Research On The Legalization Of Chinese Charity Organization Governance

Chinese charity organizations have been developing in a tortuous course. Startingfrom the establishment of China Children and Teenagers, our charity organizationshave experienced periods of exploration, recovery and leap development.30years’development has made achievements, but failed to bring itself into a mature period inthe fourth decade. After many problems were exposed in "Meimei Guo Issue" in2011and the following charity scandals in recent years, our charity organizations enteredinto a "rectification period". The root cause that charity scandals frequently touch thepublic nerve lies in the dilemma of standardization of charity organizationdevelopment. Currently the main charity laws are only“Welfare Donations Law”and“Three Regulations of Social Organization”which are relatively lower in legal status.Specialized charity law has not yet been issued. The insufficiency of institution findsits way in a legalized solution. Charity organization governance means implementingthe rights and responsibilities, distributing its relevant power, rights, obligations andresponsibilities so as to realize the regulation by means of organization rules, laws andregulations, assessment of the third party, social supervision and so on. Thelegalization of charity organization governance refers to the governance within theframework of law, in other words, let the law governs the organization.There is no specialized legislation for charity organization in China, neither has itbeen officially defined. The semantic is relatively confusing. With the help of westernscholars’ study of nonprofit organization and charity organization, and absorption ofthe domestic research results and some local legislation, charity organization can bedefined as Public Welfare Nonprofit Organization. Charity organization should havethe characteristics such as public welfare, non-profit, civil or non-governmental, and significant voluntary. Charity organization in China can be divided into different types,including official, semi-official and civil charity organization. The classificationreflects its incomplete civil nature in China. The classification of juridical associationand consortium corporation provides a scientific path for governing charityorganization, which also lays a solid foundation for our research. The governance ofcharity organization requires a smooth relation and collaboration between autonomyand rule of law, as well as the respect for certain principles such as humanitarian,protecting human rights, human dignity, transparency and participation.Charity organization governance consists of internal governance and externalgovernance. Internal governance is based organization articles which underlie theorganization and regulates its activities. Nevertheless, the autonomy based onorganization articles is limited in its utility, in the cases that the article content is notreasonable, the power and responsibilities of governance body fail to be realized, dueto missing forcible punishment power in the event of disobey only passive punishmentpower is superior. Hence, external legal means are needed to realize the legalization ofinternal governance on the basis of autonomy. At present, the internal governance bodyof our charity organization is quite problematic, such as unreasonable structure,imperfect power restriction mechanism, inefficient functioning, and excessiveadministration of certain internal department. Problems exist too in the internalfinancing system, including imperfect basic funds in-out management, loose internalaccounting system, immature internal audit and supervisor system. Power andresponsibility analysis of charity organization’s internal governance body is a bondconnecting organization articles and law. For this reason, it is essential to clarify thepowers and responsibilities in order to establish and implement related regulations, andto achieve the legalization of internal governance with this specific way. Specifically,this legalization aims at fixing with the law framework the property income andexpenditure system, internal financial and accounting systems and internal auditsupervision systems that are established based on power and responsibility articles.The external governance includes governmental supervision and administration, supervision and assessment of the independent third party institution, and thesupervision from social public and media. At present, the problems of externalgovernance include malposition and absence of government regulation, invalidity andabsence of independent third party supervision and appraisal institution, lack ofrationality and long-term vision of the public and media’s supervision, etc. Theessence of governance legalization is the implementation of legal thinking and means,i.e. the country uses mechanism, laws and regulations to realize the governance ofcharity organization. The relation among power, rights, obligations and responsibilitiesneeds to be clarified, the core of which refers to the limits of power, protection of therights, the performance of obligations as well as right remedy through legal. Thisclarification and its fixation in the form of law is the right path to the legalization ofcharity organization external governance.The legalization our charity organization ranges from concept to principle, frominterior to exterior, from the system to the implementation. First of all, the legal systemof charity organization must be established and improved. Currently, our charity isfacing relatively lower legal status, rigidity to principles, and lack of operability andrelief measures. These are the main obstacles to get over in the future. Secondly, therights guarantee mechanism is to be established and improved. Right of supervision,right to know, right of privacy, right of reputation and honor should all be guaranteedin the form of law. Furthermore, the external supervision system should be establishedand improved, including annual inspection system, external financial and accountingsupervision, audit supervision system, tax preferential system, independent third partysupervision and evaluation system and the public and media supervision system etc. Atlast, a legal liability system should be established and improved. The legal remedythrough legal responsibility is the core problem in the legalization of charityorganization, which is also aimed by this thesis to achieve possible innovativeachievement. The legalization of charity organization governance needs legal remedymeans, without which even a perfectly designed system would not be realized. It issuggested in this paper that the legalization be realized through remedy ways of administrative legal liability, civil legal liability and criminal legal liability.