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China: Law Passed Tightening Control over Foreign Non-Government Organizations

(June 15, 2016) On April 28, 2016, the Standing Committee of China’s National People’s Congress passed the Law of the People’s Republic of China (PRC) on Administration over the Activities of Overseas Non-Government Organizations Within China, commonly known as the Foreign NGO Law.  The Law will become effective on January 1, 2017.  (Zhonghua Renmin Gongheguo Jingwai Feizhengfu Zuzhi Jingnei Huodong Guanli Fa (promulgated by Order No. 44 of the PRC President, effective on Jan. 1, 2017), the State Council official website; English translation, available at Westlaw China online subscription database.)

Purposes of the Law

The stated purposes of the 54-article Law are to regulate and guide the activities of overseas NGOs within China, safeguard their lawful rights and interests, and promote exchange and cooperation.  (Id. art. 1.)

Scope of NGOs Subject to the Law

Overseas NGOs subject to the Law are  “foundations, social groups, think tanks, and other non-profit or non-government social organizations legally established overseas.”  (Id. art. 2.)  NGOs from Hong Kong, Macao, and Taiwan are also subject to the Law — they are “overseas” although not “foreign” organizations under Chinese law.  “Overseas” (jing wai) under Chinese law generally refers to foreign countries and regions plus Hong Kong, Macao, and Taiwan.  The PRC Exit and Entry Law, for example, defines chu jing (exit, or leaving the borders) as “leaving the Chinese mainland for other countries or regions, or for the Hong Kong Special Administrative Region (SAR), Macao SAR, or Taiwan Region.”  (Zhonghua Renmin Gongheguo Chujing Rujing Guanli Fa [PRC Exit and Entry Law] (promulgated by Order No. 57 of the PRC President, June 30, 2012, effective July 1, 2013) art. 89.)

The Law’s registration and reporting requirements do not appear to apply to overseas schools, hospitals, research institutes of natural science and engineering technology, or academic organizations that engage in exchange and cooperation with their Chinese counterpart institutes and organizations, which according to the Law are subject to “relevant provisions of the state.”  (Foreign NGO Law, art. 53.)  The exempted foreign NGOs are still required to abide by article 5 of the Law regarding prohibited activities.  (Id.)

Activities Prohibited by the Law

The Law states that overseas NGOs may carry out activities in China that are “conducive to the development of public welfare undertakings in the fields of the economy, education, science and technology, culture, public health, sports, environmental protection, poverty alleviation, and disaster relief,” and affirms that the legal activities of overseas NGOs within China will be protected by law.  (Id. arts. 3 & 4.)

The Law provides that overseas NGOs must abide by PRC laws when carrying out activities in China and prohibits any activities that may “jeopardize the national unity, security, and ethnic harmony of China” or “harm the national interest, social public interest, or the lawful rights and interests of citizens, legal persons, and other organizations of China.”  (Id. art. 5.)

Requirements of Registration and Reporting

The most controversial provision of the Law may be the one that subjects the activities of overseas NGOs in China to police supervision.  The Law requires overseas NGOs to either register with the public security organs (police) to establish representative offices in China or go through a record-filing procedure with the public security organs in order to carry out temporary activities in the country.  (Id. art. 9.)  Specific procedures on registration, including alteration and termination procedures, are provided in articles 10 to 15.  (Id.)

An overseas NGO that does not have a registered representative office in China must work with a Chinese partner when carrying out temporary activities, and the Chinese partner is in turn required to obtain relevant permits and go through the record-filing procedure with the public security organs in accordance with article 17 of the Law 15 days prior to commencing the activities.  (Id. arts. 16 & 17.)

The registered representative offices are required to report to competent government entities their annual plans for projects and use of funds and, after being approved, file the plans with the public security organs for the record.  (Id. art. 19.)  They must also submit annual work reports to the competent government entities for “opinions” and then to the public security organs for review.  Annual work reports must include audited financial and accounting reports, the representative offices’ activities, and changes of personnel and organization; the reports will be published online on a website of the public security organs.  (Id. art. 31.)

Supervision over Overseas NGOs

The Law sets forth specific methods the public security organs may use in supervising overseas NGOs, as follows:

(1) hold “regulatory talks” with the chief representative and other principals of the representative office of the NGO;
(2) conduct onsite inspections by entering the domicile or premises of the NGO;
(3) make inquiries into the entities and individuals involved in the incident being investigated and require such entities and individuals to provide an explanation of relevant matters;
(4) consult and reproduce documents and materials relating to the investigated incident and seal up  documents and materials that might be transferred, destroyed, concealed, or altered; and
(5) seal up or seize the places, facilities, money, or property involved in suspected illegal activities.  (Id. art. 41.)

Punishments for Violating the Law

For specified serious violations of the Law, including carrying out activities in China in the name of the overseas NGO or its Chinese representative office without proper registration or record-filing, the directly responsible persons both of the overseas NGO and the Chinese partner may be detained by the public security organs for up to ten days.  (Id. art. 46.)  Article 46 also specifies other punishments such as revocation of the representative office’s registration certificate, banning of temporary activities, confiscation of illegal gains, and warning to the directly responsible persons.  (Id.)

The directly responsible persons of overseas NGOs may be held criminally liable for the activities of the overseas NGOs and their representative offices in China.  (Id. art. 47.)  For the following offenses, if the situation is deemed not serious enough to be criminally punished, the directly responsible persons may still be detained for up to 15 days in accordance with the Law: (1) “instigating resistance to the implementation of laws or regulations”; (2) stealing state secrets; (3) spreading rumors or other harmful information that endangers national security or harms national interests; or (4) engaging in or sponsoring any political activities or illegally engaging in or sponsoring religious activities.