China Development Brief
On the 28th of July, at the “Registration of Overseas NGOs in China” Workshop held in Beijing by China Development Brief, the Director of Jingshi Law Firm Dr. Zhang Lingxiao gave a presentation on the Overseas NGO Management Law, providing detailed answers to questions regarding the preparation of documents required for registration, the application procedures and examples of violations of the rules, among other topics. Below is a transcription of the PowerPoint from Dr. Zhang’s presentation.
Q1. How does an organisation prove that it is an Overseas NGO?
- Proof of legal establishment– issued by the official body of the relevant overseas registration department.
- Proof of Non-profit status – submitting the relevant certification as required under the specific circumstances of individual countries, such as registration with the Charity Commission in the United Kingdom.
Q2. In a situation where there there are multiple units responsible for supervising the same field of work, how is the specific supervisory unit determined?
According to the reply given by the Overseas NGO Office of the Ministry of Public Security, such a situation is to be negotiated by multiple operational units. Ultimately, the responsible unit is to be decided based on the nature of the main field of concern.
Q3. What documents are required for proof of legal establishment? Are original documents needed or are photocopies accepted?
Documents for proof of legal establishment are issued by the official registering body at the time of registration and include items such as a business license and other documents. Generally speaking, original copies of important documents are not needed; official documents or photocopies will be sufficient.
Q4. What are the requirements for the submission of the constitution?
The purpose of submitting the constitution is to assess whether the operations of the overseas NGO are related to the public good. The constitution must be submitted in full, and cannot be taken out of context.
Q5. What should the “Establishment of Overseas NGO Representative Office Registration Authorisation” contain?
To take the requirements of the Beijing Public Security Bureau as an example, the Registration Authorisation should be issued by the Head Office of the Overseas NGO, and must include two parts:
Firstly, the authorisation from the Head Office to set up a Beijing Representative Office. It must show that the Head Office agrees to set up a Beijing Representative Office and authorises the Beijing office to exercise some of the authority of the Head Office. State as clearly as possibly the location of the office, do not simply write ‘In China’ or ‘nation-wide’.
Secondly, the names of the proposed Chief Representative and of the representative staff. There is no need to write the names of all the employees. The Authorisation must be signed or stamped by the person in charge at the Head Office. The Authorisation does not need to be notarised, but if it is in a foreign language it must be translated by a qualified translation organisation.
The two parts of the Authorisation can be put in two separate documents, but when submitting on the relevant website they should be combined into a single PDF document.
Q6. How can an organisation prove that it has existed for more than two years abroad and conducted substantive activities?
- Financial audit reports from the last two years issued by a third party, in accordance with the requirements of the host country.
- Annual reports from the last two years signed by the person in charge.
Q7. What is accepted as proof of identity for the Chief Representative? What form should the proof of a lack of criminal record take?
- Accepted identity documents include mainland China ID cards, foreign ID cards, passports, Hong Kong, Macao or Taiwanese corresponding documents, etc. Overseas documentation must be notarised.
- Regarding the proof of a lack of criminal record, the Chief Representative can sign a fixed-format certificate of a lack of criminal record.
Q8. What must be included in the “Proof of residence” materials for the proposed Representative Office?
- Property rights certificate – to prove existence of the house.
- Leasing contract – to prove a leasing relationship.
Q9. What are the specific requirements for the “Agreement documents of the professional supervisory unit”?
- Official documents.
- A statement to “agree to be the professional supervisory unit of the Beijing Representative Office of XXX Organisation”, or a similar wording.
- The contact person and contact phone number for the professional supervisory unit; must also be stamped with the official seal of the ministerial unit or bureau-level unit with the right to examine and approve foreign affairs.
Q10. Which of the documents required for the application of a Representative Office must be notarised?
The documents required to be notarised are the “three certificates, one constitution”: supporting documents and materials for the legal establishment of the Overseas NGO, certification materials to prove that the Overseas NGO has existed for more than two years and conducted substantial activities, the identification of the foreign Chief Representative and the constitution of the Overseas NGO.
The specific procedure of notarisation varies from place to place, but all must be certified by the PRC embassy or consulate in the host country.
Q11. Is it necessary to translate all foreign documents?
