不能再用同样的地址注册。而以拜客广州现在的资金情况以及人员规模,无力负担独立租办公场地的费用。更重要的是,共用的办公室已足够展开活动。因此,它希望能找到一间可提供无偿使用协议、仅供注册用的商用办公室。

绿点由自己创立的公司写了一份无偿捐赠使用证明解决了注册场地的问题。不过,未来的政策可能不再允许同一地点注册两家不同性质的机构,因此以后这个方法也可能不管用了。其实政策上并没有硬性规定说不允许民居作为注册地,只是用作办公地点的场所需要一些安全鉴定和消防验收证明,而民居可能无法出具这些证明。实际上民政方面态度也有点模糊,说“如果没有培训项目,聚集的人不多,也可以看看领导怎么批”。

(三)各级民政部门自由裁量权过大

“广州市社会组织直接登记”被列入了市社工委的社会创新观察项目,将民办非企业的登记下放到区(县级市)一级。也就是说,对于民办非企业单位来说,基本上取消了市内地域上的限制。这对于社会组织的登记是一件好事,因为它们可以选择在机构所在地附近的民政机构进行登记,实施起来非常方便。可是,各个区的民政局对登记政策的具体执行标准不一,为希望注册为民非的社会组织带来了诸多不便。 首先,不同的民政局对谁可以注册“公益”组织的标准并不一致。拜客广州的负责人说,尽管进入了越秀区的孵化基地,可是越秀区民政局的工作人员说,像它们这类大学生组成的组织,要不注册成为自行车俱乐部,要不直接挂靠在团委下面成为一个志愿者团体,并不需要独立注册成为一个公益性的民非。这显然不是拜客广州所愿,因此拜客广州放弃了在越秀区民政局注册的打算。海珠区民政局的态度较为开放,窗口的工作人员说虽然不保证能够成功,但会尽力帮他们将材料递上去。事 实上,拜客广州在海珠区民政局的核名非常顺利,很快就得到了批准。

其次,各区民政局对操作细则的熟悉程度不一,给社会组织实质登记带来了不少麻烦。智行广州在第二次注册时,管理审批权已经被下放到了区级民政局,因此转向越秀区民政局申请,但是由于区民政局对政策和一些细则十分不熟悉,而政策本身还处在不断调整改变过程中,因此区民政局需要不断地向市局请示,申请机构需要不时去市局咨询相关问题,一些填写的表格不断改变,同时由于需要指导单位、需要提交更为详细的举办人信息等情况,区一级的控制似乎更加严格。

一些机构也体验到了政策的反复给注册工作带来的不便。例如,广州向阳花女工活动中心注册时发现,需要提交的表格中的一些项目细则,民政方面都一直在修改, 因此表格被发回重写了3次,每次重新填写都会耗费他们的大量精力。向阳花希望注册为一家社工机构,最初的政策只需要法人代表具有社工资格或背景即可,后来 新增了一些条件,如发起人以及理监事会和工作人员中至少1/3具有社工资质才能注册为社工机构。他们的解决办法是,考取社工证以达到这一指标。

(四)注册资金

注册资金对于初始发展的社会组织也是一个问题。现有的政策是,省级以下注册民非需要3万元的注册资金。向阳花表示,像他们这类性质的机构,主要是以项目筹款,因此很难有人愿意专门资助一笔钱来用作注册资金,因此这笔钱很可能只能由发起人自己来承担,这对于发起人来说是个不小的负担。

另一个问题是注册过程中所产生的其他费用。拜客广州的负责人表示,除了3万元的注册资金,银行开户要700元,验资报告要1200元,还有刻公章等收取的费用,这些项目的收费完全与注册企业一样。如果说一个公司的注册资本是30万,那么这些费用可能只占他们注册资本的1/100。但是注册一个NGO,他的 注册资金是3万,那么这些收费可能就占到了1/10,这对从事公益活动的非营利组织来说,是非常不合理的。

(五)涉外机构

虽然广东的《方案》明确表明开放涉外组织的登记,可是一来其重点放在“推进港澳服务提供者以独自民办非企业单位形式举办养老机构和残疾人福利机构”上,范 围较窄。

其二,也是最重要的一点,民政部门现在还未就涉外组织登记出台具体的登记管理办法,我国对境外非政府组织在华活动的管理尚无法可依, 涉外社会公益组织除少数社团外,民办非企业单位和基金会基本上未开展登记工作。据2009年中国社会组织统计数据表明,全国登记的国际及涉外组织只有18 家基金会和56家民办非企业单位,而且基本上都是在国家民政部登记的。

M组织在中国开展工作已超过20年,当听到广东省出台放开涉外组织注册的新政时,M组织似乎看到了一点希望。因为在M组织内部,他们并不希望由中国大陆的人担任机构的法人代表,而政策放开以后,就可以让海外居民做法人代表。

因为不能注册,M组织在大陆不是法人机构,它只能靠个人兑换外币进入大陆用作项目资金,而每个中国公民每年能兑换外币的额度为5万人民币,这对于运作大型项目来说,远远不够。另外,若工商注册,M组织每进一笔款项,都需要缴5%的税。实施上,因为民政部门已经出台政策加强对公益性机构的扶持和管理,所以工商部门现在对这种公益性组织的工商注册行为也特别的谨慎。

