L'économie informelle

Paragraph 4 : At the international level

Paraphrasing professor Bakandeja, the abstract commercial practices contributed to the disordered state of the financial and banking system and to the capital flight ^(64(*)). The share of Africa to the international trade is unimportant, hardly 1,5% ^(65(*)).

The abstract commercial practices constitute for some, an attack with the economic law and order, because of difficulty of stopping them and of repressing them ; they became a plague to fight to support the development of the Democratic Republic of Congo in margin until there of the dynamics of the universalization or the globalisation of the economy ^(66(*)).

Claude of Reflected corroborates this thought when it affirms that if the opening to the world trade can offer thereafter and under conditions of the appropriatenesses of growth and thus employment, it can cause also precarisation and instability of the forms of energizations because of the nomadism of the multinational corporations and permanent research of profit of productivity. In this context there concludes, the abstract sector constitutes a determining variable of adjustment while remaining synonymous with poverty: the productivity and remunerations are lower there than in formal employment ^(67(*)).

Moreover, in comparison with the width taken by the abstract sector, in particular in urban environment, any strategy of development, to be viable, must integrate this side of the economy.

Our opinion does not meet that of the authors who think that because of difficulty in stopping and repressing the abstract commercial practices, those became a plague to be fought.

We are of the opinion that the taking into account of the diversity of the abstract economy must be the base of the action on this sector.

It is, indeed productive activities of goods (like the craft industry) and of the trade and services, exempted with the categories slightly solvent of the population, which must be constant.

On the other hand, certain activities with negative impact on the economy and the company must be fought (smuggling, various forms of traffic); it is appropriate in addition, to take into account the constraints structural of the abstract economy: the activities which make it up manage to follow only with the help of the exploitation of certain comparative advantages, such as the absence or the reduction of the fiscal burden, the weakness of the costs of labor (not respect of the fair labor standards act) and rather often the not-localization (travelling, semi-travelling activities and in residence). Under these conditions, to deprive them of such advantages is not without involving their bankruptcy in the long term, without risk to do it in support of measurements of accompaniment; finally, the strategy of development of the abstract economy must fall under an approach privileging in the short term the social considerations compared to economic logic.

The choices, as for them, must aim at helping the abstract activities to evolve gradually to the small one and medium-sized company and to be articulated functionally with modern economic fabric.

For this purpose, the action is to be led to the level of four fields:

§ The organization: it constitutes the keystone of the evolution of the abstract economy. Indeed, once gathered in trade associations, co-operatives, small companies, recorded and integrated in their respective professional rooms, the activities cease being fugacious and become accessible to the action.

§ Financing: within sight of their sizes and from their functional specificity, the abstract activities are excluded from the institutional systems from financing and are thus private means of evolution. However, there are currently several financing appropriatenesses of such activities, of which most accessible is the system of the microphone-credit, created in certain countries within the framework of the fight against poverty ^(68(*)).

However, a work of sensitizing is to be made to lead the actors to exceed their reserve with regard to the credit as such and with better using it.

§ formation: the new needs are made feel particularly in the sectors of the craft industry and the services. But it acts less than one basic training, that of an improvement of technical and administrative know-how.

§ Formation of quality: per hour when the national economy has to level itself, to deal with foreign competition, all must be made to promote quality by means of the recording of the labels, of the defense of the consumer and the sensitizing of the actors. The Congolese Office of control thus must thoroughly want with control as well local products as those of source from abroad.

To arrive there, the Congolese State must adapt its legislative and lawful arsenal organizing the small trade in accordance with the needs and the needs for this new dynamics which is the abstract economy. The chapter which follows will be harnessed to show the founded good of this step.

CHAPTER II:

The ABSTRACT ECONOMY VIS-A-VIS the OPTIONS OF REFORMS AND FORMALIZATION

In this chapter, we briefly present in a first section the evolution of the legal situation of the Democratic Republic of Congo on the small trade, in one second section, we thoroughly analyze the possibilities of reform of the ordinance-law of August 08, 1990 on the small trade in order to appreciate between it and the formalization analyzed in the section third, which is likely to ensure the promotion of Congolese SME ?

Section 1: Short presentation of the legal situation of R.D.C on the small trade

Throughout this section, we present the evolution of the legal arsenal having preceded and having led to the regulation of the small trade in Democratic Republic of Congo. This step is imposed to us because it is suitable for inform us about the place that the authorities as well political as legal want to see occupying this activity.

For that purpose, we subdivided our reflection in three principal points. We begin with the presentation from this situation from the period prior to 1979, then comes the period which goes from 1979 to 1990; for finally finishing by the period which goes from 1990 to our days.

Paragraph 1: Presentation of the legal situation of the DRC on the small trade of the period prior to 1979

The principle of the freedom of trade and industry adopted by the Democratic Republic of Congo and other countries does not prohibit with the authorities to control the exercise of the trade and to limit its access to certain categories of individual ^(69(*)).

If in the lived daily one of the Congolese population, the small trade goes back to one remote time, it is not the case for its regulation. The history of the Malebo pool shows that it was a place of trade a long time very abundant good before the colonial occupation ^(70(*)). Considering the difficulty in circumscribing this pre-colonial trade, in the specific context of this study, a field how much important which deserves a work with whole share apart from this framework, we will approach only the part which goes from colonization to date.

Of aucuns know it that the regulation of the trade in Democratic Republic of Congo begins with the act from Berlin which posed already the principle of the freedom of trade of which was to lay out any person arising of one of the States signatories to be established as tradesman on the extent of the Congolese territory. The philosophy included/understood in this act led certain intelligences to regard Congo as the first field of experimentation of universalization.

