Changes to the Charity Law will be reviewed again next week. On December 22 this year, the spokesperson of the Legislative Affairs Commission of the Standing Committee of the National People's Congress revealed at a press conference that the main revisions to the draft revision decision include improving the provisions on cooperation in carrying out public fundraising, and clarifying that online service platforms for individual help must be designated by the civil affairs department of the State Council.
The Charity Law has been in the process of being amended since it was implemented more than six years ago in 2016, but in the second review in October this year, the "major overhaul" was changed to "minor repair", and the increase and revision was halved. The reason for the amendment is related to the social controversy that has occurred in the charity industry in recent years, such as the chaos of individual mutual fundraising platforms such as Water Drop Chip and Easy Fundraising that broke out through the Internet, as well as a series of problems in the fundraising of individuals for serious illnesses by foundations. In September and October of this year alone, there were a number of controversial incidents, such as the "local person in charge" of the 9958 project of the Children's Charity Association taking away tens of millions of life-saving money, and the draft decision was revised in response to this.
How to prevent the risk of malignant incidents, how to regulate individual requests for help, how to improve the supervision mechanism of the whole chain? Red Star News reporters interviewed a number of scholars, lawyers, and secretaries-general of front-line foundations to discuss the direction of the revision of the Charity Law.
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"Compromise" in the scope of regulation
It is proposed to strictly regulate the obligations of individuals seeking help from online service platforms
Personal serious illness relief is a focus area in which the charity industry has been repeatedly involved in turmoil in recent years. The most striking aspect of the amendment is that it intends to fill the gap in the rule of law for online individuals seeking help, including individual requests for help and online platforms for the first time in the norms of the Charity Law, and authorizing the competent authorities to formulate relevant policies.
Personal solicitation is distinguished from charitable fundraising and illegal personal fundraising. Jin Jinping, director of the Non-Profit Organization Law Research Center of Peking University Law School, told Red Star News that in addition to the different initiators, the two acts have different purposes.
According to China Youth Daily, during the deliberation of the draft Charity Law in 2016, the Law Committee of the 12th National People's Congress said that personal requests for help are not charitable activities and are not subject to the adjustment of the Charity Law. On the other hand, a number of experts pointed out to Red Star News that the relevant provisions of the gift contract and the criminal law in the Civil Code are applicable to individual requests for help.
At the same time, Article 110 of the Supplementary Provisions of the current Charity Law provides a legal basis for individuals to seek help and carry out mass mutual aid and mutual aid activities within a certain scope. On December 22 this year, the Legislative Affairs Committee of the Standing Committee of the National People's Congress said at a press conference that in recent years, with the development of network information technology, the phenomenon of personal online help has been increasing, beyond the specific scope of communities and units. The relevant network service platforms have shown large-scale development, and there are some chaotic phenomena, which have aroused public doubts and negative public opinion, and have had a negative impact on the credibility of the entire industry and even the development of philanthropy.
In this regard, Jia Xijin, associate professor of the School of Public Policy and Management of Tsinghua University and deputy dean of the Institute of Public Welfare and Philanthropy, told Red Star News that personal help is not for public welfare purposes, and it is now proposed to add a special article in the supplementary provisions in order to respond to practical problems and reiterate the general civil law responsibility. Some experts also told Red Star News that adding to the supplementary provisions is a "compromise".
Falsification of medical records, fabrication of family conditions...... All kinds of "fraudulent donations" have always plagued individuals on the Internet for help. The reasonableness of personal recourse is also often questioned. In October this year, a 2-year-old girl in Chengdu was bitten by a Rottweiler, and the family launched a fundraising of 2 million yuan on the easy fundraising platform, which was reached in more than 5 hours, but the girl's family quickly fell into a dispute over the amount of assistance and the use of funds, and the full amount of the donation was returned to the original way.
In 2018, under the guidance of the Ministry of Civil Affairs, the three major platforms of Love Chip, Easy Chip and Water Drop Chip issued a proposal and a self-discipline convention. In 2020, it will be upgraded again, including strengthening information review, information disclosure, and fund supervision, and restricting employees and partners.
