We continue with Part 2 of our series on the China Charity Law and other regulations in China in partnership with Shanghai Legal Center for NGO (ForNGO) with weekly installments of ForNGO’s Charity Law Guidebook. We start with an introduction to the Guidebook and Chapter 1, an overview of China’s charity industry background. For a full list of articles part of this weekly series, please visit our intro article or sector news page.
China Charity Law Guidebook
The content and opinions contained in this Guide are for information purposes only. It should not be relied upon or treated as a substitute for professional advice or legal counsel. Under no circumstances will Legal Center for NGO accept responsibility for losses due to reliance upon this Guide. For advice, please refer to the services offered by China's professional supervisory units, civil affairs departments, and finance and taxation departments, or seek consultation from a lawyer or accountant.
Scope of the Guidebook
The Charity Law of the People’s Republic of China (“Charity Law”) came into force on September 1, 2016. It introduces a new legal framework for the philanthropy industry in China and refines the administrative role of the government in holding accountable the charitable organizations operating therein.
This Guidebook introduces the full scope of the Charity Law (including the industry and legislative background before the Law came into force). It presents the central idea of each chapter and analyzes the prevailing issues against related legislation. The appendix provides a practical guide inclusive of a toolkit (including the model text of relevant contracts and project documents) for reference.
This Guidebook was co-initiated by UNDP China and the Bank of Shanghai. The Chinese version was drafted by ForNGO. The authors are: Xuan Lu, Wenyi Lin, Zhe Fang, Xuewei Jiang, Li Lin, Huiqiao Yang, and Nanqin Ying. Special thanks to Mr. Mark Pufpaff for proofreading and editing the English version.
Chapter I Industry Background
1. General Composition of China's Charity Industry
1.1 Development Overview of China’s Charity Industry at Present
Ten Years of Rapid Development in China’s Charity Industry
Over the past 10 years, a series of natural disasters caused the introduction of Western notions of charity to China. This began a gradual development of civic awareness in China, facilitated by both the government and the Chinese public nationwide, culminating in the modern charity industry system prevalent in the country today. Social organizations, both domestic and foreign, have been founded at increasingly frequent rates and the public is showing a growing affinity for charity work. The approach to charity in China can be summarized in the following proverb: “Give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime.”
2008 has come to be known as the “first year of charity” and was an important watershed for China’s charity industry development. Influenced by the Wenchuan Earthquake and Beijing Olympics, 14.72 million people became volunteers in 2008; this number has since had an annual growth rate of 31.8%. Also in 2008, China received goods and funds from both domestic and international sources totaling RMB 107 billion, 3.5 times that received in 2007; RMB 37.1 billion were raised from public welfare funds and lotteries, an increase of 4.2% compared to 2007.
Appearance of a Social Charity Credibility Crisis
As China’s charity industry has grown, reputable social organizations and philanthropically-minded public figures have emerged. While these organizations and public figures have done much to create a positive face for China’s charity ecosystem, scandals have also emerged to taint and complicate these encouraging developments. One involved a woman named Guo Meimei; others included large foundations. Taken together, they created a crisis of confidence in China’s charity industry. Up until that time, many social organizations had weak internal governance mechanisms and were light on information disclosure. After these scandals, the charity industry began working to restore its credibility.
In an effort to restore such credibility, legislators have been attempting to responsibly regulate the charity industry as it continues to develop.
The Legalization of the Charity Industry Begins to Emerge
At the 2011 National People’s Congress, there were strong calls to legalize China’s charity industry. Local governments – such as those of Jiangsu, Hunan, Beijing, Guangdong, and Shanghai – introduced regulations doing just that, inspired by the formula: “From limitation and control to encouragement and support to non-profit organizations.” In Guangdong Province, for example, Shenzhen One Foundation was founded in 2011 and successfully began raising funds from the general public, thus relieving its dependence upon the Red Cross Society of China. In addition, the registration threshold for social organizations was lowered and the registration procedures were simplified. The government changed its approach to managing social organizations from one of control to one of support.
On September 1, 2016, the Charity Law was officially put into force. It worked to regularize China’s charity industry and acted as a springboard for discussing how best to undertake charitable activities in China. The Law also raised issues about concepts in need of definition, such as “charitable fund-raising”, “charitable trusts”, and “information disclosure”.
