Bibliography
Asia-Pacific
Philanthropy Consortium (APPC), Giving and Fund Raising in Asia,
(Manila: 2002).
Asia-Pacific
Philanthropy Consortium (APPC), Overviews of the Third Sector Legal Environment:
Incorporation and Taxation for the following countries: China, South Korea,
and Thailand; found on the APPC website:
http://www.asianphilanthropy.org/countries/index.cfm.
Barnett
F. Baron, THE LEGAL FRAMEWORK FOR CIVIL SOCIETY IN EAST AND SOUTHEAST
ASIA, Opening Remarks for a workshop held at the Catholic University of
America, Washington, April 12, 2002; published in 4 Int'l J. Not-for-Profit
L. 4 (June 2002), at http://www.icnl.org/journal/vol4iss4/ar_baron1.htm.
Chen
Guangyao, China's Nongovernmental Organizations: Status, Government Policies,
and Prospects for Further Development, 3 Int'l J. Not-for-Profit L. 3
(June 2001), at http://www.icnl.org/journal/vol3iss3/ar_guangyao.htm.
Joyce
Yen Feng, "Efforts on improving the NGO/NPO legal environment in
Taiwan," a paper presented at the Workshop on The Legal Framework
for Civil Society in East and Southeast Asia, April 12, 2002.
Leon
E. Irish and Karla W. Simon, Economic Growth, Transition, and Reform in
China: The Role of a Legal and Regulatory Enabling Environment for NGOs,
in The Non-profit Sector and Development, Zhao Liqing and Carolyn
Iyoya Irving, eds. (Hong Kong: 2001)
Josephine
Lu, The Non-profit Sector in Taiwan, from the Himalaya Foundation website, http://www.tpic.org.tw/NPOInfo/index1-3.asp.
Robert
Pekkanen and Karla Simon, The Legal Framework for Voluntary and Not-for-Profit
Activity in Japan in The Voluntary and Nonprofit Sector in Japan,
Stephen Osborne, ed. (London: Routledge, forthcoming 2002).
Thomas
Silk, ed., Philanthropy and Law in Asia: A Comparative Study of the
Nonprofit Legal System in Ten Asia Pacific Societies (San Francisco:
Jossey-Bass 1998).
Fely
I. Soledad, The Philippine Council for NGO Certification, a paper presented
at the Workshop on The Legal Framework for Civil Society in East and Southeast
Asia, April 12, 2002.
Appendix
1.
Report:
Conference on Legal Enabling Environment for NPOs in East and Southeast
Asia
by Karla W. Simon
In
April 2002, a conference was held at the Catholic University of America
to discuss the legal enabling environment for NPOs in East and Southeast
Asia. It was co-sponsored by CUA, the Asia Foundation, and ICNL and attended
by scholars and activists from the DC area. Speakers included Dr. Barnett
Baron, Executive Vice President of the Asia Foundation, Dr. Leon Irish,
President Emeritus of ICNL, and Prof. Zhao Liqing, Visiting Scholar at
the Catholic University of America. Dr. Joyce Yen Feng of National Taiwan
University sent a paper, but she could not attend.
In
the discussion following the presentations, the conference participants
elaborated on the following issues:
1. |
Whether other countries in the region should adopt participation
legislation, such as that in the Philippines? This legislation mandates
a role for civil society with respect to the adoption of various
policies at the local, regional, and national levels of government.
Other countries in the region do not have such legislation and their
civil societies are not as strong as civil society in the Philippines. |
|
|
2. |
There is a definite link between granting tax advantages to NPOs
and their being willing to register to obtain legal status. The
recent legal changes in Japan suggest this close linkage. |
|
|
3. |
While self-regulation is a good idea, will it work as it has been
designed in the Philippines? Unfortunately the PCNC (Philippine
Council of NGO Certification, which has been established to determine
whether organizations are permitted recipients of deductible donations)
has only investigated 220 and approved 135 NGOs out of some 60,000
that are eligible for tax deductibility. What the PCNC has done
is design a system of elaborate evaluation procedures for the qualification
process, which seems to have occasioned the serious delays. In addition,
the Philippine Parliament, in a rather ominous retreat from the
legislation that created the PCNC, has before it a bill that would
eliminate tax deductibility altogether! |
|
|
4. |
Whether it is necessary or beneficial to have legislation for NPOs
or whether a simple system of regulations would be sufficient, as
in China? Although the Chinese government has been discussing the
prospect of legislation, it has not yet produced a draft law. The
Vietnamese government, while discussing a draft law, has permitted
NPOs to develop under outmoded and very minimal legislation from
the 1950's. There was disagreement among the participants about
the general principle of whether it is better to have laws enacted
by the legislative body as opposed to regulations adopted by the
government. |
|
|
5. |
The importance of one regulatory system for NPOs as opposed to several
different regimes under which they can become registered and are
then regulated. Prof. Feng's paper highlighted this as an important
issue under consideration in the debates about legal reform in Taiwan. |
|
|
6. |
Developing
new ways to encourage philanthropy in East/Southeast Asia by looking
to traditional patterns of giving. The Asia Pacific Philanthropy
Consortium has recently published a multi-nation study of these
issues in Asia, and it suggests that Asian values have always supported
philanthropy, but not always along the lines that are traditional
in the West. See Investing in Ourselves: Giving and Fund Raising
in Asia, published by APPC in 2002. |
|
|
7. |
The
paramount importance of tax advantages in promoting philanthropy. |
|
|
8. |
The
importance of having a legal framework that encourages the role
of advocacy organizations because of their significance in modern
civil society (see also #10). Although E/SEA governments have traditionally
been wary of or even hostile to advocacy organizations, the group
at the conference was clear about the need for a change of attitude
in this regard throughout the region. |
|
|
9. |
The
importance of impartial enforcement of legislation. Although good
laws may be written, they are only as good as their enforcement.
