China: Brief Comments On The Guidelines For Registration Of Representative Institutions And Record-Filing Of Temporary Activities Of Overseas Non-Governmental Organizations

Last Updated: 18 January 2017
Article by Jiangang Sun, Xinjie Li and Kan Chen

The Ministry of Public Security of the People's Republic of China(the "PRC") published the Guidelines for Registration of Representative Institutions of Overseas Non-Governmental Organizations and Record-Filing of Temporary Activities (the "Guidelines") on its website on November 28, 2016, which is the first supporting set of regulations after the promulgation of the Law of the People's Republic of China on the Management of Activities of Overseas Non-Governmental Organizations within the Territory of China(the "NGO Management Law").  The Guidelines follow the principles and provisions of the NGO Management Law, and build upon the registration and filing system, including specifying the processes and application documents, providing some standard forms of application documents, etc. (see discussions in Part I for details).That being said, the Guidelines are not clear enough on certain points , for implementing the NGO Management Law and guiding overseas non-governmental organizations (the "Overseas NGOs") to make draw any premature conclusions (see discussions in Part II for details).

Part I: Elaborations and Highlights

The Guidelines aim to elaborate the requirements, procedures and documents in relation to the registration of a representative office and the record-filing of temporary activities of Overseas NGOs in the PRC, which may be summarized as follows, mainly:

1. The Guidelines specify the procedures and the required documents for setting up a representative office of an Overseas NGO in the PRC. An Overseas NGO shall first acquire the approval of its professional supervisory authority before it registers the PRC representative office with a competent registration authority. In addition, the registration authority reserves its power to assemble a panel of experts to conduct further assessment before approving the registration.

2. The Guidelines provide for a supervisory model of "record-filing beforehand and reporting afterwards".

(1) For a representative office of an overseas NGO, it shall submit its activities plan every year before December 31for the following year to its professional supervisory authority, and after obtaining the approval of its professional supervisory authority, it shall then submit the same materials to the registration authority.  In addition, a representative office shall submit its summary report of completed activities every year before January 31 for the previous year to its professional supervisory authority, and after the approval of its professional supervisory authority, it shall then submit the same materials to the registration authority.

(2) For the record-filing of temporary activities, an overseas NGO shall conduct record-filing with the registration authority via its Chinese partner fifteen (15) days before the proposed temporary activities, and shall submit its summary report of completed activities, including the use of funds and other important information, to the registration authority within thirty (30) days after the conclusion of the temporary activities.

3. It is confirmed that the Overseas NGO management offices under public security authorities of the provincial people's governments will serve as the registration authorities for the representative offices and the temporary activities of Overseas NGOs.  In Shanghai, for example, according to news reports, it is likely that the Overseas NGO management office will be set up at the office venue of the Exit-Entry Administration Bureau of Shanghai Public Security Bureau.

4. The Guidelines make it clear that representative offices of Overseas NGOs may conduct trans-provincial activities, provided that the regions where their activities are carried out shall be consistent with their registrations.  Meanwhile, the Guidelines also allow an Overseas NGO to set up two or more representative offices in the PRC, provided that the regions covered by each representative office shall not overlap.

5. Under the Guidelines, if a representative office of an Overseas NGO carries out activities in multiple areas, it is not required to obtain

approvals from the professional supervisory authority for each area, and it is permissible to make a single application at the professional supervisory authority covering its main activity area.

6. The Guidelines authorizes provincial NGO management offices to formulate provincial Guidelines in accordance with local practices.  At the same time, the Overseas NGO management office of Ministry of Public Security released its hotline (010-58186465 and 010-58186464) for answering public consultations.

Part II: Points to be clarified

Despite the elaborations and highlights mentioned above, certain content of the NGO Management Law and the Guidance still appear to be ambiguous, and may cause uncertainties in practice, for instance:

1. The Catalogue of Activity Areas and Projects and Catalogue of Professional Supervisory Authorities of Overseas Non-Governmental Organizations within the Territory of the PRC (2017) (the "Catalogue ") has not been promulgated.