Depending on whether the host country’s embassy or consulate requires the submission of translated documents at the time of authentication, we can distinguish two categories of situations:
The first category includes host countries such as the USA, where the embassy does not require the provision of Chinese translations to certify documents. After obtaining the certification, the Overseas NGO is required to find a qualified translation organisation in Mainland China in order to translate all the documents (including the Notarisation). A qualified translation organisation is one that can stamp the material with the file number.
In the second category, if the host embassy does require Chinese translations at the time of certification and has approved the translations in order to certify, then the registration authority will also approve them.
In both situations, the notarisation must be translated. Material written in Traditional Chinese must be accompanied by Simplified Chinese and signed by the person in charge; these need not be notarised. Material in Hokkien or Cantonese must be accompanied by the Mandarin version of the materials, which must be notarised.
Q12. Is there a way to remedy the situation if the registration authority makes a decision not to grant registration?
There are no provisions in the Overseas NGO Management Law for this issue, but we believe an organisation has the right to try to remedy the situation. Therefore, the Overseas NGO can apply for reconsideration by the administration. Alternatively, according to the rules of “Administrative Procedure Law”, the Overseas NGO can refuse to accept the decision made by the registration authority and file an administrative lawsuit; however, the principles of equality and reciprocity must be applied.
Q13. Is the Overseas NGO required to submit the original proof of establishment every time it carries out a temporary activity?
The first time that the notarised proof of establishment is submitted shall continue to count, and it need not be resubmitted for other activities carried out within a year’s time. Upon first submission to a foreign province or city, the authenticity and timeframe of the submitted materials should be verified by means of a contact mechanism. A photocopy can be collected to show eligibility.
Q14. Which agency provides the material to prove the source of funding for a Temporary Activity project?
Regarding proof material for the source of funding for a Temporary Activity, it is up to each donor to explain the circumstances under which donations have been made and to provide certifications. The donor needs to sign the documents, and all foreign language material must be translated.
If the Overseas NGO is fully funded, the organisation must issue a statement along the lines of “all funding is financed by our organisation”. If the Overseas NGO and the Chinese partner each contribute 50% of the funding, they must each make a statement on the contribution. In both cases, the Chinese partner is required to provide a bank account number and the name of the bank of deposit. They must also issue a statement explaining that “this account will be used for all of this activity”, the account is for “special funds” etc… This statement may be issued separately or attached to the Chinese partner’s funding certification. Even if the source of funds is already stated in a written agreement between the Overseas NGO and the Chinese partner, the material proving the source of funding for a Temporary Activity project will still need to be submitted for filing.
Q15. If there is more than one Overseas NGO or Chinese partner involved in the same activity, which organisation should issue the proof of funding?
It is up to the organisation with the most funding to issue proof of the unified source of funds, and state the funding situation of the other organisations. For example, if there are three Overseas NGOs contributing 1,000,000, 300,000 and 200,000 respectively, then the Overseas NGO contributing 1,000,000 shall issue the certificate, and state the funding situation of the other two organisations.
Q16. Which agency examines and approves social organisations without a competent PSU, comprised of a cooperating Chinese partner unit and Overseas NGO, registered in the Ministry of Civil Affairs?
Social organisation without a competent PSU registered in the Ministry of Civil Affairs shall be approved and issued with the relevant documents by the department with the right to approve foreign affairs.
Q17. Can regional Representative Offices operate across regions?
In accordance with the provisions of the “Guidelines on Registering a Representative Office and Filing to Conduct Temporary Activities for Overseas NGOs”, when an Overseas NGO establishes a registered Representative Office, they can opt for an area of activity within the provincial administrative district, or at a higher division, but the chosen area of activity must correspond with the actual situation of the Representative Office’s business scope and activities.
Q18. Why can branches not be set up in Mainland China? What are the exceptions?
- According to the explanation of the relevant personnel in the National People’s Congress Law Committee, since there are no restrictions on the number of Representative Offices to be established by Overseas NGOs, it is of little significance to set up branch offices.
- An exception will be made for foreign natural science academic institutions where the academic department has already set up a branch in China. These established branches will be approved.
