Astrid Fossier, Paris, diciembre 2007
Règlementation provisoire pour l’enregistrement et la gestion des Institutions non-commerciales.
Cette règlementation a été traduite par China Development Brief.
Idiomas: Chinois mandarin
The State Council of the Peoples’ Republic of China, Order No. 252
The ‘Provisional regulations for the registration and management of non-commercial institutions’ 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}}
These regulations have been drawn up in order to standardise the registration and management of non-commercial institutions, to guarantee non-commercial institutions’ legitimate rights and interests, and to give full play to their role in the construction of socialist material civilisation and spiritual civilisation.
What these regulations refer to as non-commercial institutions indicates social service organisations engaged in such activities as education, science and technology, culture or public health, that the state, with an objective of social benefit, runs through state organs or other organisations using public assets.
Such profit-making commercial organisations that non-commercial institutions may run in accordance with the law must practice separate accounting, and should be registered and managed in accordance with national laws and regulations concerning such commercial organisations as companies and enterprises.
Non-commercial institutions, having been established through the permission of Peoples’ Governments at county level or above or other responsible departments [zhuguan bumen] (hereinafter referred to as examination and approval bodies), should be registered or placed on record in accordance with these regulations.
Non-commercial institutions should meet the conditions to be a legal entity [faren].
Non-commercial institutions should respect the constitution, laws, regulations and national policies.
The State Council’s body for the management of the establishment of organisations and also the bodies for the management of the establishment of organisations under local Peoples’ Governments at all levels above county are the bodies for the management of the registration of non-commercial institutions at that level of Government (hereinafter referred to as in short as registration management authorities).
The registration and management of non-commercial institutions separated by level will be practiced. The specific method for registration and management of non-commercial institutions separated by level will be laid down by the State Council’s body for the management of the establishment of organisations.
Where laws and administrative regulations have other stipulations regarding the supervision and management of non-commercial institutions, these shall be carried out in accordance with the provisions of the relevant laws and administrative regulations.
2 – Registration
To apply for registration as a non-commercial institution legal entity, the following conditions should be met:
I. Be set up with the permission of the examination and approval bodies;
II. Have their own appellation, organisational structure and place of operation;
III. Have the appropriate staff for the activities of their vocation;
IV. Have an appropriate source of funding for the activities of their vocation;
V. Be able to independently undertake civil responsibility.
To apply for registration as a non-commercial institution legal entity, the following documentation should handed over to the registration management authority:
I. Letter of application to register;
II. Document of permission from the examination and approval body;
III. Proof of use rights for place of operation;
IV. Proof of source of funding;
V. Other relevant documentation.
Registration management authorities should carry out an examination in accordance with the stipulations of these regulations within thirty days of receiving the letter of application to register. Those permitted to register to be issued with a « Certificate of status as a legal entity for non-commercial institutions »; those not permitted to register to have the reason explained to them.
The matters pertaining to the registration of a non-commercial institution as a legal entity include: appellation, place of business, aims and scope of activities, legal representative, source of funding.
Non-commercial institutions having registered should have seals carved on the basis of their « Certificate of status as a legal entity for non-commercial institutions », and apply to open a bank account. The non-commercial institution should report the style of their seal to the registration management authority so that it may be placed on record.
Should any of the matters pertaining to the registration of a non-commercial institution require alteration, registration of the alteration should be conducted with the registration management authority.
Those non-commercial institutions that meet the conditions for a legal entity stipulated in law and that thus adopt the status of a legal entity beginning from the day they are permitted to be established, or those non-commercial institutions that have already received the relevant operating license because they met the conditions for a legal entity stipulated in the law or other administrative regulations and were examined and verified or registered by the competent department, need not conduct registration as a non-commercial institution again, but should be placed on record with the registration management authority by the competent department in accordance with the provisions for management of registration separated by level.
Directly controlled non-commercial institutions set up by Peoples’ Governments at all levels above county should be directly placed on record with the registration management authority.
The matters pertaining to the placing on record of a non-commercial institution, as well as those listed in Article 8, Section 2 of these regulations should also include the operating license or documentation of permission to be set up.
The registration management authority should issue a « Certificate of status as a legal entity for non-commercial institutions » within thirty days of receiving the relevant documentation to those non-commercial institutions to be placed on record.
Non-commercial institutions that are wound up or disbanded should cancel their registration or record with the registration management authority.
Prior to cancelling their registration, the institution should set up an auditing team under the guidance of the examination and approval body to complete final auditing work.
The non-commercial institution should cancel their registration with the registration management authority within 15 days of the completion of final auditing work. When cancelling registration, a non-commercial institution should provide the documentation concerning the winding up or disbanding of their institution and also the final audit report; the registration management authority should take back the institution’s « Certificate of status as a legal entity for non-commercial institutions » and seals.
The registration or placing on record of a non-commercial institution or their change of name or place of business or the cancellation of their registration or record, should be made public by the registration management authority.
3 – Supervision and management}}
Non-commercial institutions that carry out activities and obtain legal income in accordance with the relevant State regulations must use this in activities that meet with their aims and scope of activities.
Non-commercial institutions receiving donations or financial aid must do so in accordance with their aims and scope of activities, and must put them to legitimate use according to time limits and method agreed with the donor.
Non-commercial institutions must implement the State’s relevant financial and pricing management systems, and accept the supervision of taxation and auditing departments.
Non-commercial institutions should send separate reports on their adherence to these regulations before the 31st of March every year to both the registration management authority and the examination and approval body.
Those non-commercial institutions that have not yet registered as stipulated in these regulations should be instructed to conduct remedial registration procedures within a set period of time; those who exceed the time limit without completing remedial registration should be recommended by the registration management authority to have disciplinary punishments given out to their legal representative or other directly responsible persons, in accordance with the law.
Should a non-commercial institution display any of the circumstances listed below, they should be given a warning by the registration management authority and instructed to rectify the situation within a set period of time; where the situation is serious, with the agreement of the examination and approval body, they should have their registration revoked, and their « Certificate of status as a legal entity for non-commercial institutions » and seals confiscated:
I. Those who alter or cancel their registrations failing to accord with the stipulations of these regulations;
II. Those who alter, hire or loan out their « Certificate of status as a legal entity for non-commercial institutions » or who hire or loan out their seals;
III. Those who accept or make use of donations or financial aid in contravention of regulations.
Non-commercial institutions that violate the law or other regulations should be dealt with by the relevant organs in accordance with the law.
Those members of staff of registration management authorities who in the course of their work overseeing the registration of a non-commercial institution abuse their power, neglect their duty, practice favouritism or embezzle, 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.
4 – Supplementary
The style of the « Certificate of status as a legal entity for non-commercial institutions » shall be laid down by the State Council’s body for the management of the establishment of organisations.
Non-commercial institutions already established prior to the implementation of these regulations should carry out the procedures for registration or putting on record in accordance with the relevant provisions of these regulations, within one year of their being implemented.
These regulations take effect from the day of their promulgation.
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.