The Guidelines make it clear that an Overseas NGO shall first apply for the approval of a professional supervisory authority in accordance with the Catalogue, based on its main activities, if the Overseas NGO wants to set up a representative office in the PRC. However, the Catalogue is still under discussion and has not been promulgated. Except for the general provisions under the NGO Management Law (i.e., Overseas NGOs may engage in activities for public benefit in areas such as economy, education, science, culture, health, sports, environmental protection, poverty, and disaster relief.), it is unknown how to define these activity areas, and what the corresponding professional supervisory authority would be. As 2016 comes to an end, some Overseas NGOs are considering making assumptions about whether their activities in the PRC are doable or consistent with the NGO Management Law, and some of them wish to communicate with their professional supervisory authorities in advance, to better prepare for their activities in the PRC in 2017. It seems that these Oversea NGOs may have to wait for the promulgation of the Catalogue.

2. Requirements for the track records of an Oversea NGO are not clear.

Both the NGO Management Law and the Guidelines require that an Overseas NGO have been established overseas for no less than two years and have conducted "substantial activities", if it wants to set up a representative office in the PRC. However, the NGO Management Law and the Guidelines are silent on the criteria of "substantial activities". As a result, for an Overseas NGO focusing on the PRC, it is not clear whether an Overseas NGO could satisfy the above requirement if it conducted substantial activities only within the PRC, or if after the NGO Management Law goes into effect, filings of temporary activities via the cooperation of Chinese partners in the PRC could satisfy the requirement of "substantial activities".

3. The supporting tax provisions need to be clarified.

The Guidelines require that a representative office of an Overseas NGO shall apply for tax registration after its establishment. But the Guidelines does not mention how a representative institution shall pay taxes, what kind of taxes it shall pay, what the tax rates are applicable, and whether the relevant provisions in relation to permanent representative institutions of foreign enterprises will apply, and for cooperating with an Chinese partner to conduct temporary activities by an Overseas NGO, whether such Overseas NGO shall pay taxes and whether its Chinese partner is required to withhold and collect taxes. It is very likely that after the NGO Management Law goes into effect, the PRC tax authorities may first levy taxes on the representative offices of Overseas NGOs in accordance with the provisions for permanent representative institutions of foreign enterprises. Based on the practices of representative offices of Overseas NGOs, the PRC tax authority may then gradually formulate specific provisions.

4. The approval documents for record-filing of temporary activities are not clear.

For record-filing of temporary activities of an Overseas NGO, the Guidelines require that its Chinese partner shall submit the "approval documents obtained by the Chinese partner" as one application document. According to our experience, such "approval documents obtained by the Chinese partner" may refer to (1) the establishment documents of the Chinese partner; and/or (2) the approval documents obtained by the Chinese partner in connection with the contemplated activities that an Overseas NGO and its Chinese partner intend to conduct jointly, subject to further explanation and clarification by the registration authorities.

5. The scope of exceptions is not clear.

(1) Both the NGO Management Law and the Guidelines indicate that overseas schools, hospitals, natural sciences and engineering technologies research institutes, or academic organizations wishing to engage in exchanges and cooperation with their counterparts in China shall follow the relevant PRC provisions and the NGO Management Law shall not apply. However, the NGO Management Law and the Guidelines do not specify the scope of "relevant provisions of the State". For instance, the scope of natural sciences and engineering technologies could be very broad, and the criteria for judgment may vary, which makes it difficult for an Overseas NGO to make assumptions about whether or not its activities in the PRC shall fall under the NGO

Management Law.

(2) It remains unclear whether it is legitimate and if so, what registrations are needed, for an Overseas NGO which wants to conduct activities which are not for public benefit.

6. The impact on existing representative offices of Overseas NGOs is not clear.

Before the promulgation of the NGO Management Law, certain Overseas NGOs have registered their representative offices with the Civil Affairs Departments, Administrations for Industry and Commerce, etc. in different legal forms. It remains unclear what these existing representative institutions shall do after the NGO Management Law and the Guidelines go into effect, and whether their existing registrations will continue to be valid.

In summary, although the Guidelines provide for many procedural details based on the NGO Management Law, there is not enough information to answer certain practical questions with respect to the registration of representative offices or filing of temporary activities. We hope that the upcoming Catalogue or the press conference held by relevant authorities will provide further answers and explanations. It is very likely that certain practical questions may be subject to ongoing review and corrections after the implementation of the NGO Management Law, the Guidelines and the Catalogue. We will continue to monitor this situation and update you with more information as it becomes available.

Download - Brief Comments On The Guidelines For Registration Of Representative Institutions And Record-Filing Of Temporary Activities Of Overseas Non-Governmental Organizations

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.