Règlementation provisoire pour l’enregistrement et la gestion des entreprises populaires non-commerciales.

Provisional Regulations for the Registration and Management of Popular non-enterprise work units

The State Council of the Peoples’ Republic of China, Order No. 251 The ‘Provisional regulations for the registration and management of popular non-enterprise work units’ was passed by the eighth plenum of the standing committee of the State Council on the 25th of September 1998. It is hereby promulgated. It takes effect from the day of promulgation.

Premier Zhu Rongji, 25th October 1998.

1 - General Principles

Article 1:

These regulations have been drawn up in order to standardise the registration and management of popular non-enterprise work units, to guarantee their legal rights and interests, and to promote the construction of socialist material and spiritual civilisation.

Article 2:

What these regulations refer to as popular non-enterprise work units indicates social organisations carrying out social service activities of a non-profit nature, run by enterprise and institutional work units, social groups and other social forces, and also individual citizens using non-state assets.

Article 3:

The establishment of a popular non-enterprise work unit should undergo the examination and agreement of the professional leading and registration should be in accordance with the provisions of these regulations.

Article 4:

Popular non-enterprise work units should respect the constitution, laws, regulations and national policies. They should not oppose the basic principles set out in the constitution, nor should they endanger national unity, security or ethnic unity.

They should not harm the national interest nor go against prevailing social morality.

Popular non-enterprise work units may not engage in profit seeking business activities.

Article 5:

The State Council’s Ministry of Civil Affairs and also the civil affairs departments under local Peoples’ Governments at all levels above county are the bodies for the management of the registration of popular non-enterprise work units at that level of Government (hereinafter referred to as registration management authorities).

The relevant departments of the State Council and of local Peoples’ Governments at all levels above county and organisations authorised by the State Council or local Peoples’ Governments at all levels above county shall be the professional leading unit within the ambit of the relevant trade or profession of a popular non-enterprise work unit (hereinafter referred to as professional leading units).

Where laws and administrative regulations have other stipulations regarding the supervision and management of popular non-enterprise work units, these shall be carried out in accordance with the provisions of the relevant laws and administrative regulations.

2 – Jurisdiction

Article 6:

Registration management authorities are responsible for the registration and management of popular non-enterprise work units examined and approved by professional leading units at their same level.

Article 7:

Where registration management authorities, professional leading units and the popular non-enterprise work units under their jurisdiction are not in the same place, they may entrust the registration management authorities and professional leading units where the popular non-enterprise work unit is located to undertake the work of supervision and management.

3 – Registration

Article 8:

Popular non-enterprise work units applying for registration should meet the following conditions:

• I. Examined and approved by the professional leading unit;

• II. Having a standard name and the necessary organisational structure;

• III. Have the appropriate staff for the activities of their vocation;

• IV. Have the appropriate legitimate assets for the activities of their vocation;

• V. Have the necessary premises.

The name of a popular non-enterprise work unit should accord with the stipulations of the State Council’s Civil Affairs Department, and may not be headed by such words or phrases as ‘China’, ‘All-China’, ‘Chinese’ etc.

Article 9:

The applicant for the registration of a popular non-enterprise work unit should provide the following documentation to the registration management body:

• I. Letter of application for registration;

• II. Document giving the permission of the competent professional body;

• III. Proof of use rights for place of business;

• IV. Report showing acceptable assets

• V. Basic personal details and identity card of the proposed responsible person;

• VI. Draft of the charter.

Article 10:

The charter of a popular non-enterprise work unit should include the following items:

• I. Name, place of business;

• II. Aims and scope of activities;

• III. Organisation and management system;

• IV. Procedures for the production and recall of legal representatives or responsible persons;

• V. Principles for the use and management of assets;

• VI. Procedures for the amendment of the charter;

• VII. Procedures for ceasing operations and the handling of remaining assets;

• VIII. Other business to be regulated by the charter.

Article 11:

Within sixty days of receiving full and effective documentation of establishment and application for registration, the registration management authorities should issue a decision on whether or to approve the applicant’s registration. Under the following conditions the registration management authorities should not allow registration, and in the case of refusal should must explain the reason to the applicant:

• I. There exists evidence showing that the aims or scope of activities of a popular non-enterprise work unit applying for registration are not in accord with the stipulations of Article 4 of these regulations;

• II. There has been falsification during application to set up;

• III. There already exists a popular non-enterprise work unit in the same administrative district with the same or similar scope of activity, and there is thus no need to set one up;

• IV. The proposed legal representative is currently or has previously suffered the criminal penalty of removal of political rights, or does not possess the full ability to engage in civil activities.

