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Abstract摘要
中国的非营利组织在提供政府限制的服务方面发挥着非常重要的作用。“分级登记”、“双重管理”和竞业禁止规则制约了其发展。一些非营利组织寻求注册为营利性企业，其他选择作为私人和未注册组织生活。随着人们越来越认识到这一领域的重要性，以及奥运会和四川地震的推动，政府在各个层面上采取了“不接触、不承认、不禁止”的态度。改善非营利组织的内部治理是另一种解决筹资问题、职责不明确和人员缺乏的方式。AIESEC的案例展示了一个独立的实体如何在其工作、可持续性或决策中赢得自治权。与我国高校大多数以团委为首的挂靠型非营利组织相比。可以预见，准政府间的广泛合作、宽松的约束、管制政策的转变、协助非营利组织的内部治理，将为非营利组织的进一步发展奠定坚实的基础，也有利于我国经济的发展。从长远来看，社会发展。
China’s Non-profit Organizations (NPO) play a very critical role in providing the services where government limits. The “graded registration”, “dual management”, and the non-competition rule restrict its developing. Some NPOs seeks to registered as a for profit enterprise, other choose to living as private and unregistered organizations. The increasing awareness of rising importance of this sector and the push of the Olympic Games and the Sichuang Earthquake made the government adopted a so called “no contact, no recognition, and no prohibiting” attitude on every level. improving the NPO’s internal governance is another way to deal with the problem of fund-raising, unclear responsibilities, and staff lacking. The case of AIESEC shows how an independent entity wins the autonomous in its work, sustainability or decisions. Comparing to Most of the non-profit organizations in Chinese university who are of affiliation-type and lead by the Youth League Committees. It can be predicted the widely cooperation in the quasi-governmental, the loosen restriction, the change of regulation policy, and the assisting in NPO’s internal governance would set a solid foundation for the further development of non-profit organizations and also benefit china’s economic and social development in the long run.
1.Introduction引言
教育、文化修养、扶贫是非营利组织发挥重要作用的传统领域，在公共服务落后、企业不感兴趣的社会服务中也做出了良好的贡献。北京奥运会、四川大地震、非营利性组织的发展都取得了巨大的推动作用，不仅使社会保障领域更加丰富，而且使社会保障领域更加多元化。ELF的自由、领导能力等，也增加了其结构模式，不仅可以分为SOS、CNIS、基金和民营非营利组织。SOS是指中国公民自愿组成的组织，其目的是根据中国公民的身份开展非营利活动，实现共同目的。中国互联网络是指利用非国有资产，由企业、事业单位、社会团体、其他社会力量或者公民个人经营，开展公益性社会服务活动的社会实体。基金会是指利用自然人、法人或者其他组织捐赠的资产从事公益事业的非营利法人。
Education, culture cultivation, anti-poverty are the traditional area where Nonprofit Organization plays a important role ,it also make sound contribution in fulfilling the social services where public services left behind and the businesses felt uninterested .with the rapid economic development ,the increasing demands ,China’s landmark reform and several standout achievement gained in Peking Olympic Games ，the Sichuan Earthquake, the development of Nonprofit Organization gets a lot of pushing .thus it becomes more diversity, not only the fields it plays gets enrich to social security ,self-freedom, leadership and so on, but also the model of its structure increased ,can not only be divided into SOs, CNIs, Funds and private Nonprofit Organization. SOs are defined as organizations voluntarily formed by Chinese citizens in order to realize a common intention by developing nonprofit activities in accordance with their statues. CNIs are defined as social entities carrying out social service activities of a nonprofit nature, which are run by enterprises, institutional work units, social organizations, other social forces, or individual citizens using non-state assets. While the foundation refers as nonprofit legal persons, which utilize assets donated by natural or legal persons or other organizations to pursue a public benefit purpose.