According to the press conference on December 22 this year, on the one hand, the draft proposes to require that the help-seeker and the person who publishes the information should be responsible for the authenticity of the information, and must not defraud the rescue by fabricating or concealing the facts. This principle is clarified in the Measures for the Administration of Public Fundraising Platform Services issued by the Ministry of Civil Affairs and four other ministries and commissions, which came into effect at the same time as the Charity Law in September 2016.
On the other hand, it is clarified that platforms engaged in online services for individuals seeking help shall be designated by the civil affairs department of the State Council to conduct a verification of the veracity of the information on seeking help released through them. In addition, with regard to online requests for help, it is proposed to clarify that platforms engaged in online services for individuals seeking help shall conduct a verification of the authenticity of the information on requests for help released through them. At the same time, it is proposed to authorize the civil affairs department of the State Council to formulate specific management measures in conjunction with the departments of internet information, industry and information technology.
The direction of strict supervision embodied in this way is in line with the amendment suggestions put forward by many experts in an interview with Red Star News. According to the revision proposal report jointly submitted to the National People's Congress by the Beijing Foundation Evergreen Social Organization Service Center, the China Association for the Promotion of Social Organizations, and the Zhongzhi Social Development Promotion Center, it is difficult for the public to distinguish the difference between the act of giving and public fundraising, and there is no need to force it. It should also be optimized by strengthening the responsibility requirements of the entities that can be managed, and the online platform for personal help as a commercial entity should not be outside the law.
In the Draft Amendment, the term "network service provider" is changed to "online service platform for personal help", but it is not clear what an "online service platform for personal help" is. In this regard, Cui Lanxin, secretary general of Beijing Chunmiao Charity Foundation, suggested that the platform can be divided into two types, such as easy chips and water drop chips, which need to have the obligation to check the authenticity of information. Platforms that do not charge fees, such as Moments, personal Weibo, and Xiaohongshu, can be done in accordance with the relevant regulations of the Ministry of Industry and Information Technology on the management of online platforms.
It was also proposed to further increase the obligations of the platform. The above-mentioned three institutions revise the recommendation report and suggest that the online service platform for individual help should not only bear the obligation to verify the authenticity of the information for help, but also clarify the obligation to disclose the information.
But Jia Xijin believes that the responsibility requirements for the platform are excessive. "The ultimate responsible entity for any act must only be the actor, and the platform can bear formal responsibility, as well as clarify the responsibility of the actor through the contract, but the substantive responsibility for the authenticity must only be the actor itself. How can the platform ensure authenticity? There is no justification to ask it to be responsible, similar to the responsibility of Taobao platforms and stores. She believes that the responsibility of the platform should be clearly defined as a formal review, such as requesting information, proof, etc., and the final authenticity of the information can only be the responsibility of the help-seeker and the information publisher themselves.
Jia Xijin agreed that the obligations of platforms should be changed from "review" to "inspection" in the revised draft, but he believes that "authenticity verification" still needs to be explained, and what kind of responsibility the platform bears for authenticity.
Experts recommend clarifying the definition of public welfare:
Avoid charitable organizations soliciting donations for specific individuals
The difference between personal help and charitable fundraising also involves the issue of beneficiaries. Many charitable organizations have launched fundraisers for personal serious illness relief. Jin Jinping and Jia Xijin previously said in an interview with Red Star News about the Children's Charity Association incident that charitable organizations violated the principle of public welfare by initiating fundraising activities for specific individuals. For this amendment, they further suggested clarifying the definition of public welfare. Jin Jinping pointed out that the crux of many problems in the field of charity is that the current charity law does not have a clear definition of public welfare, which makes public welfare fundraising risk of evolving into illegal fundraising.
This September's incident is not the first time that the 9958 project has been an accident. In the Wu Huayan incident in 2020, 9958 was questioned about more than 1 million yuan of donations, and the patients did not know about it, and only allocated 20,000 yuan. From the Wang Fengya incident in 2018 to the scandal of the Xi'an Good Deeds Public Welfare Charity Foundation in 2022, charities in personal serious illness relief are full of chaos.