• V. There are other circumstances forbidden by laws or administrative regulations.

Article 12:

The registration management authorities shall register the name, place of business, aims and scope of activities, legal representative or responsible person, starting funds and professional leading unit of those popular non-enterprise work units that obtain permission to register. Moreover, based on their different forms of undertaking civil responsibility in accordance with the law, issue them with either a « Certificate of registration as a popular non-enterprise work unit (legal entity)", a « Certificate of registration as a popular non-enterprise work unit (partnership) » or a « Certificate of registration as a popular non-enterprise work unit (individual). »

Those popular non-enterprise work units that, in accordance with the stipulations of the law and other administrative regulations, have already obtained the appropriate operating license should have their registration procedures simplified by the registration management authority, and should be issued with the appropriate certificate of registration as a popular non-enterprise work unit on the basis of an operating license form the relevant competent department.

Article 13:

Popular non-enterprise work units may not set up branch organisations.

Article 14:

Popular non-enterprise work units should apply to have seals cut and to open a bank account on the basis of their registration certificate. The popular non-enterprise work unit should report the style of their seal and their bank account number to the registration management authority so that they may be placed on record.

Article 15:

Should any of the matters pertaining to the registration of a popular non-enterprise work unit require alteration, they should apply for alteration of their registration by the registration management authority within thirty days of receiving the consent after examination of the professional leading unit.

Should a popular non-enterprise work unit revise its charter, they should report to the registration management authority for approval within thirty days of receiving the consent after examination of the professional leading unit.

Article 16:

Those popular non-enterprise work units that disband themselves, subdivide, merge, or that for any other reason need to cancel their registration, should do so through the registration management authority.

Prior to carrying out the cancellation o their registration, popular non-enterprise work units should, under the guidance of the professional leading unit and other relevant authorities, establish a receivership team and complete the winding up of the unit’s operations. During this process the popular non-enterprise work unit may not carry out any other activity.

Article 17:

The legal representative or responsible person of a popular non-enterprise work unit should cancel their registration with the registration management authority within 15 days of the completion of winding up the unit’s operation. When carrying out the cancellation of registration, a letter of application for cancellation of registration, an examination documentation from the professional leading unit and a final winding up report must be submitted.

Those units that are permitted to cancel their registration by the registration management authority will be issued with documentary proof of the cancellation of their registration, and will have their certificate of registration, seals and financial credentials taken away.

Article 18:

The registration or cancellation thereof of a popular non-enterprise work unit or their change of name, place of business, legal representative or responsible person should be made public by the registration management authority.

4 – Supervision and management

Article 19:

The registration management authority has the following supervisory and management responsibilities:

• I. Responsible for the establishment, alteration, and cancellation of registrations of popular non-enterprise work units;

• II. Conduct an annual review of popular non-enterprise work units;

• III. Conduct a supervisory review where there are problems with popular non-enterprise work units fail to comply with these regulations, and apply administrative sanctions to activities of popular non-enterprise work units that fail to comply with these regulations.

Article 20:

The professional leading unit has the following supervisory and management responsibilities:

• I. Responsible for the investigation of popular non-enterprise work units prior to the establishment, alteration, or cancellation of their registrations;

• II. It is responsible for supervising and guiding the popular non-enterprise work units in observance of the constitution, laws, statutory regulations, national policy, and in developing activities in accordance with their charter;

• III. Responsible for the annual review of popular non-enterprise work units;

• IV. Assist the registration management authority and other relevant departments in investigating and disciplining any illegal activities of popular non-enterprise work units;

• V. Jointly oversee the winding down of popular non-enterprise work units with other relevant authorities.

Professional leading units may not levy a fee from the popular non-enterprise work units for performing the above services.

Article 21:

A popular non-enterprise work units’ capital resources must be lawfully obtained; no institution or individual may seize, secretly divide or divert the popular non-enterprise work unit’s capital.

Popular non-enterprise work units’ legal income must be used for activities stipulated by the charter of the unit.

Contributions or donations to popular non-enterprise work units must be used in compliance with the principles and areas of work laid down in the organisation’s charter, and in compliance with purposes, methods and timescale as agreed with donors. Popular non-enterprise work units must report to their professional leading unit on the receipt and use of contributions and donations, and must use appropriate means of publicising relevant information to society at large.