There is a strong need in the region for better training of government
officials, both as to their general duties and as to their awareness
of the roles that NPOs should play in society. |
|
|
10. |
The
role of NPOs in policing government corruption should be emphasized. |
|
|
11. |
NPOs
should be encouraged to develop codes of conduct in all of the countries
of the region. There does not seem to be much of a movement toward
the adoption of such codes by national NPO representative organizations.
In fact, in many countries, the NPO representative organizations
are fairly weak, which limits their capacity to act as sector representatives
when lobbying for legal change is necessary. |
|
|
12. |
NPOs
in the region should become more convinced of the benefits of transparency
in their operations. Because of the suspicion of governments, many
NPOs in many countries (e.g., Indonesia) have not seen transparency
as an objective. This has in turn led to corruption within the sector
and a distrust of the sector not only by the government but also
by the public. |
Appendix
2 Categories of Not-for-Profit Legal Entities in Japan |
Entity |
Governing
Law, Date |
Purpose
of the entity |
Establishment
Body |
Standard
for Estab. |
#
of entities |
Association shadan houjin |
Civil
Code, Article 34 (1897) |
Associations
with the objective of worship, religion, charity, education, arts
and crafts, and other activities for public interest, and not for
profit |
Competent
Gov't Agency |
Permission kyoka |
11,867 |
Foundationzaidan
houjin |
Civil
Code, Article 34 (1897) |
Foundations
with the objective of worship, religion, charity, education, arts
and crafts, and other activities for public interest, and not for
profit |
Competent
Gov't Agency |
Permission kyoka |
12,
814 |
Social
Welfare Corporations shakai fukushi houjin |
Social
Welfare Business Law, Article 22 (1951) |
Corporations
established under the law with the objective of social welfare businesses |
Ministry
of Health and Welfare |
Approval ninka |
13,307 |
Educational
Corporation |
Private
School Law, Article 3 (1949) |
Corporations
established under the law for the purpose of establishing a private
school |
Minister
of Education |
Approval ninka |
11,765 |
Religious
Corporation shyuukyou houjin |
Religious
Corporation Law, Article 4 (1951) |
Corporations
having the purpose of evangelizing, conducting religious rites, and
educating and nurturing believers |
Minister
of Education |
Certification ninshou |
183,894 |
Medical
Corporation |
Medical
Law, Article 39 (1950) |
Associations
or foundations whose objectives are to establish a hospital or clinic
or a facility for the health and welfare for the elderly |
Ministry
of Health and Welfare |
Approval ninka |
14,048 |
Public
Charitable Trust |
Trust
Law, Article 66 (1923-applied 1977) |
Trusts
with the objectives of worship, religion, charity, education, arts
and crafts, and other purposes in the public interest |
Minister
of Competent Gov't Agency |
Permission kyoka |
433 |
Approved
Community-Based Organization |
Local
Autonomy Law 260 (2) (1991) |
Organizations
formed by residents of a community |
Mayor
or town or village head-person |
Notification todokede |
841 |
Special
Nonprofit Activities Legal Persons NPO houjin |
Special
Nonprofit Activities Promotion Law (1998) |
Nonprofit
entities whose activities include those for promotion of health, welfare,
education, community development, arts, culture, sports, disaster
relief, international cooperation, administration of organizations
engaging in these activities, etc. (11 examples) |
Economic
Planning Agency |
Certification ninshou |
1,012 |
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