[Editor’s note:

On the morning of June 6th, 2023, the Law Working Committee of China Biodiversity Conservation and Green Development Foundation (CBCGDF) invited experts, scholars and staff from relevant departments in the legal field to offer guidance, conduct legal education and have a special study and discussion on the Law of the PRC on Administration of Activities of Overseas NGOs in the Mainland of China.

The meeting was held in the context that the Charity Law of the People’s Republic of China is in the process of revision. In the section of “Promotion Measures” of the draft for comments, the article “The State encourages international exchange of charity” has been added. It is important to learn relevant laws for charitable organizations to “go global”, better cooperate with overseas NGOs and “tell the stories of China”. At this meeting, many experts expressed insightful opinions.

This article will introduce the views of Mr. Zhang Yiping, Chairman of Beijing Changlin Public Welfare Foundation and Director of Han Ding United Lawyers.]

The Law of the PRC on Administration of Activities of Overseas NGOs in the Mainland of China (hereinafter referred to as the Administration Law) is the result of balance between national security and practical needs of the development of social organizations.

First of all, we should take a look at the concept of “carrying out activities”. The law does not specifically enumerate, nor does it give a definition. In my opinion, it is acceptable to include organizing, hosting, and co-organizing in the concept of “carrying out activities”. However, it will be much better if the law can provide a definite description of the concept so as to avoid differences of understanding.

Secondly, it is important to distinguish simple donating from carrying out activities in the Mainland of China. Generally speaking, when making a donation, the donor will choose whether it is restricted or non-restricted, mainly based on the purpose. It is rational to distinguish between the two. If the donation is non-restricted and there is not too much requirement to participate in specific activities, it should not be considered as an activity. If it has a certain purpose, or if its scope is very limited with strict requirements, it might be regarded as a disguised entrustment and constitutes carrying out activities in China.

The third issue is about the legal time limit for refusing or returning overseas donations. The accounts of non-profit organizations are open to the public. Theoretically, it is impossible to intercept the money. If the money goes to the account, it does not mean that the holder of account accepts the donation, thus violating related laws and regulations. However, if the foundation receives the money and uses it according to donor’s requirements while being aware of the situation, it may constitute a grant. Donations should be governed by the Charity Law, Public Welfare Donations Law and other relevant laws and regulations. If these laws and regulations do not make some special requirements, then public welfare foundations can accept such donations.

When it comes to the question of how should institutions and individuals within the territory regulate their activities, the laws and regulations concerning foundations are not very clear and it is not easy for supervisors to make decisions. However, if overseas institutions are involved, especially when we have to strike a balance between national security and practical needs of the development of social organizations, it would be better to be more cautious.

Original Chinese Article:

https://mp.weixin.qq.com/s/O7MRuDaar17JZpKUsvtsIA

Translator: Victoria

Checked by Daisy

Editor: Victoria

Contact: v10@cbcgdf.org; +8617319454776

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