L'économie informelle

C. Conditions and sanctions

1. Conditions of exercise of the small trade

As we already evoked, the access to the commercial profession as a R.D.C. is governed by the principle of the freedom of trade. Any person can contract if it is not declared unable by it by the law.

Are famous incompetents to achieve commercial acts:

has) The married woman

It results from art 4 of the Decree of August 2 1913 that « the married and nonseparate woman of body cannot be commercial without the assent of her husband ». Insofar as the code of the family (law n° 87-010 of August 1, 1987), does not envisage the mode of judicial separation, this text should from now on be read as follows the married woman cannot be commercial without the assent of her husband ^(83(*)). It is also the point of view adopted by the Organization for the harmonization of laws of the Businesses in Africa «OHADA» when it removes the distinction between husband and woman in the attribution of the quality of tradesman ^(84(*)).

In Belgium, the law of June relating to the rights and respective duties of the husbands and the marriage settlements devote the principle of the equality of united in front of the law ^(85(*)).

Each husband can thus follow an occupation, an industry or a trade without the assent of joint sound ^(86(*)).

However, if the spouse estimates that this activity is likely to carry a serious damage to its moral or material interests or those of the minors, it has a right of recourse in front of the Court of first authority ^(87(*)).

Professor Masamba Makela notes that it should be hoped that our right will evolve/move in a direction more compatible with the emancipation of the woman Congolese and in conformity with realities of our time (important role of the commercial women, equality in right) ^(88(*)).

Can one of light ferenda, to take as a starting point the the position of the beige legislator? Our answer is negative.

Indeed, the Belgian legislator intervenes downstream i.e. follows to the refusal of multiple authorizations of the men, it makes it possible the married woman to freely exert the free trade with the husband to be opposed to it if it notes that these interests or those of the minors are likely to be been prejudicial following the exercise of this activity by his wife.

What will it occur for husbands having subscribed to a mode other than that of the separation of the goods, if the marital intervention proved to be late and that the woman is already declared in bankruptcy?

The Congolese legislator seems more elegant to us, because while acting upstream, it returns objectively and identically person in charge in the event of bankruptcy; in addition to the woman, the husband who gave him the downstream to trade. However, as regards authorization, it is appropriate that the husband can act in accordance with the reason rather than with the feelings.

b) The minor

Two categories of minors coexist, the minor not émancipé and the émancipé minor.

The minor not émancipé is old less than 15 years, it cannot be commercial, the majority being fixed at 18 years. If it trades in spite of its incapacity, it does not become for as much not trading, therefore insusceptible to be declared bankruptcy.

The émancipé minor is at least 15 years old of age and is considered major. On this, it has the right to trade provided that it requires beforehand the authorization of the person who exerts on him the paternal authority or guardian. The emancipation is legal or legal ^(89(*)).

c) major incompetents

We will examine on the one hand the interned or prohibited lunatic and on the other hand, the spendthrift and the weak one of spirit.

The prohibited lunatic and internee are in the same situation with regard to their capacity as the minor not émancipé. He is to them interdict to make the trade ^(90(*)).

As for the nonprohibited lunatic, nothing makes obstacle so that it exerts the trade since it is major. Nevertheless, as from the moment when its madness is established, its acts cease being valid.

Speaking about the spendthrifts and the weak ones about spirit being juridically able, can with the proviso of being major to exert the trade under the control of their curator.

Considering the small trade is addressed to a specific category of the commercial activities in their globality, it is obvious that the general condition of capacity is to him ipso facto applicable.

It is with bitterness that we note the presence of (married women not - authorized, of the minors of less than 15 years) guided by the logic of survival to get busy without protection with the exercise of the abstract activities.

However, as an economic activity distinct from the trade in general, the exercise of the small trade is made conspicuous by the fact that it is subordinate only to the detention of one « license » that we define in the lines which follow, we show its characteristics, the conditions of its obtaining, the authority entitled to deliver it, the obligation which it imposes to the tradesman as well as the people who are exempted by it.

2. Definition of the license

Although the license is not defined by the law, the doctrines teach that it is a question of an authorization of carrying on a commercial activity realizing payment of an annual amount of money in the State ^(91(*)). The license revêt following characteristics:

has) It is personal and personal

That wants to say that it can contain only the identity of its holder. It cannot thus be yielded nor lent ^(92(*)).

b) It is restrictive and territorial

That means that it covers only the activity y consigned and is operational only in the administrative unit for which it was delivered ^(93(*)).

c) It is obligatory and preliminary

Here, the explanation refers to the fact that the exercise of the small trade is subordinate only to the detention of a license ^(94(*)), the small shopkeeper must have about it before the beginning its activities.

D) It is temporary

I.e. it is valid only for one year. It expires on December 31 of each year and must be renewed at the latest the 31janvier of the following year ^(95(*)).