Article 22:

Popular non-enterprise work units must implement a financial management system as per State regulations and accept the supervision of finance departments; those whose source of funds is State financial aid or donations and/or financial aid from society at large should also accept the supervision of auditing organisations.

Before changing office holders or legal representatives the registration and management agency and professional leading unit must carry out a financial audit of the organisation.

Article 23:

Popular non-enterprise work units must submit to their professional leading unit an annual work report for the preceding year by March 31; after preliminary investigation and approval by the professional leading unit, the report must be submitted, by May 31, to the registration and management agency, which will then carry out an annual review. The work report should include the following contents: the unit’s situation in respect of complying with laws, regulations and national policy; its situation in respect of these regulations’ registration requirements; activities carried out in accordance with its charter; any changes in membership, administration; financial situation.

The registration and management agency should simplify the contents of the annual review for social organisations which have, in accordance with Article 12 Section 2 of these regulations, been issued with a registration certificate.

Article 24:

Those popular non-enterprise work units that whilst applying for registration engage in falsification or attempt to fraudulently obtain registration, or who have their permission revoked by the professional leading unit should have their registration cancelled by the registration management authority.

Article 25:

In any of the following cases, the registration and management agency will issue popular non-enterprise work units with a formal warning and instruction to rectify their conduct; it may also stipulate a time frame within which further activities must cease; and may order a change in executives with direct management responsibilities [zhijie fuze de zhuguan ren]; in serious cases, registration will be cancelled; if the activities are criminal, criminal sanctions will be applied in accordance with the law:

• I. Where the popular non-enterprise work unit’s registration certificate is obliterated, hired out or lent, or the social organisation’s official seal is hired out or lent.

• II. Where a popular non-enterprise work unit’s activities go beyond the principles and area of work as defined in the charter.

• III. Where supervision and reviews in accordance with the regulations are refused or not accepted.

• IV. Where modifications of registration are not carried out in accordance with the regulations.

• V. Where branches organisations are established. .

• VI. Where popular non-enterprise work units engage in profit seeking activities.

• VII. Where a popular non-enterprise work unit’s capital, public contributions or donations are seized, secretly divided or diverted.

• VIII. Where relevant national regulations are contravened in the charging of fees, collection or receipt of financial resources, donations or contributions.

Where the activities listed in the preceding sections produce an illegal operating surplus [jingying’e] or illegal gains, this shall be confiscated. They may moreover be fined an amount between twice and three times this illegal surplus or between three and five times such an illegal gain.

Article 26:

If a popular non-enterprise work unit’s activities oppose other laws or regulations, it will be dealt with by the appropriate national agencies; if the relevant national agencies consider the popular non-enterprise work unit should be closed down, the registration and management agency will cancel the registration.

Article 27:

Those who have not registered and engage in the activities in the name of a popular non-enterprise work unit without authorisation, or popular non-enterprise work units that have hade their registrations revoked yet continue to engage in activities in the name of a popular non-enterprise work unit will be disbanded and have their unlawful property confiscated by the registration management authority. Where this constitutes a crime, criminal responsibility should be determined in accordance with the law; where it does not constitute a crime a public security sanction may be imposed in accordance with the law.

Article 28:

If a popular non-enterprise work unit is instructed to cease its activities within a specified time, the registration and management agency will freeze the popular non-enterprise work unit’s registration, official seal and financial records.

If the registration of a social organisation is cancelled, the registration and management agency will confiscate its registration certificate and official seal.

Article 29:

Those members of staff of registration management authorities or professional leading units who abuse their power, practice favouritism or embezzle, or neglect their duty, shall, where this constitutes a criminal offence, have their criminal responsibility investigated in accordance with the law; where it does not constitute a criminal offence, they shall be given administrative punishment in accordance with the law.

5 – Sumplementary

Article 30:

The design of the popular non-enterprise work unit registration certificate shall be decided by the State Council Ministry of Civil Affairs.

No charge may be levied for conducting the annual review.

Article 31:

Popular non-enterprise work units already established before the issuing of these regulations must apply for registration in accordance with the provisions of these regulations, within one year of these regulations taking effect.

Article 32:

These regulations take effect from the day of their promulgation.

Commentary

Il est régulièrement fait mention dans ce dossier des difficultés d’enregistrement des associations chinoises, il nous a donc paru important d’y faire figurer les textes de loi qui s’y rapportent.