In western countries, NPOs are defined as organizations that have five characteristics: “formal”, “nongovernmental”, “nonprofit,” “self-governing” and “voluntary”. The “formal”, carefully describe the necessities for the government to carry out regulations, laws and give them legal status. “nongovernmental” highlights the dependence of its entity. While “nonprofit,” “self-governing” and “voluntary” mostly emphasizes the difficulty of a Nonprofit Organization may face to make their goals achieved without profit contribution, manage a great number of volunteers instead of paid staff. The legal definition first came in the “Accounting System of Nonprofit organizations” which was promulgated by the Ministry of Finance in 2004. The NPO system include three types, social organizations, civil non-business institutions and foundations. The regulations provide three vital characteristics of NPOs, not for profit purposes, “resource providers” making investments are not allowed to receive an economic return, “resource providers” do not enjoy ownership of NPOs. In fact, Chinese literature explains the essence of “nonprofit” to be the “nonprofit distribution” rather than prohibiting NPOs from “making money”.
to some extent, the college students constitute the majority of those volunteer and provide most services in the Nonprofit Organization. It is been found 59.7% of the college students took part in the college associations, according to the survey conducted by the National Communist Youth League Committee and China Youth & Children Research Center in 2005. It equals every one student joins in 1.8 student associations. According to the most up-to-date statistics, by January 2008, there are 3506 student associations in universities located in Beijing and 27900 registered student members.
Since there is little difference between the governance of Nonprofit Organization in Chinese University and other Nonprofit Organizations, this paper explores the overall regulations on the same sector while giving a detail study of AIESEC .
Similar to their Western counterparts, China’s NPOs grew to fill a function that is left blank by the government as well as the businesses. For a long time, China’s NPOs struggled to expand their activity domain in spite of the lacking of legal status or legal personality. The relaxed governmental control in certain areas coupled with the bottom up efforts drove the progress of China’s NPO development. Although no definition of NPOs in China has been reached in the academic area or in the regulations of different period, civil organizations, social organizations, non-governmental, not-for-profit, NPOs, NGOs can be seen at the same time. Most of those organizations share the same idea of not for profit. In order to get a main idea of the governance and its changing, it is better to examining its history of developing.
2. The History of Nonprofit Organization in China
After the people’s republic of China has been established in 1949, the Chinese NPO suffered depression and slowed down gradually because of the tight control. The government investigated thoroughly the civil organizations, and got rid of the majority of charity organizations, associations, and religion organizations. Only a small number of those survived on the basis of eager to follow the guidance of the Chinese Communist party and obey to the NPO registration & management system. in 1950, Chinese Administrative Council drafted a regulation code called Temporary Registration and Management Rules for the Social Organizations. The activity domain has been strictly restricted and lots of administrative guidance lied on them. The statistics shows that between 1950 and 1965, there were only 100 nationwide social units, and 6000 local social organizations. due to the enacted of “the management rules for the city neighborhood councils” in 1954, The neighborhood council developed. But most of the big social organizations were became one department of the government, their staff got paid by the government, their task were assigned by the government. Although the neighborhood councils were defined as autonomous neighborhood organizations, in fact, the activities of these neighborhood councils have to follow the directions set by the Chinese Communist Party. Unsimilar to their western counterparts, China’s NPOs hardly reached a status known as “the third government”, nor did they in a position to promotion activities of their free choice. The social organizations literally disappeared.
In 1966 ,the Chinese Revolution has been started, the freedom of independent research and artisan creation got smaller .according to the statistics published in China statistics Yearbook,2007 ,the total number of social organizations declined from 6,100 to 0 in 3 years. Lacking of activities and functions made the social organizations non autonomous at all. They received directions from government, delivered and communicated the directions from government, and almost become the administrative organizations in the government. #p#分页标题#e#
The ‘open the door reform’ in the economic system started in 1978, together with the global democratization movement and socialization movement has a great effect on the governance of non-profit organization. Loosen the restrict regulations, and facilitate the autonomous development of non-profit organization by laws is advocated. For lack of single agency in manage, the authorities is given to different agencies in its own domain. the management comes to a messy inevitably. Thus almost all administrative agencies (such as the Ministry of Culture, National Sports Committee, National Science and Technology Council, China Science Academy, and public relationship department) got involved in managing the social organizations. the numbers of non-profit organization increased dramatically by contrast. the Tian’anmen square event in 1989 and the Fanglun Event in the beginning of 21 centuries shocked the government, in order to finish the messy registration system and set up a dual-management principles over the non-profit organization and its activities, several laws were passed, such as “Management rules for the foundations”, “registration and management rules for social organizations”, the civil administration department gradually became the only agency who in charge of the registration job and plays the management role. Several measures were taken to get a through investigation into non-profit organization and many of them were asked to register again. The number of nationwide social organizations deceased from 181,318 in 1997 to 153,322 in 2001. It was during this period, “the registration and management rules for non-profit organizations” “management rules for the foundations” were passed. A steady foundation of legal status and support has been gained as to the non-profit organization.