It is necessary to raise on this subject that the law grants to small shopkeeper one month more in order to allowing him the update of its license.

E) Lastly, it mentions the names, residence and nationality of the holder as well as the commune in which he exerts the trade, corporate name under which it acts and the nature of its operations ^(96(*)).

Let us see now the conditions required for obtaining the license. Those will enable us to appreciate their attraction or loathing to support formalization.

3. Conditions of obtaining the license

The license only that can obtain which justifies:

has) To be of Congolese nationality

The license is exclusively reserved to the tradesmen, people physical, of Congolese nationality,... ^(97(*)). This assertion, excluded from office of the small trade; the foreigners who are not the least in the exercise of these activities, companies of Congolese right even made up entirely by capital belonging to the nationals.

b) To be holder of an average instruction

Indeed, to exert the small trade, the applicant must « To know to weigh and measure the products correctly, to correctly calculate the sale or purchase price, to hold an accountancy at least summary of its commercial deals ^(98(*)) ».

c) To be holder of equipment of necessary work

The applicant small shopkeeper must: « to have of measurements of capacity and length, of the weights and the instruments of weighing provided for by the laws or the regulations and necessary to its commercial activity ^(99(*)) ».

D) Not to exert functions incompatible with the exercise of the small trade

The potential small shopkeeper should be neither a magistrate, neither agent of the public or para-étatiques services, nor the wife or an intermediary of the one of these people ^(100(*)).

Let us note that this incompatibility does not strike nullity systematically the irregular acts: these acts do not remain valid about it with regard to the thirds in good faith, which can be prevailed of the acts achieved by a person in situation of incompatibility (while this one cannot be prevailed about it) ^(101(*)).

E) Not to be condemned to an infringement relating to the businesses

The candidate small shopkeeper must not be condemned since less than 3 years of the chief of flight, breach of trust, fraud, swindle, forgery in writings, use of forgery, illegal alcoholic beverage sale etc has a sorrow of 3 months principal penal constraint or more ^(102(*)).

F) To have paid the required annual tax

The delivery of the license is subordinated to the payment of renewal fees whose amount is fixed by the Police chief of State at Finances according to the categories of activities that it determines ^(103(*)).

After having arisen the conditions required for obtaining the license, let us see now the person having quality to deliver it, the categories which are exempted by it, etc

4. Authority entitled to deliver the license

The concern being of making seize the small shopkeeper on the level of the Commune, the license is delivered, according to the cases, by the Police chief Urbain, the Sous-Régional Police chief Urbain, by the Police chief of Zone, or their Delegate, according to whether it is asked by the spring of the Town of Kinshasa, by that of an Urban Under-Area or that of a rural Zone ^(104(*)).

5. Obligations of the licensed tradesman

The licensed tradesman is held to present his license at the requisition of any representative of authority ^(105(*)).

This expression is too elastic because it supported the encroachment of functions which is the interference of an administrative authority in attributions of another administrative authority ^(106(*)).

6. Exempted people of the possession of the license

Are exempted license, the small farmers and stockbreeders who, occasionally, at the days fixed by the local Authority, will sell on the public markets of the products of their food crops, their fishing, their breeding or the gathering.

In the same way are exempted license, the travelling merchants of products for human consumption such as peanuts, cigarettes, etc carried in hand provided that they do not have no stall, as well as the shoeshiners of shoes or the newsvendors to shouted having either stall ^(107(*)).

Since the sale by the farmer of the goods of his field is civil by tradition and not a commercial act, the subparagraph first of this article does not have its raison d'être because one cannot exempt one not trading with the payment of the license.

Speaking about the subparagraph two of this same article, the concept of exemption is worth because the categories y quoted are commercial by nature but become taxable only when they have a stall.

The normative guarantee being in on this side true guarantee, obligation is made to us resort to the jurisdictional guarantee to make it respect.

D. Sanctions in the event of violation of these conditions

Each one admits that the businesses are the engine of the economic life and the source of the national richness and that it is advisable to sanction what can distort the play of it, to carry reached to their credibility by fraudulent practices ^(108(*)).

Are analyzed in this point the sanctions civil, administrative and penal.

1. Civil sanction

Nullity is the sanction incurred by any individual who will pose an act of the small negotiability to the contempts of prescribed relating to the general condition of capacity.

2. Administrative sanction

The administrative sanction is is the work of the delivery court or the authority of the license.

has) Legal and obligatory withdrawal

The withdrawal of the license will be obligatorily pronounced by the judge when its holder is condemned to three months at least of penal constraint for one of the infringements listed in the article 5-5° of this ordinance-law ^(109(*)).

