L'économie informelle

A. Definition and object of the small trade according to the ordinance-law n° 79-021 of August 02, 1979

1. Definition

Within the meaning of the present ordinance-law, by small trade, one hears the trade of all food products, goods or current objects of consumption carried out by the sale or the offer of sale to the purchaser either in the residence even of the salesman, or of door in door or place in place, or still on the public highway or the public markets, except if the graver or the stall placed on the public highway constitutes the prolongation of a store.

Are compared to the small trade and subjected to the provisions of this ordinance-law, the small transport of people or goods like very undertaken

artisanal being located within the limits fixed by joint decree of the Police chief of State at Finances and the Police chief of State at the National Economy, Industry and Trade ^(72(*)).

a) Critical appreciation

From entry of play, it comes out that this definition was superfluous in its form because the word food products employed could there hold place of goods concerning the sale or the offer of sale of the foodstuffs.

It also should be raised that the basic criterion retained by this definition is not determining.

Indeed, the legislator of this time had taken care to enumerate with precision of the activities legally making parts of the small trade as well as the processes by which these activities are exerted.

This legal enumeration was happy only at its bus beginnings with the wire of time, following the reasons of an economic and social nature (unemployment, reasonableness of the wages to see its inexistence...) will make what emerges to its margin the exercise of a long string of small gainful employments known as abstract.

The legal enumeration is of strict interpretation, one puit to regard as small trade the unnamed activities by it, even if if logically they were to form part of it. Legislative work by its gaps supported tax avoidance and thus contributed to the extension of the abstract practices.

The example of the faussilleurs, brick-makers, chargers in carpark etc who exerted lucrative microphone-activities in margin of the law while escaping the tax department is eloquent.

Concurrently to these microphone-activities, existed those highly lucrative which although having a consistent capital, remained subjected to the mode of the license, because accomplished according to the processes legally necessary for the exercise of the small trade.

It is the case of an individual who would sell of door in door of the luxury articles is regarded as small shopkeeper and subjected to the mode of the license taxable to him and not very advantageous in the State because source of tax avoidance.

b) Suggestions

Rather than to proceed by a legal enumeration of the remainder, nonexhaustive and favourable for the abstract practices, it had better been to seek objective criteria being able to make it possible to detect than an activity concerns or not the small trade.

2. Object

Under the terms of this ordinance-law, the small trade has as an aim the trade of all food products, the goods or objects of everyday consumption, the company of people or goods, the artisanal company ^(73(*)). Let us see now what one understands by:

has) Trade of all food products

The small trade relates to the food products i.e. on any thing likely to support the survival of the men and the animals.

b) Goods or objects of everyday consumption

In this context, goods mean any movable object or very product finished likely to be sold and bought in the trade.

This definition includes all the body things circulating on the market, which they are or not the result of a human or mechanical activity ^(74(*)).

Only are excluded, the incorporeal pieces of furniture, the such rights, the credits, the actions, shares and interests, the revenues and goodwill ^(75(*)).

Let us note that in Congolese right, the major element of the small trade is the goods apprehended under the angle of object of everyday consumption which gives a character useful and necessary to him to the satisfaction of essential human needs.

c) Haulage company of people or goods

Transport air, maritime, river and lake or terrestrial and railway the same objective continues : to ensure the displacement of the people and/or the goods ^(76(*)).

The haulage company in question here is that which does not comprise more than 10 motor vehicles of less than 7 tons used like taxis, fula-fula or others, like very haulage company having only vehicles without engines ^(77(*)).

D) Artisanal company

The artisanal company is very undertaken of production and marketing, not employing more than ten workmen and not having production machine tools automatic or semi-automatic ^(78(*)).

E) Trade of restaurant and small hotel ^(79(*))

Here, the term restoring indicates very undertaken restoration held by three workers to the maximum and not comprising more than 20 places.

By small hotel, one understands very undertaken hotel classified of last category and not comprising more than 10 beds.

f) Critical appreciation

The legislator made in his work use of the subjective criteria which are the maximum limitation of the number of employees as well as the determination of the quantity and quality of equipment available to the company. Thus for:

- Small transport, the legislator put forward the number of vehicles (10 to the maximum) and their capacity of tonnage (less than 7 tons). For us, the criterion determining was subsidiarily to be the organization and mainly the sales turnover.

This, because a company can be well organized but if it does not have a sales turnover higher than that necessary for the small trade, it will remain subjected to the mode of the license.