Two good signal shows the Chinese government‘s awareness of importance of non-profit organizations for its volunteers, activities and charitable donation. First, since 2002, the government’s attitudes toward NPO changed from tradition administration, which was vertical rigid management, to complete the institutional development aiming at assisting NPOs’ internal governance, augmenting their capabilities, and further promoting the overall growth of China’s NPOs. Second, owning to the great success of volunteer gathered, aid provided, money donated in the series earthquakes in Sichuan. The quick response of non-profit organization was taken soon, By the end of May of 2008, the total amount reached 40 billion Yuan. Red Cross Society of China emergency teams have launched a major operation to help survivors of a 7.0 magnitude earthquake in an area of southwestern China’s Sichuan Province. the government and non-profit organizations started cooperation in types of services been bought by the China Red Cross Association, which is a quasi-governmental sector. The diverse needs of the social-market economy, together with the strong support of laws and government, lots of non-profit organizations develop quickly. Their domains cover almost in every aspect of social life, such as education, culture, science and technology, charity in tradition way, and anti-poverty, environment protection, neighborhood service of the new trends. According to statistics from the national civil administration department, by the end of 2008, there are approximately 41, 3000 civil organizations, including 22, 9000 social organizations, 18, 2000 private non-for-profit enterprises, and 1597 foundations.
3. Regulations and supervision on Nonprofit Organization in China
There are many laws and regulations on Nonprofit Organization in the different period of china. In 1950, Chinese Administrative Council drafted the first code on social Organization which named Temporary Registration and Management Rules for the Social Organizations. The main function of this law is to categorized the types of social Organizations and highlights the importance of following the guidance of Chinese communist party. Due to government regulations, administrative guidance, the Chinese social organizations gradually developed into organizations that resembled the administrative organizations in government.
Around the year of 1990s, the enacting of several regulations slowly vanished the blank of legal status, registration of Nonprofit Organization, and put an introduction of the CNI. In 1988, “Management rules for the foundations” were passed. “the registration and management rules for social organizations” were amended and “the registration and management rules for non-profit organizations” was passed in ten years later. In 2004, “Management rules for the foundations” were revised, it refers a higher minimum capital requirement, a complex structure, and duties of accounting, disclosure, and the requirement of timely disbursement. thus the non-profit organization came to formalized within the legal system, and the civil administration department in charging of the registration start to be clear.
As to the governance of non-profit organization, it can be divided into establishment, activities management, financial resources. The “graded registration”, “dual management”, and the non-competition rule should be strictly obeyed during the establishment of these non-profit organization, it can be registered at the national agency or the local social agency which depends on the district whether has been acrossed. The nationwide NPOs need to register at the national civil administration department, and are managed by the national department and the agencies authorized by the central government. But Most NPOs are choose not to register on the national level, but in the department on civil affairs in the local area. Registration itself has to be conducted on the national level with the MoCA or with the corresponding departments for civil affairs on the level of provinces, autonomous region, and directly administered municipality. the “dual management” refers to a sponsor organization should be involved in the process of registration and winding up, it is a unique feature of NPO supervision. In the approval procedure, the dual management system is manifest in that prior to the filing of the actual establishment application with the competent registration and administrative authority. the motion of the board of directors (or the standing board of directors) for winding up the SO must be adopted by the membership meeting (or the standing committee of the membership meeting) and needs the consent of the sponsoring organization. the non-competition rule is set to avoid the waste of labor ,money resources and it refers to none organizations can be allowed to register, if they have the same or similar functions in the same administrative district. By “the same functions,” it means that the name, mission, and functions of the NPOs are the same or very close. By “the similar functions,” it means that although the two NPOs have different names and different composition of staff members, the functions cover the same domain.