Jia Xijin believes that the charity law and regulation should be aimed at public welfare purposes. However, the current law does not clearly define the public welfare of charity, so there will be ambiguity about the fundraising of specific individuals. Her point is that the public good, that is, for the benefit of an unspecified number of people. Therefore, philanthropy always sets up projects guided by vision, mission and values, and the beneficiaries cannot be predetermined as specific individuals when the project is established. "Charity law uses many concepts, and we should go back to the definition of the meta-concept of charitable purpose and clearly define its public interest attributes. ”
But legislators have embodied the principle of unspecified individuals in their wording. In an interview with the People's Daily, Kan Ke, deputy head of the Bills Group of the Secretariat of the Fourth Session of the 12th National People's Congress, which passed the Charity Law, said that the Charity Law does not have a clear definition of charity. According to Article 8 of the Law, the beneficiaries of charitable activities carried out by charitable organizations are "society". The four words "socially oriented" are deliberately added and have specific meanings: to transform the academic term "unspecified majority of people" into legal language "socially oriented". Charitable organizations are to provide assistance to an unspecified number of people in accordance with their charter and purpose, and must not be affiliated.
As early as 2001, the Interpretation of the Public Welfare Donation Law also pointed out that public welfare undertakings require their beneficiaries to be unspecified individuals or groups of people. That is, the beneficiary cannot be a closed group or group of people, the beneficiary should be a universal and open concept, and all eligible people can become beneficiaries.
But the idea has always been controversial, including the voices of front-line foundations. Liu Zhengchen, secretary-general of Beijing New Sunshine Charity Foundation, previously said in an interview with Red Star News that there is no essential difference between the specific patients selected by charitable organizations to raise donations and the patients selected from the fund pool directly funded.
The amendment to the Charity Law is intended to be strengthened
The management responsibilities of public charitable organizations for their partners
The amendment intends to strengthen the main responsibility of charitable organizations with public fundraising qualifications when sharing public fundraising rights.
In the incident of the Children's Charity Association in September this year, the true identity of Ke Mouxiao, the "person in charge of Langfang" of the 9958 project of the Children's Charity Association, who was suspected of taking away tens of millions of life-saving money, and the nature of the 9958 local team have attracted great attention, and the 9958 local team has been accused of violating the rules many times. Sun Dandan, director of the communication department of the platform of the China Children's Charity Association, said in an interview with Red Star News that the Children's Charity Association chose a local private non-enterprise organization to cooperate in setting up aid stations in many places, but the aid station only uses the 9958 brand, which is only a partner organization, and the operation and management of the aid station is responsible for the local cooperative agency.
The mainland has strict examination and approval of charitable organizations' public offering qualifications, and the number of charitable organizations with public offering qualifications is far smaller than the number of social organizations engaged in related activities. Article 26 of the Charity Law stipulates that organizations or individuals that do not have public fundraising credentials may, for charitable purposes, cooperate with charitable organizations with public fundraising credentials, and the charitable organization will carry out public fundraising and manage the funds and materials raised. This is often referred to in the industry as "sharing public fundraising" or "cooperative fundraising". In the information display of fundraising projects on online platforms, the two are usually embodied as "implementing agencies" and "collection agencies".
He Guoke, a lawyer at Beijing Zhicheng Law Firm, once pointed out to Red Star News that the public offering institutions themselves have limited strength, and if they pursue the amount of financing one-sidedly, they will cooperate with a large number of "franchisees" and share the public offering rights on a large scale, but they are not as good as easy fundraising, water drop chips and other commercial entities have enough management resources, which creates the basis for fraud and the space for rent-seeking.
Jin Jinping believes that the large-scale sharing of public fundraising rights by public foundations is a major hidden danger in the next step of concentrated events in the charity field. "Some people advocate that it should be just shut down, but I say no. Jin Jinping said that Article 26 of the Charity Law was established with very good considerations, opening up a path for organizations and individuals who do not have public fundraising qualifications. She believes that the problem lies in the fact that in practice, charitable organizations with public fundraising qualifications mistakenly believe that they only provide a channel and do not have a strong sense of responsibility, so Jin Jinping agrees to strengthen the main responsibility of charitable organizations with public fundraising qualifications when sharing public fundraising rights.