Q19. Why can an Overseas NGO not fundraise in China? Can they passively accept donations?
- According to the provisions of the Charity Law, only charitable organisations that have been qualified for public fundraising can fundraise. Overseas NGOs and their Representative Offices do not conform to the relevant provisions of the Charity Law and cannot engage in fundraising.
- There is no clear provision in the law for the passive acceptance of donations. Some people believe you cannot accept donations but citizens, corporations and others in ownership of property have the right to free disposal of property; thus, if the law forcibly stipulates that Overseas NGOs cannot accept funds there arises a legal controversy.
Q20. Why can an Overseas NGO not develop a membership? What are the exceptions?
- According to the explanation of the relevant personnel in the National People’s Congress Law Committee, Overseas NGOs in China do not qualify as legal entities and their temporary activities are short-term activities; therefore, developing membership is not in keeping with the rules of Chinese law.
- However some Overseas NGOs have developed a membership in China, mainly the Foreign Society of Natural Sciences whose membership consisted of Chinese experts, scholars and scientists. This is an existing state of affairs. Additionally, the Chinese government supports scientists and scholars to join foreign science institutions, so these are exceptions to the State Council’s rule.
1. Minor violation – qualified but not within the rules
Example: Overseas NGO A has successfully established a Representative Office in Chinese province B, to run competitive activities and increase the innovative capabilities of students in province B.
Scenario 1: Now, a university in province C partners with the Representative Office of NGO A to develop an activity on universal copyright and related legal knowledge.
Scenario 2: Whilst conducting activities in province B, the Representative Office of NGO A asks each participating student to pay a contestant fee, generating high profits.
Scenario 3: A month after the establishment of the Representative Office of NGO A, the registration authority discovers that documents were counterfeit at the time of registration.
In light of the three cases mentioned above, NGO A must assume what kind of legal liability?
Legal liability 1: The public security organ of the municipality shall issue a warning or give orders to cease activities for a stated period of time.
Legal liability 2: The unlawful effects and illegal gains shall be confiscated.
Legal liability 3: In serious circumstances, the registration certificate shall be revoked and a ban imposed on the Temporary Activity.
Legal liability 4: Within 5 years of the date of revocation and ban, no further Representative Offices or Temporary Activities shall be established in China.
2. Relatively serious violation – unqualified but still carrying out activities
Example: Overseas NGO D has appointed Chinese citizen E to act as its agent in China, funding E to recruit staff in China to launch a campaign for the protection of small animals and to develop substantive activities.
Question 1: Overseas NGO D has not registered a Representative Office or filed a Temporary Activity. What kind of sanction will it face for funding the actions of Chinese citizen E?
Question 2: Can Chinese citizen E accept the appointment and funding of NGO D? What legal liabilities must they assume?
Legal liability 1: The public security organ of the municipality shall issue a ban on or give an order to cease the illegal activity.
Legal liability 2: The unlawful effects and illegal gains shall be confiscated.
Legal liability 3: The directly liable personnel shall be issued with a warning; in serious circumstances, they shall be detained for a maximum of 10 days.
Legal liability 4: Within 5 years of the date of repeal, revocation and ban, no further Representative Offices or Temporary Activities shall be established in China.
3. Serious violation – endangering national security and interests
Example: Overseas NGO F establishes a Representative Office in China and develops a programme in Chinese universities to promote the mutual exchange of learning between talented individuals at universities in China and abroad.
Scenario 1: Over a sustained period of time, the Representative Office of NGO F disseminates false statements from the foreign media about the Chinese government in their activities, leading the university students astray and causing an adverse social impact.
Scenario 2: NGO F is involved in economic exchange with Chinese university professors, steals Chinese national secrets and incites the professors to organize students to carry out political activities that undermine national unity.
In the above situations, what kind of sanctions will NGO F face?
Legal liability 1: The registration certificate shall be revoked or a ban imposed on the Temporary Activity.
Legal liability 2: If it does not constitute a crime, the public security organ of the municipality shall detain the directly liable personnel for a maximum of 15 days.
Legal liability 3: If it does constitute a crime, in addition to the punishments mentioned above, the directly liable personnel shall be held criminally responsible.