According to the Ministry of Civil Affairs’ 2016 statistical bulletin of social service development, as of the end of 2016, 29,000 social donation workstations and 8,966 charity supermarkets were established throughout the country; RMB 82.7 billion in donations were received throughout the year (a 26.4% over 2015); 11,658,000 people benefited from the funds received; 9,310,000 people offered 25,226,000 hours of volunteer services in social service fields; the number of social organizations throughout the country reached 702,000 (a 6.0% increase over 2015); 7,637,000 people were employed in charity industry-related positions (a 3.9% increase over 2015); and RMB 78.6 billion in other social donations were received. As expected, the legalization of the charity industry bolstered its development (within a regulated framework) and encouraged people nationwide to get involved in charitable activities.
1.2 Composition of China’s Charity Industry
a). Social Organizations
China’s social organizations include foundations, social groups, and social service organizations, and are important forces in China’s charity industry. Social service organizations were previously known as private non-enterprise units; after the promulgation of the Charity Law, such units were renamed as social service organizations. Foundations are financial groups formed based on certain property and public interest relations. Social groups are a kind of membership organization formed based on the social relations of people. Private non-enterprise units (social service organizations) refer to various privately established social agencies; they differ from social groups and foundations in that they are a kind of entity directly providing various social services.
Social organizations fill vacancies and remedy deficiencies in public fields by integrating and mobilizing social resources and by providing social services. Currently, China’s social organizations cover many fields, including poverty alleviation, assisting the eldery and orphaned, caring for the sick, helping the disabled, natural disaster relief, science education, and the protection of culture, health, sports, and the environment.
It is important to note that in the Charity Law, charitable organizations are taken as subjects to be regulated. According to Article 8 of the Charity Law, charitable organizations refer to “legally established non-profit organizations that meet the requirements specified in this Law and aim to carry out charitable activities in society”; “a charitable organization can adopt the forms of a foundation, social group, or social service organization”. Under the framework of the Charity Law, charitable organizations have identifiers. All foundations, social groups, and social service organizations established before the promulgation of the Charity Law can be recognized as charitable organizations only after application. As some of the particulars of the Charity Law are still being worked out, many social organizations have taken a wait-and-see attitude regarding whether to apply for charitable organization status.
b). Volunteers and Volunteer Service
According to the Volunteer Service Regulations implemented on December 1, 2017, volunteer service refers to “public service provided by volunteers, volunteer service organizations and other organizations voluntarily and free of charge to the society or others”.
China’s Volunteer Service Development Index Report 2016 shows that, at present, China’s volunteer service has three major features. First, per capita volunteer service time and the professional volunteer service rate have increased substantially. Second, based on a regional comparison, Beijing and the provinces in East China have a higher volunteer service development index than other places. Third, the state has increased the amount of inputs for volunteer service information collection.
Currently, the resource registration system has been adopted for volunteers in China. Volunteers may register their identity information, service skills, service time, contact information, and other basic personal information through the volunteer service information system developed by the Ministry of Civil Affairs of the State Council. They may also register via volunteer service organizations.
According to the information published at the 7th Meeting of the First Council of the China Volunteer Service Federation, as of December 17, 2017, the number of people registered in the national volunteer service system exceeded 67.2 million. There were more than 410,000 registered volunteer service organizations, 1.03 billion volunteer service items issued, and 810 million hours of recorded volunteer service time.
However substantial these numbers are, China’s volunteer service is still lagging behind many other countries regarding volunteer population, participation rate, and service time. According to the Donation Index of the CAF World Giving Index 2017, out of 139 countries, China’s volunteer service time ranked 134th. Volunteer service has historical, religious and cultural motivations in most developed countries. However, China is in the process of social transformation and as such will need time to inculcate the values and cultural norms needed to continue to support the development of a public spirit of charity. It will take time for volunteer service to become a regular public activity.
c). Charitable Donations, Charitable Fund-Raising
According to the provisions of the Charity Law, “charitable donations” refer to the voluntary, non-compensated donation of property by natural persons, legal persons, or organizations for charitable purposes; “charitable fund-raising” includes public fund-raising activities directed at society as a whole, as well as targeted fund-raising activities directed at specific recipients.