The act of Berlin is just limited to delimit the framework in which the freedom of trade is supposed to be exerted, without to enact a corpus swears adapted and able to frame the aforementioned freedom. From where conference holding of Brussels of 1890 which maintains the principle of freedom posterior to the payment of a tax and will try a first regulation of the trade by the introduction of the restrictions on the traffic of the weapons with fire and the spirits.

Consequently occasion, it will authorize the collection of an import duty of 10% on the values of the goods to the wearing of importation. This principle with some exceptions close will be maintained with the convention of Saint Germain-in-Bush hammer of 1919.

Indeed, the State Independent of Congo, which at that time be already become a Belgian colony « Belgian Congo » obliged with the colonist the respect of the agreements in which it had freely taken part.

Thus, it is necessary to affirm that the decree of July 31, 1912 on the book of trade must rightly be regarded as the first text to have regulated the commercial activity in Congo. This decree, by the means of the colonial authority poses inter alia like condition of exercise of the trade does it of knowing to read and write, to know to handle the measuring instruments, etc

The second regulation is that of the decree of May 06 1959 which subordinates the exercise of any commercial activity to the detention of a register of trade.

During the post-colonial period, it is the ordinance-law n°66/260 of April 21 1966 which will arrange Congolese commercial space by subordinating not solum the exercise of any commercial activity to the registration to the register of trade but also by requiring financial guarantees for the creation of the companies like to the exercise of the trade by the foreigners.

In fine, the law n°73-009 will come from January 5, 1973 known as particular law on the trade. This law prohibited the abroads the exercise of certain commercial activities ^(71(*)) except, preliminary authorization of the president of the Republic.

He arises by what precedes that period going by 1885 to 1973, only the commercial activities others that the small trade were regulated. What happenhappen does then small trade? It is only on August 02 1979 which was setting-up a relating to it regulation.

Paragraph 2 : Presentation of the legal situation of R.D.C. on the small trade of the period going from 1979 to 1990

The economic right being essentially national, the State regulates the economy according to the needs present and future for its population. In the constant concern to initiate the natives with the practice of the businesses and to grant the management of the national economy to them, the Congolese legislator, regarding the activities concerned with the small trade as activities of survivals and not very decisive impact on the economy, but immediate on the population will devote them exclusive field of the nationals so that they are henceforth Masters of their destiny. For this purpose will be excluded, the foreigners in general and some nationals in particular. Let us specify that this prohibition is without call and by rebound makes null and void any attempt at benefit of the preliminary authorization of the President of the Republic required for the exercise of the activities which enters in line of sight of the law known as particular on the trade.

The regulation from which the contents come to be summarily presented is the work of the ordinance-law n°79-021 of August 02 which 1979 we analyze below. Will be taken into account the aspect définitionnel small trade, that relating to the procedures of its exercise, its conditions like with the sanctions incurred by the contraveners. This step is justified because it enables us to appreciate these elements up to what point can affect the abstract practices.

* ⁽⁶⁴⁾ BAKANDEJA wa MPUNGU, art.cit., p. 8.

* ⁽⁶⁵⁾ Idem., p. 8. We recommend the reading with interest of the works of the Professor BAKANDEJA wa MPUNGU  : Right of the finance public, ED. NORAF, Kinshasa, 1997. Handbook of financial right, ED. African academics, 1997. The above-named works have the importance of the capital and the money market for the operation of a modern State. From this importance, we can deduce the suicidal character from the abstract economy which rightly perhaps qualified «  Statocide  » owing to the fact that it deprives the State of the incomes necessary to its development.

* ⁽⁶⁶⁾ For more information on concepts universalization and globalisation, lira DELCOURT J. and WOOT P., the challenges of the globalisation  : Babel or Pentecost  ? University presses of Leuwen, 2001, pp. 15-34. DELCOURT affirms that for the english-speaking there is not difference between the two concepts because the first does not appear in its vocabulary. For the French-speaking people on the other hand, the two concepts are taken one for the other, but the author distinguish them and shows the interferences and the zones of superposition which exist between them.

* ⁽⁶⁷⁾ REFLECTED C., the abstract sector in the Caribbean one, in www.unesco.org/delors/tfrench/faire.htm, 05-04-2002

* ⁽⁶⁸⁾ In the same spirit, lira ALIOUNE SALL, the future competitiveness of the African economies, ED. Karthala, Paris, 1999, pp. 234-235.

* ⁽⁶⁹⁾ To refer mutatis-mutandis to: HOUIN R., PEDAMON Mr., Commercial law, 8th ED. Dalloz, Paris, 1985, p. 110 and S., MESTRE J., Handbook of commercial law, 18th ED. LGDJ, Paris, 1986, p. 53 and S., RHEINHARD Y., Commercial law, 3rd ED. Litec, Paris, 1993, p. 63 and S., GERMAN Mr., RIPERT G., ROBLOT R., Treaty of commercial law, Volume 1, 15th ED. LGDJ., Paris, 1993, p.168 and S., LEGEAIS D., Commercial law, 11th ED., Sirey, Dalloz, Paris, 1997, p. 35 and S.

* ⁽⁷⁰⁾ NTUMBA LUKUNGA and OLELA NONGA, the abstract one in the Congolese economy. Discussion around two theses, in social Movements and stakes number 3, January-February 2002, p. 79-80.

* ⁽⁷¹⁾ Article 5, it is a question: trade of the interior (wholesale, wholesale trade, of detail and sales departments) and (transit and export, import trade).