To organize the activities and management of non-profit organization, it should be carefully reviewed to make sure rules, regulations and laws be followed on the activities, changes, and termination. The “dual management” requires that the main duties of the corresponding administrative agency include: (1) reviewing the applications for the establishment of NPOs, reviewing for the changes to the registration and the termination registration; (2) providing guidance for all kinds of activities for the NPOs, such as the finance management and personnel management, the international communications, receiving donations from abroad, etc; (3) monitoring the functions of the NPOs to assure that the NPOs function well and obey the rules, regulations, and laws; (4) conducting the preliminary reviewing for the annual check; (5) assisting with the registration agency and other agencies to deal with the illegal cases; (6) providing guidance for the liquidation.
Since the complex registration process and not easy to find a sponsor organization to carrying out the process, there is a large number of unregistered NPOs according to the survey works of Chinese researchers.
Besides all the legislation enacted by the legislators and government, several model statutes concerning SOs, CNIs and foundations and specifying the detail requirements of the regulations were issued by MoCA to improving the internal organization structure of NPOs. Although these model statutes are not automatically binding, they are important in practice because it is supposed that the approval for the establishment of the respective NPO will not be granted if the requirements of the model statutes have not been fulfilled.
Moreover, due to the restraint on the establishment of funding with a minimum registered capital requires, it is quite difficult for the non-profit organization to attract funding. The dilemma goes harsh, because Neither do they have governmental funding, nor can they get private donations due to lack of trust, even though the love and dedication of Chinese citizens arised .
We can’t deny that, non-profit organization plays a critical role in the area where both government and market fail. the strict regulation of china does not match society’s needs, and the constrains can’t detect or correct the misconduct from the outside for such regulating tends to be small and under-sourced.
4. The Internal Governance of Nonprofit Organization
Since it is very hard to get funding, Nonprofit Organization should learn to utilize the profits and manage effectively. A way to improving its internal governance is of importance to deal with the problem of fund-raising, unclear responsibilities, and staff lacking.#p#分页标题#e#
although for-profit and non-profit Organization share lots of legal precepts, for example，its corporate charter set forth the power to control and oversee the management ,they distinguishes by the former do have owners and looking for profit contribution, while nonprofit have missions instead of owners or shareholders. in the absence of supervision of investors, the role of internal governance seems more necessary. Despite the common ancestry and legal underpinnings, nonprofit corporate governance places heightened demands on trustees: a larger mix of stakeholders, a more complex economic model, and a lack of external accountability.
Of all kinds of organizations, good internal governance starts with the board of directors. it is a good way to ensure self-direct significant allocations of power, management of the organization ,their own corporate governance and operational policies ,its mission has been followed and fulfilled. Although is hard to lift the unfavorable institutional and resource environment, the independence of the board is important which is still have a long way to go in china. In spite of the great success in absorbing large amounts of funding, carrying out of various kinds of charity activities by “one foundation” which was initiated by the famous star, Jet Li. It does not have autonomous in personnel administration and daily operations. It should be supervised by the Red Cross.
Actually, there is another choice for some non-profit organization to survive when facing the “dual management” and the high standard of registration. They choose to live as unregistered organizations and remain to provide services for the increasing needs of the citizens. Considering the risks in manage, the additional workload, and the trends of loosen its restraint, the government take the attitude of tolerate it.
This type of NPOs (such as the neighborhood entertainment community, the senior citizen university, the senior citizen associations, the homeowner association, the religion association) raise funding on their own and live in a very flexible format . The virtual communities in the internet started to gathering internet users to help each other. It is a challenge posed to the Chinese government , to balance the strong willing in influencing the procedure for establishing and in day-to-day operation of NPOs with the allowing of private assets and human resources for public benificaries.
5. The Governance model of AIESEC
Owing to the developing of internet, the globe communication in economic, culture, education etc. many of those attained funding from the international foundations or became part of the non-profit organizations abroad. The governance of Chinese-foreign cooperation in the field of education, which is established in the form of a (legal person or non-legal person) CNI, is subject to a special set of regulations.
Comparing to getting affiliated with the existing registered non-profit organization and becoming part of it, Most of the non-profit organizations in Chinese university are of affiliation-type. They are not register as a legal entity. Those college student associations are led by and report to the Youth League Committees. In fact, there is no clear distinguish between the internal governance and external government supervision, the sponsor organization worked effectively in both ways. On the one hand, the sponsor organization has certain rights concerning the appointment and dismissal in the board of directors and the supervisory board in foundations and in the CNIs as legal persons. On the other hand, along with the registration and administrative authorities, the sponsor organization is involved in state supervision of the establishment and operation of the NPO.