China’s Charitable Donations Report of 2016, issued by the China Volunteer Service Federation, shows that China’s social donations focus primarily on the fields of education, medical health, poverty alleviation, and development. Corporate donations, representing the majority of total donations, account for 65.2%, while individual donations represent 21.09%. For an idea of the scale of some individual donations, 35 of China’s most prominent philanthropists donated more than RMB 100 million each. However, it is China’s common people that are the core of the individual donation total, having reached RMB 9 billion in 2016, up from RMB 7.5 billion in 2015, an increase of about 20%. Considering donors’ age, the generation born after the 1980s donated the most of any generation, accounting for more than 45% of the total received; they were followed the generation born after the 1990s and then the generation born after 1970s, the former having more donations per capita, while the latter had a higher donation amount per donation received. Concerning the donation channel, mobile terminals have become the most popular, with the amount of donations by mobile phone accounting for more than 70% of the total received. Regionally, Guangdong, Beijing, Jiangsu, Zhejiang, and Shanghai have the most donors and the highest donation amounts.
Important to note is that China now has stricter restrictions on social organizations’ fund-raising behavior. It is stipulated in the Charity Law that only those charitable organizations with the requisite public fund-raising qualifications are allowed to undertake such activity. Moreover, with new fund-raising methods being afforded by the Internet, China has developed a charity information platform whereby all relevant inputs shall but published, as designated by the Ministry of Civil Affairs of the State Council. Currently, there are 21 online platforms approved for fund-raising.
2. Characteristics and Future Development Trends of China's Charity Industry
2.1 Characteristics of China’s Charity Industry
a). Historical Background of China’s Charity Industry
The idea of charity has a long history in Chinese thought. China’s ancient philosophers and schools of thought all had their own views on what charity is and what it means in practice. Their views laid the philosophical basis for the development of today’s modern charity industry. For example, the Confucian school promoted the idea of “benevolence and humanity”; the Taoist school advocated “treating others kindly, regardless of reciprocity”; the Mohist school emphasized “universal love” and “indiscriminate love”; and the Buddhist school believed in “karma” and “infinite compassion and mercy”.
In ancient China, the relief systems for famine, poverty, the sick, the elderly, and the young were managed primarily by the government. During the Zhou Dynasty, policies for elderly care, poverty alleviation, and assistance to the orphaned, young, sick, and disabled were common. During the Song Dynasty, a social relief system was developed, as well as a clan-based folk relief organization named Yizhuang. This organization provided assistance to those in the clan suffering from poverty, who shared the same family name. During the Ming and Qing dynasties, there was both an official system of charitable activities, as well as a flourishing of charity-focused folk associations.
The charity industry in ancient China, with its various dimensions and approaches to providing relief, cultivated a strong sense of responsibility among the people of that time. This awareness of the importance of charity laid the social and cultural foundations for the establishment of China’s modern charity industry.
b). Characteristics of China’s Modern Charity Industry
Today’s charity industry in China inherited the philanthropic spirit of its ancient cultures. With the rapid development of China’s economy in recent years, brought about in large part by market forces, demand for social services has increased to ensure everyone has the opportunity to participate in the country’s growth and modernization. In response to this, a number of public service figures and social organizations have emerged, devoting themselves to charity activities such as donating money and property and participating in volunteer activities.
According to the viewpoint of scholar Zheng Gongcheng, the modern charity industry in China has six basic characteristics. First, it is comprised of kind-hearted people, moral exemplars who can and do act as inspirations for others to support the development of a charitable culture. Second, the existence of disparities in living standards is the basis for those with means to assist those who are less fortunate or without access to equal opportunities. Third, charity can and will supplement and complement economic developments, which do not always affect or benefit everyone in the same measure or at the same time. Fourth, non-governmental private organizations, working in the social service sector, are the main drivers in the development of China’s charity industry. Fifth, donors select approved charity projects to support, in exchange for assurance that their donations are being used responsibly by the recipient. Sixth, there is a trend toward universal participation, where all members of society recognize and understand their responsibilities to assist those in need. Such participation is important because social organizations are dependent upon a sustainable flow of donations.