This infringement consists in not being condemned since less than 3 years of the chief of flight, breach of trust, fraud, swindle, forgery in writings, use of forgery,..., with a sorrow of 3 months principal penal constraint at the maximum.

b) Administrative and optional withdrawal

This withdrawal can be also decided by the Authority which delivered the license if its holder falls into one from the cases envisaged by the article 5-1° to 4° i.e. :

1° to be of Congolese nationality;

2° to know to weigh and measure correctly the products ;

3° to have measurements of capacity and length;

4° not to be neither a magistrate, nor agent of the public or para-étatiques services.

This withdrawal can also be marked if the holder of the license refuses to subject himself to the control organized by this Authority or the delegate of the Office of Promotion of Small and Medium-sized companies, the Public prosecutor or the Police chiefs of State to Finances and the National Economy, Industrie and Trade ^(110(*)).

3. Penal sanction

Whoever will have sold or exposed on sale goods, exploited an artisanal or swift company of the services aimed by present the ord. - law without being provided with a valid license will be punished of 6 months a penal constraint to the maximum and of a fine of 1.000 zaïres to the maximum or one of these sorrows only.

The judge will pronounce moreover the confiscation of whole or part of the goods ^(111(*)). Let us be all, in spite of the existence of a multitude of sanctions, the exercise of activities concerned with the small trade are undertaken in an abstract way and in all impunity.

Quid of the state of place under the ordinance-law n° 90-046 of August 08, 1990?

* ⁽⁸³⁾ MASAMBA MAKELA, Right of the businesses, tallies legal of the life of the businesses in Zaire. ED. CADICEC (Kin.), 1996, p.54

* ⁽⁸⁴⁾ SANTOS P., Commentaire of the art of the uniform act of 17 April 1997 relative to Owes Commercial General, in Treaty uniform and uniform Acts with accompanying notes and annotated, Juriscope OHADA, p.100.

* ⁽⁸⁵⁾ OF CLERRCQ, Synthesis of the commercial law, ED. De Boeck, Brussels, 1988, p.9.

* ⁽⁸⁶⁾ CASTELAIN L, Elements of Commercial law, ED. Of Book-Brussels, VIIIème ED., 1970, p. l6.

* ⁸⁸⁷⁾ Idem, p. l6.

* ⁽⁸⁸⁾ MASAMBA MAKELA, op.cit., p.57.

* ⁽⁸⁹⁾ MASAMBA MAKELA, op.cit., pp. 57 and 58.

* ⁽⁹⁰⁾ COMLAN A., Treaty of Congolese Commercial law, Volume 1, N.E.A, S.D., Paris, p.36.

* ⁽⁹¹⁾ NGUYEN CHAM THAM and Co, Lexicon of Right of the Zairean businesses, P.U.Z., Kinshasa, 1972, p.194.

* ⁽⁹²⁾ Art 3 al.2 of the ord. - law of bearing 2 August 1979 regulation of the small trade.

* ⁽⁹³⁾ Idem, al.1.

* ⁽⁹⁴⁾ Ibidem, Art al.1.

* ⁽⁹⁵⁾ Art 10 of the ord. - law of bearing 2 August 1979 regulation of the small trade.

* ⁽⁹⁶⁾ Art 4 idem.

* ⁽⁹⁷⁾ Art 1 the AD INTERIM one of execution of the ord. - law of August 2, 1979.

* ⁽⁹⁸⁾ Art al.2 of the ord. - aforesaid law.

* ⁽⁹⁹⁾ Art 4 Al 3 of the ord. - law of bearing 2 August 1979 regulation of the small trade.

* ⁽¹⁰⁰⁾ Art of the ord. - law of bearing 2 August 1979 regulation of the small trade.

* ⁽¹⁰¹⁾ TIGER P., right of the Businesses in Africa, 3rd ED., PUF, 2001, p.55.

* ⁽¹⁰²⁾ Art al.5, of the ord.- law of bearing 2 August 1979 regulation of the small trade.

* ⁽¹⁰³⁾ Art al.1, idem.

* ⁽¹⁰⁴⁾ Mutatis-mutandis To read art Al 1 of the ord.- law of bearing 2 August 1979 regulation of the small trade.

* ⁽¹⁰⁵⁾ Art, Ibidem.

* ⁽¹⁰⁶⁾ For more information, Lira KABANGE NTABALA, Administrative law and administrative institutions, Volume I, 1997, p. 33.

* ⁽¹⁰⁷⁾ Art of the bearing Decree interdépartemental execution of the ord. - law of August 2, 1979.

* ⁽¹⁰⁸⁾ MINNOW Mr., criminal Law of the businesses, 2nd ED., Armand Colin, Paris, 1997, p. 13.

* ⁽¹⁰⁹⁾ Art of the ord. - law of bearing 2 August 1979 regulation of the small trade.

* ⁽¹¹⁰⁾ Art al.2 of the ord. - law of bearing 2 August 1979 regulation of the small trade.

* ⁽¹¹¹⁾ Idem, art 12.