AIESEC is a global platform for young people to explore and develop their leadership potential. in order to encourage the young leaders under the age of 30 to be a better one, they organize the global network and provide the communities around them. It is a non-political, independent, not-for-profit organization run by students and recent graduates of institutions of higher education. Its members should passionate about world issues, leadership and management development, cultural understanding and experiential learning.
AIESEC was founded in 1948 in 7 countries in Europe by Jean Choplin (France), Bengt Sjøstrand (Sweden), and Dr. Albert Kaltenthaler (Germany). The whole members shared the principle “by young people, for young people”. AIESEC expanded quickly in Over 65 years, nearly later in 126 countries and territories has its branches, china included.
AIESEC does not have a pre-defined or officially accepted political tendency or subscription. They are in consultative status with the United Nations Economic and Social Council (ECOSOC), affiliated with the UN DPI, member of ICMYO, and is recognised by UNESCO.
For it gains the great independence, AIESEC exists as a non-subsidiary or independent entity of any other bodies, so it wins the autonomous in its work, sustainability or decisions. As to the governance of AIESEC, every aspect of AIESEC’s operations are managed by students and recent graduates and The global leadership teams are elected by the membership annually.
5. Conclusion
On one hand, The increased regulation of NPOs on its fundraising foundations, regional restrictions shows the Chinese legislators has an awareness of rising importance of this sector .on the other hand, the numerous of unregistered NPOs being tolerated, the so called “no contact, no recognition, and no prohibiting” attitude on every level. the AIESEC foresaid providing services and organizing activities where public services is lacking also shows the general skepticism toward privately initiated non-profit organization. From a comparative law perspective, the unusually complex governance of foundations and CNIs as legal persons is especially remarkable. It becomes obvious that those Chinese regulations are by their nature suitable only to large NPOs. The skepticism and such unsuitable should be seen in the context of the Chinese political system, which is still based on a centralized socialist party dictatorship with a cadre party organized according to Leninist principles and exercising effectively unlimited decision-making and intervention powers in politics, administration, the economy, and society. Many researchers on the Public Policy and Management hold the requirement for the consent of a sponsor organization made approximately 3 million NPOs, only 320,000 are registered. Some were registered with the State Administration for Industry and Commerce as for profit enterprises, because potential sponsor organizations reluctant to “invite trouble”, refused to act as a sponsor organization. A three-stage procedure for establishing NPOs were suggested to get rid of the involvement of sponsor organization. In the first stage, NPOs would simply have to file the establishment of the NPO with the competent state authority without the need for any approval, in the second stage, NPOs with larger expenditures for activities and more employees would have to go through a registration and licensing procedure, In the last stage, NPOs that wanted to conduct charity solicitation would have to be recognized as “public benefit” and granted the right to raise funds. It is a more suitable way for the non-profit organizations to provide services that the government fails to match the society’s society when taking the gap between the rich and the poor enlarged background into consideration. It can be predicted the cooperation in the quasi-governmental, the loosen restriction, the change of regulation policy, and the assisting in NPO’s internal governance would set a solid foundation for the further development of non-profit organizations and also benefit china’s economic and social development in the long run.
References
Hippel/pibler,China,in:Richter/Wachter(eds.),Handbuch des internationalen stititngsrechts(2007),p.699 et seq.
Lesley Rosenthal, Nonprofit Corporate Governance: The Board’s Role, in: Lincoln Center for the performing Arts(2012).
Kaur, The third sector: The law in China and Non-profit organizations, in: International Journal of civil society law, Vol.4(2006),Issue 3,p.47 et seq.
Salamon, L.M. (1999), Global Civil Society, The Johns Hopkins University Press
Yang daobo, On Tax law regarding donations to Nonproft organizations, in: Journal of southwest university for political sciences and law, Vol.9(2007),No.3,p.73 et seq.
Li(ed.),Freedom of association in China and Euope(2005),p.17 et seq.
Zhongze Wu &Jinluo Chen (1996), Managing social groups, China Society Press, Beijing.
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