1. Backgrounds of the NGOL
2. Current legal framework for NGOs
3. Structure and content of the NGOL
3.1. Structure of the NGOL
3.2. Definition und activity fields of foreign NGOs
3.3. Activity forms of foreign NGOs
3.3.1. Jurisdiction of the regulatory authorities
3.3.2. Registration and establishment of representative offices in China
18.104.22.168. Requirements and procedure
3.3.3. Expected consequences of the required registration for practice
3.3.4. Temporary activities of foreign NGOs
3.4. Special provisions
3.4.3. Recruitment of staff
3.4.4. Membership in foreign NGOs
3.5. Powers of authorities for infringements
The regulation of foreign non-governmental organizations in China
By Dr. Markus Fisch LL.M.
The present article is devoted to China's first Law on the Management Of Foreign Non-Governmental Organizations' Activities within Mainland China which will enter into force on 1 January 2017. The reform plans of the Chinese government have caused a great echo abroad, since the new law will have a significant impact on the activities of foreign NGOs in mainland China. In future, they will have to choose between two forms of activities, either to establish a representative office or to carry out temporary activities. However, both cases require a registration process with the authorities of Public Security as part of the new comprehensive monitoring and controlling system.
At first, the article illuminates the historical and political background of foreign NGOs and their activities in China (1.). Then, a brief overview of the current legal framework, under which foreign NGOs in China are entitled to act, is given (2.). The focus lies on the analysis of the new legislation (3.), in particular, the registration procedure for both forms of activities, followed by a closer view on special provisions to be observed after a successful registration, and a discussion of the regulatory powers in case of a violation of the legal provisions.
About two years ago, the Chinese government has resolved to regulate actions of non-governmental organizations (民间 组织) more strictly. The implementation of this government resolution took place with the adoption of the Law on the Management of Foreign Non-Governmental Organizations' Activities within Mainland China on 28 April 2016 and its entry into force on 1 January 2017. Already during creating of the law, in particular whilst the unusually long period for the opinion statements by the public, the draft law received widespread negative media attention, at least in foreign media.
The heart of the NGOL is the supervision and control of foreign NGOs by the Public Security authorities. Although foreign NGOs are still not generally prohibited, they will be in future subject to a strict registration and monitoring regime that is expected to complicate their flexible and cost-effective operations.
Now then, the obvious question arises why the Chinese government is putting these obstacles in the way of foreign NGOs which mainly try to fulfill their social responsibilities.
1. Backgrounds of the NGOL
In the light of the previously lacking regulation of foreign NGOs, one could initially suspect that the new NGOL creates legal certainty and legal clarity in this field, and represents a further step on China’s road to the rule of law. In view of foreign organizations which try to enforce their own interests by lobbying, in particular the detection of their financial sources would indeed create more transparency. Art. 1 NGOL describes the purpose of the law very broadly:
This Law is drafted in order to regulate and guide activities conducted by foreign NGOs within mainland China, safeguard their lawful rights and interests, and promote exchanges and cooperation.
However, if these considerations would have truly played a significant role in the development of the law, the competence of the Ministry of Civil Affairs (中华人民共和国民政部) would have been sufficient, as provided in Art. 6 of the new Charity Law. But the NGOL does not mention the Ministry of Civil Affairs, instead considers the Public Security authorities, headed by the Office of Public Security (中华人民共和国公安部), as competent.
It is not surprising that the Chinese control and monitoring apparatus is further strengthened by the NGOL. As the internal communiqué no. 9 of the Communist Party from 2013 revealed, the social community is seen as one of “seven threats“ to the ideology of the Chinese government. The reason, given in the third section of the document, is that the civil society, which is characterized by inviolable civil rights, has its origin in Western countries. So, it is seen as political tool to dismantle the power base of the Communist Party and is hence threatening its influence.
Only a few months later, in November 2013, President XI Jingping announced the establishment of a National Security Committee which is responsible for fighting foreign and national security threats. Actually, the agenda of the first meeting in April 2014 stated an "urgent review of foreign NGOs".
Finally, in December 2014, the first draft of the NGOL was presented by YANG Huanning, former Vice Minister of Public Security, to the Standing Committee of the National People's Congress, but was not made available to the affected foreign NGOs.
2. Current legal framework for NGOs
The legal framework for NGOs in China was created in the 1980s and has since remained almost unchanged. Currently, Chinese law provides the following three organizational forms of NGOs:
- Social Associations (社会团体), such as the Communist Youth League of China and the All-China Women's Federation;
- Civil non-enterprise institutions (民办非企业), such as educational institutions and private hospitals; and
- Foundations (基金会), such as the Amity Foundation.