On the other hand, a company can have a lame organization but if it gathers a sales turnover higher than that required for the small trade will be seen subjected to the mode of the register of trade.

We can thus conclude that the sales turnover is often and not always function of the organization.

This reasoning constitutes the justifying base of the primacy which we will grant to the criterion of the sales turnover each time we confront it with others.

- The artisanal company, the legislator rather than to aim at the quality of the rendered service and mainly the sales turnover put forward the number of workmen and the quality of the used machines.

- The small restaurant, the legislator rather than to highlight the quality of service, better the sales turnover of the company is restricted to limit the number of workers and the places.

- The small hotel, the legislator instead of highlighting the quality of service, better the sales turnover is limited to present the maximum number of the beds.

g) Suggestion

This law is lacunar owing to the fact that it uses subjective elements levelling off of the number of employer, fixing of quality and quantity of equipment which the company must have. Best would be to resort to objective criteria being able to reduce propensity towards the abstract one.

B. Methods of exercise of the small trade

Under the terms of this ordinance-law, the small trade is that which is carried out either in the residence of the tradesman, or of door in door, or of place in place, or on the public highway or the public markets ^(80(*)).

This trade is thus exerted at varied places which we analyze:

1. In the residence of the tradesman

The residence of any person is with the place where it has her principal establishment. In the absence of the known residence, the current residence produces the effects of them ^(81(*)).

It is here about the procedure by which the small shopkeeper without moving sells his goods with his residence and the customers come there to get some.

2. Of door in door

The trade of door in door is that which consists for the small shopkeeper to go to his prospective customer to sell or propose the sale of a good.

3. Of place in place

The trade of place in place is that which consists in for the small shopkeepers selling only with places and the days fixed by the public authority. This small trade is made conspicuous by the periodicity of its operations and the absence of fixed stalls in a durable way.

4. On the public highway

The public highway is a space of the public domain in particular made up by the streets, the public gardens, the avenues, the pavements, the carparks (not reserved by the public authority with the small trade).

The law compares to the sale on the public highway, the sale carried out in a kiosk or a small of the same room dimension, even established into hard, held by only one person and not offering any direct access to the customers, the sale being carried out by the means of a counter-window ^(82(*)).

5. Public markets

The public markets are places fixed by the local public authority, in which in a permanent way and in the conditions determined by it is practiced, a given activity.

Moreover, the above-named authority fixes the days and the operating hours of these markets.

The public market, in opposition to the public highway is reserved by the official authority with the exercise of the small trade.

6. Critical appreciation

The analysis of the methods of exercise of the small trade in Congolese Right, shows that only the small trade carried out of place in place as on the public market know a regulation of the public authority.

Such is not the case for the door-to-door selling, the sale of door in door and that done on the public highway, places of predilection of the abstract practices which remain dedicated to their sad fate.

7. Suggestion

With the exit of this analysis, we recommend that the use of the methods lately quoted by the fixing of the days is suitably regulated, of the hours, of places, but also of the distance to be respected between the stall and the public highway for the trade y exerted. The criterion of the sales turnover must also be put at contribution. This, we think will allow to identify these actors and by rebound the abuses in the exercise of the small trade will reduce.

* ⁽⁷²⁾ See the art of the ord. - law of bearing 2 August 1979 regulation of the small trade.

* ⁽⁷³⁾ Art of the ord. - law of bearing 2 August 1979 regulation of the small trade.

* ⁽⁷⁴⁾ PINDI MBENSA KIFU, Right Zairean of consumption, ED. CADICEC Kinshasa., 1995, p.44

* ⁽⁷⁵⁾ PINDI MBENSA KIFU, op.cit., p. 45

* ⁽⁷⁶⁾ Idem, p. 44.

* ⁽⁷⁷⁾ Art 2 al.2 of AI. carrying execution of the ord. - law of August 02, 1979.

* ⁽⁷⁸⁾ Idem al.1.

* ⁽⁷⁹⁾ See art al.3 and 4 AD INTERIM bearing execution of the ord. - law of August 02, 1979.

* ⁽⁸⁰⁾ Art of the ord. - law of bearing 2 August 1979 regulation of the small trade.

* ⁽⁸¹⁾ Art of the law n0 87/010 of August 1, 1987 bearing code of the family.

* ⁽⁸²⁾ Art of bearing the Interdépartemental Decree execution of the ord. - law of August 2, 1979 on the small trade.