2.2 Developmental Trends in China’s Charity Industry
a). Legal Developments in China’s Charity Industry
Legal developments within China’s charity industry have provided unprecedented opportunities for charitable activities to flourish.
After the promulgation of the Charity Law, China’s Civil Affairs Administration Department released its Social Group Registration Management Regulations (revised exposure draft), Social Service Agency Registration Management Regulations (Interim Regulations for Private Non-enterprise Unit Registration Management) (revised exposure draft), and Foundation Management Regulations (revised exposure draft) to solicit opinions from society for the construction of a social organization registration management system.
Although new regulations for the aforementioned organizations have not yet been promulgated, the Ministry of Civil Affairs has published more than 10 departmental regulations and normative documents, including the Measures for the Accreditation of Charitable Organizations, Administrative Measures for Charitable Organizations’ Public Fundraising, Measures for Administration of Public Fundraising Platform Services, Notice on Record Filing for Charitable Trusts, and the Announcement on Appointing the First Group of Online Information Platforms of Charitable Organizations. After the official promulgation of the Charity Law, supporting regulations such as the Guidelines on Application for Charitable Organization Recognition, Guidelines on Charitable Organization’s Application for Obtaining the Qualifications for Raising Donations from the Public, and Notice on Synchronized Development of Party Construction Work of Social Organizations upon Their Establishment and Registration were published.
Additionally, in the General Provisions of the Civil Law, implemented on October 1, 2017, the classification system of profit-making corporate entities, non-profit corporate entities, and special legal persons was determined. It is stipulated therein that “non-profit corporate entities include public institutions, social groups, foundations, and social service organizations, etc.” Other entities in the charity field have laws, such as the Law of the Red Cross Society of China and the Law on Development of Activities within the Territory of China of Overseas Non-governmental Organizations.
b). Diversified Development of Social Organizations
First, the talent cultivation system within the charity field has been developed to provide support to social organizations. The Middle and Long-term Planning on Constru ction of Social Work Professionals (2011-2020) specified that, with the professionalization of social work personnel, social work service talents, social work management skills, social work education, and research capabilities are the three key areas to cultivate as China looks to develop its social work industry. There has been progress in the teaching of charity in China’s higher education, for example in the Public Charity Talents Program and Public Charity EMPA at Beijing Normal University. Additionally, many public interest training projects, aimed at improving social organizations’ professional abilities, have integrated international experience and provided capacity building for social work organizers and practitioners.
Second, the charity industry platform is intended to create solidarity and opportunities for experience sharing amongst social organizations. For example, there are different industry exchange activities, such as the Shenzhen Charity Conference, China Private Foundation Forum, and Shanghai Philanthropy Partnership Day. Social organizations can use these occasions to exchange with and learn from their peers in the industry and share resources with each other.
Third, cross-regional cooperation has become a model for development. The government, foundations, enterprises, and other social organizations are increasing their cooperation and thereby forming a dynamic public welfare ecosystem. With the development of the Internet and related information technology, opportunities have emerged for social organizations to participate in development work. Social organizations can and do use new media to conduct promotional activities, in view of improving their social recognition. They also disclose information regarding their operations and financial management via the internet, in order to build trust amongst their stakeholders. More importantly, new online donation systems have increased the ability for such organizations to fund-raise, thus increasing their ability to create impact.
Fourth, China’s social organizations have started “going out”. For example, the China International Communication and Promotion Association of Social Organizations, China Foundation for Poverty Alleviation, China Youth Development Foundation, and Global Commons Institute have all developed assistance programs overseas. Currently, China’s social organizations take part in a variety of international activities, such as holding cooperation and exchange conferences (e.g. C20 2016 China), carrying out public welfare activities (e.g. post-disaster community reconstruction in Nepal and “Marching Towards Brightness” in five countries along the Mekong River), and setting up overseas offices (e.g. the Amity Foundation Ethiopia Office and China Foundation for Poverty Alleviation Myanmar Office).
c). Mass Development Through the Participation of All People
With the media regularly reporting on China’s charitable activities, the public has been increasingly exposed to the value of it.