Article 26 of the revised law proposes to add a paragraph: Charitable organizations shall conduct an assessment of their partners, and indicate relevant information on their partners in their fundraising plans. In the "Legal Liability" section, there are also proposed penalties for failure to assess the partner or to include relevant information. It is understood that the revised draft decision also adds the requirement of "signing a written agreement" and "guiding and supervising the relevant behaviors of the partners, and conducting financial accounting and management of the funds and materials raised through cooperation". This latest amendment apparently incorporates the provisions of Article 17 of the Measures for the Administration of Public Fundraising by Charitable Organizations, a civil affairs department regulation that came into effect at the same time as the Charity Law in September 2016.
However, as for the downward pressure of responsibility, the charity organization said that "there is a lot of pressure". A number of front-line public foundations told Red Star News that when public offering institutions share public offering rights, they have few rights and interests, and their obligations and responsibilities are too heavy. A deputy secretary-general said that the law does not have the corresponding supporting support, or it can join the power of the executive department to jointly manage and share the public fundraising rights with public fundraising charitable organizations, for example, cooperation and public fundraising projects must go to "Charity China" to apply for filing.
With regard to the long-term weak credibility of charitable organizations, there are many other ways in strengthening supervision and information transparency. In the two chapters of "supervision and management" and "legal liability", the draft refines and strengthens the responsibilities of all parties. For example, the wording "detailed" disclosure is added for information disclosure on the implementation of public fundraising activities or charitable projects by publicly offered charitable organizations.
There are experts who recommend:
Introduce a public interest litigation system for procuratorial organs
The 2020 Charity Law Enforcement Inspection Report pointed out that underregulation and overregulation coexist.
He Guoke has been calling for more regulatory methods and innovations in the philanthropic sector to improve the overall supervision mechanism. He said that at present, the competent authority in the entire field of charity is the civil affairs department, but the civil affairs department's management of all things is not scientific and unreasonable. Civil affairs department staff may lack relevant professional field knowledge, and it is difficult for them to manage, serve, and guide.
At the same time, He Guoke pointed out that the supervision means of the civil affairs department are limited, and in many cases there are only non-punitive measures, even if the violation of laws and regulations has seriously infringed on the public interest, it may only be ordered to correct, and the social effect is even more limited. A number of interviewees suggested that for the violation of the law by relevant entities and the victimization of relevant entities, the connection between the corresponding measures of other administrative departments in the entire regulatory chain should be further clarified, and the means of judicial protection should be clarified.
The amendment intends to clarify the responsibilities of various departments such as industry and information technology, public security, national security, finance, taxation, auditing, internet information, financial supervision, education, science and technology, culture, health, sports, emergency management, ecology and environment, and medical security.
According to the Rule of Law Daily, on October 22 this year, when the Standing Committee of the National People's Congress deliberated on the draft amendment to the Charity Law, a number of members suggested the introduction of a public interest litigation system for the procuratorate, citing the fact that the current Charity Law stipulates a relative principle for the rights of donors and the relevant provisions for the protection of rights are insufficient.
He Guoke pointed out that charitable property is social public property, and a large amount of charitable property comes from donations from the public. The field of charity is a typical gathering place for public interests, and major events in the field of charity can also arouse widespread public attention. This provides a legal basis for public interest litigation to intervene in the field of charity. At the same time, a large number of Internet donations are small and individual, and individuals lack motivation to protect their rights.
There was no shortage of opposition to the proposal. Some people in the industry believe that charitable organizations will be in a relatively weak state in many cases, and public interest litigation may be exploited by others, and will not play a role in protecting the subject of charity or protecting the culture of charity, but will be negative and destructive. There are also voices that the previously established public interest litigation system has undergone a long period of special research and piloting, and the current time may not be ripe enough.
Red Star News reporter Hu Yiwen reports from Beijing
Editor: Peng Jiang Editor: Deng Minguang
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