23 January, 2017
On December 20, 2016, the Ministry of Public Security published the Directories of the List of Activity Fields, the Project Catalog, and the Relevant Regulatory Departments for Overseas Nongovernmental Organizations (2017) (the “Directories”) on its website. As the second set of supporting regulations 1 for the Law of the People’s Republic of China on the Administration of Activities of Overseas Nongovernmental Organizations in the Mainland of China (the “NGO Management Law”), the Directories aim to clarify the scope of activities that can be carried out in China by overseas non-governmental organizations (“Overseas NGOs”) and the competent authorities of those activities. We hereby provide the following high level comments on the main elaborations and highlights of the Directories, as well as certain issues that remain unclear at the moment.
Part I: Elaborations and Highlights
1. Fields of activities have been elaborated
According to the Directories, Overseas NGOs can carry out activities in a total of nine areas, with 54 sub-areas and 194 kinds of projects. In addition to the areas of economy, education, science and technology, culture, health, sports, environmental protection, poverty alleviation and disaster relief, which have been clearly provided in the NGO Management Law and the Guidelines, the Directories expand the remaining area of “other areas”, which now includes legal services, women's development and gender equality, and trade union work, etc. with a total of 8 sub-areas and 17 kinds of projects. For details, please refer to the online version of the Directories.2
2. The competent professional supervisory authorities have been listed
The Directories define the corresponding competent professional supervisory authorities for different fields. Most of them are departments or subordinate bodies of the State Council, while some are government-led public organizations, such as the All-China Federation of Trade Unions, All-China Women's Federation, and others are the corresponding competent departments of the provincial government and provincial public organizations. The division of supervisory responsibility is generally made in accordance with the original institutional functions of these supervisory authorities.
3. One professional supervisory authority for each Overseas NGO
According to the Directories, if an Overseas NGO carries out its activities in several areas, the Oversea NGO is only required to obtain approval from one leading professional supervisory authority. The determination of the leading professional supervisory authority shall be based on the main area of activities of the Oversea NGO. If an Oversea NGO has activities in multiple areas, the leading professional supervisory authority shall internally solicit the opinions from other implicated authorities.
Part II: Points to be clarified
Despite the Directories having elaborated to some extent on the competent professional supervisory authorities, the Directories are not detailed enough from a practical perspective. Correspondingly, it seems that Overseas NGOs are still not able to anticipate all the new expectations and prepare their application materials for their China activities.
1. The Provincial Directories have not been promulgated
According to the Directories, the public security department of provincial governments is authorized to formulate and publish the Provincial Directories of the List of Activity Fields, the Project Catalog, and the Relevant Regulatory Departments for Overseas Nongovernmental Organizations (the “Provincial Directories”), which shall be in accordance with local practices and in conjunction with local professional supervisory authorities, for providing guidance to Overseas NGOs registered in their regions. Unfortunately, as of the release of this Legal Bulletin, no Provincial Directory has been published. Thus, provincial requirements and policy remain unclear — for example, whether and to what extent the Provincial Directories will further elaborate fields of activities and the organizations in charge of operations for Overseas NGOs; or how to allocate the supervisory powers between national and provincial authorities, and etc.
2. It may not be easy to decide the right professional supervisory authority.
Although the Directories have elaborated the sub-areas of activities, major projects and the corresponding competent professional supervisory authorities, it is not a relation of one-to-one correspondence between the areas of activities and the competent authorities. For example, if an Overseas NGO wants to carry out activities in the sub-area of “Macroeconomic Research” under the “Economic” area, the competent professional supervisory authorities include National Development and Reform Commission, Ministry of Commerce, Ministry of Finance and their counterparts under provincial governments. Taking another example, if an Overseas NGO wants to engage in activities in the sub-area of “Research, Exchange and Cooperation of International Accounting and Audit Theories” under the area “Research, Exchange and Cooperation of Finance and Fiscal & Taxation”, the competent professional supervisor authorities could be Ministry of Finance, National Audit Office, and the competent departments of provincial government. Purely from a literal point of view, when an Overseas NGO compares its business areas with the Directories, it is still not feasible to anticipate which authority it is expected to turn to. We hope that the promulgation of the Provincial Directories, the interpretation of relevant departments and the direct communication will help clarify such practical issues in the near future.
Following the promulgation of the NGO Management Law, the Ministry of Public Security has issued two sets of supporting regulations in a short time, aiming to specify the supervision and guidance for Overseas NGOs. It is obvious that Chinese Government encourages Overseas NGOs to carry out their activities in China, and Chinese Government is striving to standardize the registration process and guide Overseas NGOs.
Put into practice, however, despite the Guidelines and the Directories providing some level of detail on the implementation of the NGO Management Law, their provisions still include ambiguities, and some operational details remain unclear. Since the Provincial Directories and working procedures of competent authorities have not been released, the operations of Overseas NGOs in China will still need to be reviewed, summarized and amended, according to what can be put into practice. We suggest that Overseas NGOs take active efforts to communicate with the registration departments and competent professional supervisory authorities, and try to obtain guidance directly from those authorities related to their specific circumstances to help solve practical issues and reduce risks (if any).
1 The first set of supporting regulations is and the Guideline for the Registration of Representative Offices and Submitting Documents for the Record Temporary Activities of Overseas Nongovernmental Organizations (the “Guideline”). Please refer to JunHe Bulletin dated December 6, 2016.
2 http://www.mps.gov.cn/n2254314/n2254409/n4904353/
For further information, please contact:
SUN, Jiangang (Roy), Partner, Jun He
sunjg@junhe.com