虽然M组织长期与中国的政府部门以合作方式开展项目,可是这家组织还是希望能有一个合法的身份。云南省一直对涉外组织抱有比较开放的态度,也因此吸引了很多涉外组织驻扎。截至2010年8月,有13家在滇境外NGO获得备案通知书。2010年12月,备案的境外组织数量达到140家。广东省毗邻港澳,与国际的交流也较多,因此在这方面的需求也较为迫切。

(六)注册后的困难

有人把社会组织的注册称为“围城”——在外面的人想进去,进去的人想出来。这种表达其实说明了一个问题:社会组织注册了以后,也会遇到不少困难。

对于注册后的困难,身心飞翔表示主要是资金方面的问题。机构正式注册后意味着需要按规定交税,这是一笔庞大的开支。而对于企业所得税等的免除以及税前扣除资格的获得,社会组织还是面临着极大的困难。目前,身心飞翔的所有费用都是由志愿者和工作人员摊分,这给志愿者造成了较大的负担。

另外,在财务的规范化方面,以前很多社会组织有自己的一套财务规范,同时也会按资助方的要求进行财务公开。但是大部分的社会组织并不十分了解民政部门对财务方面的要求,因此需要慢慢摸索。

最后,有机构表示注册后工作量都大幅增加了。金丝带互助中心的负责人表示,自从注册之后,几乎每天都要在支付审批表上签字。除了少量的职员外,金丝带互助中心主要是靠义工来运作。他们用业余时间来做公益,而注册之后繁杂的流程给他们工作带来了更多压力。

(七) 政策建议

基于上述考察和分析,本文提出以下具体政策建议:

1. 继续放宽和明确公益慈善类的范围。政策放开后,对于像环保类、社工类等公众广泛了解的组织来说,注册可能只是走程序,虽然他们也可能会遇到注册资金、场地之类的问题,可是这毕竟是可以靠组织自身的努力去克服的。但是对于一些还未被广泛了解与接受的组织来说,注册还和以前一样艰难,如上文提到的同性恋亲友会七进七出省民间组织管理局的例子。事实上,2004年我国首次公布中国同性恋人群的数量为500~1000万人,而长期从事同性恋研究的专家则估计这一数量可能已达5000万人左右。为同性恋人群及其亲友提供支持和帮助的社会组织,也应该被定位为“公益慈善类”的组织。公益慈善的概念和范围宜继续拓宽。

2. 各区(县级市)民政部门之间需要协调一致。如上文提到,各区民政部门对于“公益慈善类”的定义不一,对于操作上的具体实施标准也不一样,这致使本来应该是 “标准化”的程序呈现出各自为政的一面。广州市民政局须协调各区的民政部门,进行统一的培训与协调,尽量在政策的实施过程中“标准化”。

3. 对场地的要求应该降低。对于很多刚起步的社会组织来说,并不需要一个很大的场地,与其它组织合租、使用同一个场地是更为切实的做法。民政部门应该重视社会组织对办公场地的需求,适当放开对于注册场地不能“一地多用”的限制。

4. 民政部门的工作需要更加细致。一些问题看似小,却会给社会组织带来极大的困难。以身心飞翔为例,在其名称核准文件中写的是“广州市黄埔区身心飞翔心理援助服务中心”,而在发证的时候写的却是“广州市黄埔身心飞翔心理援助服务中心”。后来身心飞翔到银行办对公账户时,银行因为这个“区”字的差别而不予办理。 民政方面表示有无“区”字都表示同一家机构,而银行方面则认为中间可能会有差异。最后身心飞翔的工作人员与两方进行多次沟通之后,终于能说服民政部门出具一份相关证明,然后才在银行成功办理账户。

5. 民政部门需要协调物价局等各方,降低注册过程中所产生的费用。现在,对社会组织收取的各种费用与商业组织收费相同,民政部门应出面协调,降低非营利组织在注册过程中所产生的相关费用。

6. 尽快出台涉外组织登记细则。广东地区已经有不少涉外组织在开展工作,它们希望能在中国境内取得合法的身份。广东省《方案》既然已提及对涉外组织的登记问题,就应该尽快拟定细则,不然相关的开放政策就只能是“一纸空文”。

7. 尽快协调社会组织注册后免税资格以及税前扣除资格的审定。中山大学公益慈善中心曾在2012年7月做了一份调研,发现民间背景的社会组织很难取得这两个资格,因此注册后由于税费问题带来机构的行政成本相应增大。事实上,对于税费的减免应是政府扶持社会组织的有力措施,民政部门应该协调财税部门尽快落实和规范社会组织注册后免税与税前扣除资格的审定。

8. 民政部门应多开展社会组织注册、财务、年审方面的培训,使社会组织更快地走上规范化的道路。现在民政部门已经有为注册机构提供年审等主题的培训,很多社会组织反映说这类培训十分必要,但也有已注册的社会组织表示根本不知道有这类培训,也没有收到过任何的通知。因此,民政部门应该加大开展培训的力度和宣传, 同时扩展培训的对象,如推广到希望注册的组织当中,让其对注册有更深入的了解。 (本文由中山大学中国南方公益慈善研究院供稿,马骅研究员主笔)

Article submitted by Ma Hua, a fellow writer at the Sun Yat-Sen University, South China Philanthropy Research Institute

Translated by Matt Perrement

Reviewed by CDB staff

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