Measures for the Designation of Charitable Organizations (draft for the solicitation of comments)

Source:http://www.chinalaw.gov.cn/article/cazjgg/201607/20160700481322.shtml

Article 1: These Measures are formulated on the basis of the "People's Republic of China Charity Law" (hereinafter "Charity Law") so as to regulate efforts to designate charitable organizations.

Article 2: After the "Charity Law" takes effect, social groups [社会团体] and social service organizations registered before the promulgation of the "Charity Law" may follow the provisions of these Measures to apply to be designated as charitable organizations.

Within one year of these measures taking effect, foundations shall go to the civil affairs department for their original registration, to have their registration certificates modified and reissued to indicate their nature as a charitable organizations.

Article 3: Civil affairs departments of all levels of people's government at the county level or above are responsible for the designation of social groups and social service organizations that they register, as charitable organizations.

Article 4: Social groups and social service organizations that are designated as charitable organizations shall meet the following conditions:

(1) have the implementation of charitable activities as their purpose, and a scope of operations compliant with the provisions of article 3 of the "Charity Law";

(2) Have an organizational charter compliant with the provisions of laws and regulations;

(3) Have its own name and domicile;

(4) Have necessary assets;

(5) The annual expenditures and management fees for charitable activities carried out in the year prior to applying are compliant with the State Council Ministry of Civil Affairs provisions on charitable organizations;

(6) Not having a goal of profit-making and using earnings and operating surpluses for the charitable purposes provided in the charter; assets and their proceeds must not be distributed among founders, donors or members of charitable organizations in any form; and there are provisions in the charter providing that excess assets are to be transferred to other charitable organizations with the same or similar charitable purposes;

(7) Complete internal governance structures, with clear mechanisms for decision-making, implementation, and oversight; and having complete financial systems;

(8) Other matters provided by laws and administrative regulations.

Article 5: In any of the following situations, social groups and social service organizations are not to be designated as charitable organizations:

(1) no longer possess the conditions for registering as a social organization legal person at the time of the application;

(2) There are circumstances where laws, regulations or national policies provide one must not serve as the responsible party of a charitable organization;

(3) Are included in the exceptions list at the time of application;

(4) Have received an administrative punishment within two years prior to the application.

Article 6: Applications for designation as a charitable organization shall be passed by vote at an assembly of members (delegates) of social groups, or by the board of directors for social service organizations; where there is a professional supervisory unit, it shall also be upon the consent of the professional supervisory unit.

Article 7: The following materials shall be submitted to the civil affairs departments in applications for designation as a charitable organizations:

(1) the written application (including the grounds for the application, and content such as the purpose, operational scope, and implementation of charitable activities);

(2) A financial audit report for the preceding year issued by a certified accountant, including special audit of the expenses and management fees for charitable activities;

(3) A written assurance that the conditions provided in article 4 of these Measures are met, and that they do not possess the circumstances provided for in article 5.

Where they have a professional supervisory unit, they shall also submit the consent documents from the professional supervisory unit.

Article 8: The civil affairs departments shall conduct a review and verification after receiving all effective materials.

Where the circumstances for designation are complicated, the civil affairs departments may solicit relevant departments' opinions or use methods such as holding discussion meetings or hearings to hear opinions, and may also conduct on-site investigations of the organizations as needed.

Article 9: Civil affairs departments shall issue a decision within 20 days of receiving an application. Where the conditions for charitable organizations are met, the designation is given and a public announcement is made; where the conditions for charitable organizations are not met, the designation is not given and the reasons are explained in writing.

Where there are special circumstances requiring an extension of the period for designation, an appropriate extension may be given upon permission of the State Council Ministry of Civil Affairs, but the extended period must not exceed 60 days.

Article 10: Social groups and social service organizations that are designated as charitable organizations are to have registration certificates issued by the civil affairs departments for their registration, indicating their nature as a charitable organization.

Article 11: Where social groups or social service organizations provide false information when applying, the civil affairs departments will lawfully pursue responsibility of that organization's persons directly in charge. The civil affairs departments will report accounting firms and the responsible persons to the relevant departments, where certified accountants' professional norms are violated by providing false audit reports on behalf of social organizations.

Article 12: After the "Charity Law" takes effect, social groups and social service organizations that have not registered as charitable organizations must not apply to be designated as charitable organizations.

Article 13: Social groups and social service organizations established before the Charity Law's promulgation shall submit applications for designation as charitable organizations within 5 years of these Measures taking effect.

Article 14: Foundations, social groups and social service organizations that are designated as charitable organizations shall carry out activities in accordance with the provisions of the "Charity Law".

Article 15: The Ministry of Civil Affairs under the State Council is responsible for interpretation of these Measures.

Article 16: These Measures take effect on September 1, 2016.