The individual types are regulated, among others, in the Regulation on Registration and Administration of Social Organizations (社会团体登记管理条例), the Interim Regulations on Registration Administration of Private Non-Enterprise Units (民办非企业单位登记管理暂行条例) and the Regulations on the Management of Foundations (基金会管理条例). Responsible for the registration of the aforementioned forms of social organization are the authorities of Civil Affairs.
In practice, additionally to these legally regulated organizational forms of NGOs so-called informal NGOs exist. They include organizations which are registered as a business, but actually operate as NGOs, unregistered local NGOs and international NGOs which so far float in a legal gray area of legality and now obtain a legal basis by the NGOL.
 Tsinghua University School of Law, Beijing.
 Hereinafter: “NGOs”.
 中华人民共和国境外非政府组织境内活动管理法 (hereinafter: "NGOL"); see the legal text in the Chinese original: <http://news.xinhuanet.com/politics/2016-04/29/c_1118765888.htm>; see unofficial English translation: < http://chinalawtranslate.com/2016-foreign-ngo-law/?lang=en> [last visited 9/22/16].
 A further milestone of China’s social reform is its first Charity Law (中华人民共和国慈善法) which was adopted on 16 March 2016 and will enter into effect on 1 September 2016; see <http://www.npc.gov.cn/npc/dbdhhy/12_4/2016-03/21/content_1985714.htm> [last visited 9/22/16].
 Eg http://www.cnn.com/2016/04/28/asia/china-foreign-ngo-law/; <https://www.hrw.org/news/2016/ 04/28/china-new-law-escalates-repression-groups>, <http://www.reuters.com/article/us-china-law making-ngo-idUSKCN0XM18D>; [last visited 9/22/16].
 Remarkable is the temporal relationship between the NGOL and the legislation in countries such as Russia, Pakistan or Egypt, which complicated the work of foreign NGOs on purpose with specific regulations in recent years.
 This was explicitly stated by the Chinese State Councilor YANG Jiechi during a roundtable on 7 June 2016, see <http://www.reuters.com/article/us-china-usa-lawmaking-idUSKCN0YT0PK> [last visited 9/22/16]. Also in this sense, FU Jing, spokeswoman of the National People’s Congress, described the purpose of the NGOL at a press conference on 4 March 2016 as follows: "We need to clearly specify which activities are illegal or prohibited. Mostly we are trying to provide a more standardized legal environment, not trying to restrict foreign NGOs from conducting beneficial activities in China.", see <http://in.reuters.com/article/china-parliament-ngos-idINKCN0W60DM> [last visited 9/22/16].
 See above footnote 4.
 China's budget for public safety has increased steadily in recent years and will do so also in 2016 by 7.6% to 954 billion Yuan (about 130 billion Euros), see report on the execution of the central and local budgets for 2015 and on the central and local draft budgets for 2016, Fourth Session of the 12th National People's Congress of the People's Republic of China on 5 March 2016, see in the original <http://online.wsj.com/public/resources/documents/NPC2016_Finance_English.pdf> [last visited 9/22/16].
 See English version <http://www.chinafile.com/document-9-chinafile-translation> [last visited 9/22/16].
 See <http://news.xinhuanet.com/english/china/2013-11/15/c_132892155.htm> [last visited 9/22/16].
 This information was briefly retrievable on the website of the local government of Shanxi Province, see <http://sinosphere.blogs.nytimes.com/2014/06/27/new-signs-that-china-is-scrutinizing-foreign-ngos/> [last visited 9/22/16].
 Unlike the term “NGO” suggests, many organizations of these three categories were established by the government or maintain a close relationship, even if they are managed autonomous to a certain extent. They are therefore referred to as so-called “state-organized NGOs”.
 State Council Order No. 250, issued on 10/25/1998, revised by Order No. 66 from 2/6/2016.
 State Council Order No. 251, issued on 10/25/1998.
 State Council Order No. 400, issued on 3/8/2004.
 As expected for some time, these rules are currently under revision. The original version of the Regulation on Registration and Administration of Social Organizations from 10/25/1998 was already revised at the beginning of this year. The Ministry of Civil Affairs has also published a new draft version of the Interim Regulations on Registration Administration of Private Non-Enterprise Units for comments by the public (see <http://www.mca.gov.cn/article/zwgk/tzl/201605/20160500000664. shtml> and <http://www.mca.gov.cn/article/zwgk/tzl/201605/20160500000665.shtml> [last visited 9/22/16]. In the revised provisions civil non-enterprise institutions are referred to as social organizations (社会服务机构), as they are also named in the Charity Law.