Legal liability 4: The organisation may be included in the ‘unwelcome list’; no further Representative Offices or Temporary Activities shall be established in China.
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，京师律师事务所主任张凌霄博士向与会者作了《境外非政府组织境内活动管理法》法律实务分享，针对注册需提交的文件准备、申请的流程、违法的示例等做了详细解答。以下为当日分享中摘录的部分重要问题。
答：合法成立的证明文件是由境外非政府组织在其注册登记时的注册登记官方机构出具，如营业 执照的证明文件等。一般来讲，重要性的文件不需要原件，能够有官方证明文件或者复印件 即可。
第一，总部授权成立北京代表处。表明总部同意设立北京代表处，给北京代表处授权行使总 部的部分权力。尽量写清楚代表处所在地，而不要写“In China ”或者“全国”。
答：需要公证认证的材料包括“三份证明、一个章程”：境外非政府组织在境外合法成立的证明文 件和材料、境外非政府组织在境外存续二年以上并实质性开展活动的证明材料、外籍首席代 表的身份证明以及境外非政府组织章程。
第一种，对于驻美国等国家的使领馆认证材料时不要求提供中文翻译件的情形，境外非政府 组织获得使领馆认证后，需要在中国境内找一家具有翻译资质的机构对所有材料（包括公证 书）进行翻译。具有翻译资质的机构指能加盖备案号方章的翻译机构。
答：《境外非政府组织境内活动管理法》中没有对该问题作出规定，我们认为有权利就当有救 济。所以，可以申请行政复议，也可以根据《行政诉讼法》的规定境外非政府组织不服登记管 理机关决定的，提起行政诉讼，但要适用同等原则和对等原则。
答：需要公证认证的成立证明原件以第一次提交时间为准，一年内有其他活动的可不用重复提 交。涉及第一次在外省市提交，通过联系机制核实提交材料真实性和时效。对于符合条件 的，收取复印件即可。
答：临时活动项目经费、资金来源证明材料，由各出资方对自己出资情况进行说明并出具证明。 需要签字，外文材料还需要翻译。如果境外非政府组织全额出资，那么该组织出具含有“全部 资金由我方资助”或其他类似表述的说明。如果境外非政府组织和中方合作单位各出资50%， 各自就出资情况作出说明。无论哪种情况，中方合作单位都需要提供银行账号、开户行，并 说明“此次活动全部使用此账号”“专款专用”等内容，可以单独出具此项说明或者附在中方合作 单位出资证明之后。即使资金来源已经在境外非政府组织与中方合作单位的书面协议里写 明，备案时仍然需要提交临时活动项目经费、资金来源证明材料。
答：由出资最多的机构统一出具资金来源证明，并写明其他机构出资情况。比如有三个境外非政 府组织分别出资100万、30万和20万，那么由出资100万的境外非政府组织出具证明，并写明 其他组织出资情况。
答：根据《境外非政府组织代表机构登记和临时活动备案办事指南》的规定，境外非政府组织设 立登记代表机构时，活动地域可以选择在本省级行政区内，也可以选择在一个省级行政区划 以上，但选择活动地域要与代表机构业务范围和开展活动的实际情况相符。
答： 1）根据全国人大法工委相关人员的解释，对于境外非政府组织设立代表机构的数量已经不 设限制，设立分支机构的意义不大。
答： 1）根据《慈善法》的规定，只有取得公开募捐资格的慈善组织才能募捐，境外非政府组织 及其代表机构不符合《慈善法》的相关规定，不得进行募捐。
2）对于是否能够被动接受捐赠，本法没有明确规定，有人认为不能接受捐赠，但公民、法 人等，对于拥有所有权的财产，有自由处分的权利，如果法律强行规定境外非政府组织不能 接受捐赠，在法理上存在争议。
答： 1）根据全国人大法工委相关人员的解释，境外非政府组织在中国不具备法人资格，开展临 时活动的也是短期活动，发展会员不符合中国的法律规定。
2）但原来一些境外非政府组织在中国发展过会员，这些会员主要指国外自然科学的学会， 中国的专家、学者、科学家加入了这个学会，这是一个现状。另外，中国政府也支持科学 家、学者加入国外的科学机构，所以国务院规定的除外。