Source: 《社会组织条例》不宜仓促出台，建议延长立法周期 by 南都观察
In the beginning of August, the Ministry of Civil Affairs published the “Regulations for the registration management of social organizations (draft to solicit feedback)” (abbreviated as the “Social Organization Regulations”). The new regulations represent the government’s attempt to combine the previous three sets of regulations, aimed respectively at social groups, foundations, and citizen-run non-enterprise units, into one comprehensive law for all social organizations. The draft aims at collecting opinions from public intellectuals and nonprofit practitioners before the law is finalized.
In response Liu Peifeng, a law professor at Beijing Normal University (BNU), and Ma Jianying, an associate law professor at BNU, have written a critique to analyze the legal context of this legislation and offer suggestions to the government.
From the perspective of legislative procedures, the two professors argue that the new regulations should serve as a resolution to the problems unresolved by the previous regulations, and a response to other existing laws. The previous three regulations generated many complaints within the nonprofit sector, for reasons including the rigid requirements for social organizations to register and the difficulty for them to find proper professional supervisory units. However, Professor Liu and Professor Ma find the registration requirements in the Social Organization Regulations even stricter. Moreover, the two professors criticize the new regulations as being inconsistent with the Charity Law. The previous three regulations underwent many revisions with the advent of the Charity Law, but the two professors see little reference to those revisions in the draft of the new regulations.
From the perspective of legislative principles, Professor Liu and Professor Ma are primarily concerned about three issues: 1) the new regulations lack reference to relevant charters on rights of association in the Constitution; 2) the draft is guided by a will to control, which is against the central government’s advocacy for government-society cooperation; 3) a basic law for social organizations resembling the Corporation Law is needed as a basis for the three previous regulations to be combined into one functioning piece of law.
Examining the specific contents of the regulations, Professor Liu and Professor Ma point out seven problematic aspects:
1) The issue of foreigners and people from Hong Kong/Macau/Taiwan forming associations is left out
The Overseas NGO Law regulates international NGOs’ work in China, but organizations created locally by people from overseas abide by laws and regulations for domestic social organizations. However, the new Social Organization Regulations do not mention how overseas citizens can possibly form a social organization in China, and the relevant parts in the original regulations for social groups have not been included. Thus, Professor Liu and Professor Ma address that as China opens up for more people from overseas, it is necessary to fulfil their needs to form associations and allow them to establish social organizations in China. It is particularly emphasized that for people from Hong Kong/Macau/Taiwan, legal permission to work in mainland China has brought them concrete needs to form associations in the mainland. The professors claim that responding to these needs can contribute to China’s unity.
2) The expression “for-profit activities” is unclear
The new regulations ban social organizations from “operating for-profit activities.” Professor Liu and Professor Ma find this terminology ambiguous, because social organizations should be allowed to earn profits, but the profits should go nowhere but to public welfare. Therefore, the two professors urge that the next draft rephrases accordingly.
3) Lack of “remedial options” in the registration process
Due to the strictness of the new registration requirements, the two professors suggest that some “remedial options” should be available for founders when their organizations cannot meet certain requirements to successfully register.
4) The new regulations lack protocols to tackle inactive organizations
5) Lower-level government agencies should be authorized to issue foundations’ registration certificates
Professor Liu and Professor Ma believe that the results of recent experiments letting city/prefecture governments issue the registration certificates of community foundations should be taken into consideration. Consequently, the new regulations should authorize lower-level government agencies to issue foundations’ registration certificates.
6) Party branch building should not be elaborated on in a legislation that aims at regulating social organizations’ work
7) Certain concepts should not be used interchangeably
The two professors explain that concepts such as “public welfare” (公益), “public welfare philanthropy” (公益慈善) and “philanthropy” (慈善) should not be addressed interchangeably. Their usage in the new Social Organization Regulations should match the Charity Law.
In conclusion, Professor Liu and Professor Ma hope that the Ministry of Civil Affairs can further polish the Regulations for Social Organizations, introduce a second draft to call for more feedback from the public, and allow the legislative process to proceed smoothly.