Enough reasons for Charity Law to succeed

China’s first Charity Law came into effect on Sept 1. As a Canadian and a charity lawyer working internationally, I was involved in the legislative process for over 10 years.

The National People’s Congress, China’s top legislature, included the China Charity Promotion Law in its legislative agenda in 2006. I attended the first China Charity Conference in November 2005, when I also met Ministry of Civil Affairs officials who had drafted the legal framework. And since I was one of the three foreign legal experts who helped in the drafting of Russia’s first charity law and had also done similar work in other countries, I was asked to assist the drafting committee of China Charity Promotion Law.

Charity laws work well in the United Kingdom, Canada and the United States because they reflect the social, religious, ideological, economic and tax influences which shape citizens’ desire to contribute to civil society causes.

Ten years ago, China’s challenge was to enact a law that promoted charitable activities in ways that reflected the country’s realities, and was “rooted in Chinese soil”. Simply importing legal words and concepts from other countries could lead the average Chinese to consider “charity” a foreign construct. China achieved this by focusing on poverty reduction and its response to natural disasters.

As China has implemented the Charity Law to help mobilize private resources to address social needs, it is important to begin by giving priority to the 70 million Chinese who still live in poverty.

The charity law project team visited Singapore, Japan, the Republic of Korea, as well as Canada, the UK and the US. One of the lessons that the team learned from these visits was the benefits of having the regulator based outside the tax office, such as the Charity Commission for England and Wales, rather than having charities regulated by the Internal Revenue Service as it is in the US. Consequently, the Ministry of Civil Affairs was made the regulator in China.

In countries such as Canada and the US, the tax benefits provided to donors are extremely important. But in some countries in Eastern Europe, generous tax breaks were manipulated leading to corruption. China considered both lessons and created a law with a pathway to tax benefits but will await the experience of the tax authorities to determine what level of tax benefit encourages donations without providing the temptation to abuse them.

Over the past 11 years I have visited China over 50 times and participated in more than 20 workshops on the charity law. When I reflect on a decade of involvement with the project team, I think about the friendships I established with the project officials, such as Wang Laizhu, Wang Jianjun and Zhu Weiguo, and project leader Li Jian. I hope my expertise in comparing and explaining the charity laws in different countries was useful to the project team. But I was more often the student than the teacher, and I learned about the aspirations of ordinary Chinese to understand foreign charity principles so as to develop a distinct Chinese charity law.

The success of the Charity Law will be determined by how the Ministry of Civil Affairs registers new organizations and how those organizations carry on worthy projects authorized by the law. The law has been enacted to enable ordinary individuals as well as corporations to mobilize resources for charity. Citizens, organizations and the ministry will have to operate in harmony to fulfill the potential of this law, that is, to develop a charity culture which reflects the reality of China today. I hope the Charity Law achieves great success.

The author is a lawyer and expert in charity law, and a pioneer of charitable law and gifting in Canada.