Major web portals have set up professional public welfare channels or websites to cover charity-related news, philanthropic figures, charity-based initiatives, and commentary on the development of charity ecosystems. Many celebrities, using the media and their public influence, have advocated for an increase in charitable giving across society, to the extent possible. Creative models, bringing together the best of technology and culture, have provided new ways for the public to participate in China’s growing charity industry.
September 9 is China Giving Day. It is an annual charity activity initiated by the Tencent Charity Foundation, along with hundreds of public service organizations, well-known enterprises, celebrities, and sympathetic media outlets. This event dovetails with China Charity Day, celebrated annually on September 5, a day supported by the State and managed by the Cyberspace-based Social Work Bureau of the Cyberspace Administration of China.
During China Giving Day, there are specially designed subway trains, HSR tickets, courses, and social good fairs on display to spread the spirit of charity. In 2017, 12.68 million people took part in the activities on Tencent Charity Foundation’s platform; approximately RMB 0.83 billion was donated, with Tencent and the caring enterprise partners contributing some RMB 0.3 billion and RMB 0.177 billion, respectively. The total donation amount exceeded RMB 1.3 billion.
Through a variety of channels, the public in China can consume charity-related news, learn about public interest projects, track relevant charitable organizations, and take part in charitable activities. They can also find inspiration through new models such as “MicroCharity” and get involved by way of volunteering. Awareness about the importance of charity is growing and lending itself to the full participation of the Chinese public in such activities.
3. Characteristics of Social Organizations in China
3.1 Non-profit Social Organizations
The non-profit characteristics of China’s social organizations are codified in law. For example, it is stipulated in the Interim Regulations of Private Non-enterprise Unit Registration Management that “private non-enterprise units are social organizations working on non-profit social service activities”; it is stated in the Social Group Registration Management Regulations that “social groups are non-profit social organizations formed by Chinese citizens voluntarily to develop activities according to their Articles of Association for the purpose of realizing the common will of members”; a final example is in the Foundation Management Regulations, where it is declared that “foundations are non-profit corporate entities established according to the provisions of Regulations to use the properties donated by natural persons, corporate entities or other organizations for the purpose of programs for public interest”. Moreover, the non-profit attributes of charitable organizations are also emphasized in the Charity Law. For example, in Article 52 it says, “the financial assets of charitable organizations can only be used for charitable purposes in accordance with the Articles of Association and the donation agreement and must not be distributed among the founders, donors or members of the organization”. This indicates that social organizations have a non-profit distribution restriction mechanism, and organizational members – directors, managers and employees – shall not benefit from the organization’s property and operation.
Social Attributes of Charity Property
A social organization’s property is public and can only be used for activities in line with the mission of the organization. Moreover, any remaining property after termination and deregistration shall not be transferred to private persons, including donors. According to the Charity Law, a charitable organization’s remaining property after liquidation shall be transferred to other charities with the same or similar purpose according to their Articles of Association or taken care of according to the discretion of the Civil Affairs Department. If donated property remains after the completion of a charity project, and a course of action is not stipulated in the donation scheme or agreement, it shall be used for other charity projects with the same or similar purpose and made public to the society.
Non-profit ≠ Non-profitable
Many people have a cognitive bias toward non-profit social organizations, holding that non-profit social organizations differ from for-profit enterprises in that they should provide free services and not receive remuneration. This is not the case. Social organizations accept donations, raise donations, apply for funding, and collect membership fees from society. They also consume public welfare human resources (e.g. volunteers) to cover the costs of their operation and development. These resources are all for the public welfare. In their operation, social organizations can certainly learn from commercial operating models how to preserve and increase the values of their assets and become financially self-sufficient. In order to sustainably create value for society, all such organizations must use economic resources to fulfil their social goals; it would be inappropriate to view the generation of economic benefits by non-profit organizations as anathema to their mission.
In practice, social organizations, especially social service organizations, view profit-making as critical to the success of their operations, exposing the contradiction between the nature of non-profit business models and the practices of for-profit enterprises. Taking private education institutions as an example, they were only allowed to operate as non-profit businesses. However, this prohibited them from realizing a return on investment, an expectation they had when the institution was founded. Many social service organizations in the education space registered with the Civil Affairs Department and adopted a commercial operating model. This allowed them to scale and maximize profits unscrupulously, sometimes even earning them “under the table”. In the Non-governmental Education Promotion Law (before its revision), the non-profit character of non-governmental education institutions was treated ambiguously, stipulating that “as to the non-governmental schools, after deduction of school-running costs, reservation of development funds, and withdrawal of other necessary expenses as per the related national provisions, their contributors can obtain a reasonable return from the surplus.” Management confusion within the non-governmental education field reflects deficiencies in the design of related regulations, in particular regarding the definition of “non-profit” and the effectiveness of the supporting provisions. The newly revised Non-governmental Education Promotion Law specifies that non-governmental schools are to be classified into profit-making and non-profit categories and that the operators of non-profit schools shall not obtain any earnings from the school’s operation.
Additionally, tax policies for social service organizations (private non-enterprise units) are different from those for foundations and social groups, the fact that they are all non-profit organizations notwithstanding (please refer to Section 2.4 of Chapter 11 for details). This is a challenge for founders of non-profit social organizations who have profit-making business units for purposes of financially supporting their activities. Moreover, no tax exemption or deduction can compensate for depriving charity properties of the ability to be fully used for charitable purposes.
In fact, profit-making institutions and non-profit social organizations can and should coexist in the social public service field. Non-restricted modes, such as the utilization of policy guides and market mechanisms, provide more space for social organizations to develop. For example, in the USA and Hong Kong, charitable organizations are to carry out their activities according to the relevant tax policy. Although those engaging in charity activities are not always non-profit institutions, if they are they need to pay taxes accordingly.
Considering China’s present situation, there are a number of developments necessary to mention. First, for profit-making institutions and social organizations in the same field, it is important to make clear their different operating models and approaches to registration management; Second, complementarity between non-profit organizations and for-profit institutions can be achieved by way of preferential policies for the former and policy guidance for the latter. Moreover, there is the practice of sharing and integrating resources amongst them.
3.2 Dual Structure of Civil Social Organizations and Government Organized Social Organizations
Administrative Dependency of Social Organizations
Currently, China’s social organizations are restricted by administrative concerns. First, many of them are either divided from the government internally or directly “organized by the government” itself (i.e. government organized, non-governmental organization “GONGO”). These organizations are born out of governmental agencies, lack independence and autonomy, and are operated and organized bureaucratically. Second, the government has strict supervision and management over social organizations. The registration management system, as part of the general system governing social organization management, is relevant at the stage that determines which organizations are under direct registration management and which are under dual management. Many social organizations receive their income from government allocations and subsidies. This indicates that they lack sustainable operating income and reinforces their dependency on the government. Third, the senior management positions of social organizations are often occupied by retired cadres, given their governmental affiliation and ability to obtain resources.
Administrative dependence causes a lack of transparency in the decision-making process and management of social organizations. Additionally, social organizations with ties to the government occupy the majority of the available resources, creating a monopoly in the market. However, due to such dependence, non-governmental social organizations find it hard to realize their desired social impact.
“De-administration” Trend Amongst Social Organizations
Recently, social organizations have accelerated the process of de-administration, intending to dilute their link with the government. For example, the General Office of the CPC Central Committee and General Office of the State Council jointly issued their Overall Scheme on Disconnecting the Industry Associations and Chambers of Commerce from Administrative Organizations (Scheme) in 2015. In China, many industry associations and chambers of commerce serve as assistants to the government in their management of particular industries, some of which transitioned from administrative departments to independent associations during the reformation of the government. Moreover, many officials in such associations have administrative positions. It is specified in the Scheme that in-service and retired public functionaries shall not hold office or take a part-time job in industry associations or chambers of commerce. In the financial industry, for example, industry associations and chambers of commerce shall implement the accounting system specific to non-governmental non-profit organizations; this is intended to organize their accounts separately and allow them to conduct their accounting independently. Moreover, since 2018, all appropriations for industry associations and chambers of commerce have been cancelled. The process of de-administration for social organizations will be both challenging and gradual.
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