L'économie informelle

Paragraph 3 : Presentation of the legal situation of

DRC on the small trade of 1990 to our days

Of entry of play, it sied to stress that the period which extends from 1990 to our days was tumultuous with regard to the application of the regulation on small trade.

Indeed, the legislator expresses himself to the point in article 19 of the ordinance-law n°90-046 of bearing 8 August 1990 regulation of the small trade that: «Are repealed, the ordinance-law n°79-021 of August 2, 1979 like all the contrary provisions legal and lawful former to the present ordinance-law».

In spite of the clearness of this provision, the authorities under the mode of president Laurent Désiré Kabila will be évertueront to show that only the ordinance-law of 1979 continues with régenter the small trade in DRC.

For them, this ordinance-law promulgated forever with the Official Journal and only moreover instead of being signed by fire chair Mobutu, it will be just initialed.

We are in front of a case of figure which was not to make run such an amount of ink and about saliva because it is much more than one polemic of the policies which often tend to twist sews it with the right. Population, mainly made up of illiterate; is in front of a imbroglio bus not knowing with which legislation to be attached. It is rightly that we paraphrase Montesquieu which affirms that the useless laws weaken those which are necessary and Guyon to add that the right is likely to become an obstacle whereas it should be stimulative ^(112(*)).

We think that it is necessary to be parked to advance tinted reflections of an outrageous juridism in a also important and significant field which is the small trade. To nowadays admit that nonthe publication of a law to the Official Journal can result in cancelling its legal existence is an aberration.

It is the same for the signature which as the paraph affixed by late president Mobutu has another objective to only certify exact or authenticates the ordonnace-law of August 08, 1990.

Moreover, the craftsmen of this polemic contradict themselves because in their speeches, they constantly refer to the sales turnover; drawn criterion of the ordonnace-law which they them even described as non-existent.

Far enfaut to pour in this discussion because, the ordinance-law of August 08, 1990 exists indeed; let us see now how to reform it to fight against the nocuity of the abstract practices.

Section 2: Reform of the ordonnace-law of August 08, 1990 on the small trade like technique of fight against the abstract economy

This section has the merit to analyze the aforesaid ordinance and to formulate proposals of light ferenda likely to thwart the exercise of the abstract activities. This study will be undertaken in three paragraphs.

Paragraph 1 : Definition and object of small

trade according to the ord.- law of the 08

August 1990

A. Definition of the small trade

Within the meaning of present the ord. - law, by small trade one understands the trade carried out by the sale of the goods in small quantity and whose monthly total value does not exceed four hundred and thousand zaïres.

Are comparable with the small trade and subjected to the provisions of this ordinance-law, the artisanal companies whose monthly sales turnover does not exceed four hundred and thousand zaïres as well as the provisions of services in the measurement or the monthly sales turnover is not higher than 200.000 zaïres ^(113(*)).

1. Critical appreciation

This ordinance-law puts forward the definition of the small trade of the objective criteria : « ... quantity and the monthly total value of the goods which should not exceed 400.000 zaïres ».

The legislator thus refers to the quantity but also to the value because to limit itself to the quantity would be to open a breach with the fraud and to fall down to the gaps of the ord. - law of August 2, 1979.

Thus, an individual who would sell of place in place a small quantity of goods whose monthly total value is 30.000.000 of zaïres, value largely higher than 400.000 zaïres will not be subjected as under old the ord. - law with the mode of the license but with that of the register of trade which is much taxable for the tradesman and thus very lucrative for the State.

However, the expression in small used quantity by the legislator is of too. Goods are known as small not according to the mass which it constitutes but when its monthly sales turnover does not exceed 400.000 zaïres.

A ton of shoddy goods will thus be subjected to the mode of the license if the monthly total value of its goods does not exceed 400.000 zaïres.

We thus note that the criterion determining here is the sales turnover and not the quantity of goods. From now on, will be regarded as small trade and subjected to the tax department, all the commercial activities included/understood within the limits fixed by the ord. - law under examination.

2. Suggestion

Having affirmed that the criterion determining in this definition is the sales turnover and not the quantity of the goods, we propose the suppression of the expression «in small quantity» used in the definition of the small trade.

Art 3 Al ler of this ord.- law should be made out as follows: «Within the meaning of present the ord. - law, one understands by small trade, the trade carried out by the sale of the goods whose monthly total value does not exceed 400.000 zaïres».

Considering the ratio legis of this ordinance-law was dictated with the aim of widen the taxability, by multiplying the taxes, which strike inter alia the activities of the small abstract trade. The State must overcome these egoistic interests and take account also of those of abstract small shopkeepers who need a regulation adapted to their situation. It is in this tread that the State with several degrees is considered to be an actor of the abstract one, either while being itself abstract craftsman, or by facilitating its exercise ^(114(*)).

Let us examine now the object, i.e., the matter on which carries the small trade.

B. From the point of view of the object

There exists as for the object of the small trade a clear demarcation between the ord. - law of 1979 and that of 1990.

Indeed, the old text took account of the nature and the form of the activity carried on to determine the object of the small trade.

The new text as for him, stresses the monthly sales turnover which is an objective and total criterion. This one, should not be higher than 400.000 zaïres for the achieved commercial activities and it should not be higher than 200.000 zaïres for the rendered services.

Speaking about the object of the small trade, the legislator of August 8, 1990 holds account only sales turnover which is a criterion objective and globalisant.

Objective, this criterion is insofar as it subjects without distinction to the influence of the news ord. - law all gainful employments included/understood within the limits fixed by it.

Globalisant, this criterion is insofar as we think that it is in particular the result of the following subjective elements: the number of employees, quantity of equipment used, the quality of the rendered services

Rose in her principles, the entant sales turnover that - criterion of determination of the small trade proves to be morose in its application. The first results from the difficulty of the determination from this sales turnover considering that the news ord.- law removed the obligation of the behavior by the small shopkeeper of a summary accountancy which the ord recommended.- law of August 2, 1979 ^(115(*)). The second results from the impossibility of fixing of a stable sales turnover taking into account the chronic monetary inflation noted as a R.D.C.

2. Suggestion

Under article 19 of the ord.- law under examination: «Are repealed, the ord.loi n° 79-021 of bearing 2 August 1979 regulation of the small trade like all the other contrary provisions legal and lawful former to present the ord. - law ».

On this, we note that the object of the small trade such as contents in article 2 al.1 of the ord. - law repealed as in article 2 of the A.I falls null and void since the new text of law holds account only sales turnover.

Nevertheless, it would be desirable in a future legislation to reintegrate the provision of the repealed ord-law relating to the behavior of a summary accountancy by the small shopkeeper.

This on the one hand, to make easy the determination of the sales turnover d' by the proper authority, other to prepare the small shopkeeper called to thrive in his business with the possible behavior of a thorough accountancy.

After having defined the small trade and having presented its object, let us see whether it is necessary to militate for a reform as for the processes which the law for the exercise of these activities requires.

* ⁽¹¹²⁾ GUYON Y., Right of the businesses, 7th ED. Economica, Paris, 1992, p. 971.

* ⁽¹¹³⁾ Article 3 of the ord. - law of bearing 02 August 1990 regulation of the small trade.

* ⁽¹¹⁴⁾ SAMBWA J.F., the Obsam report/ratio: R.D.-Congo: Last poor country of the world? ED. University presses Beautiful special Campus, n°, Kinshasa, 2001, p. 264.

* ⁽¹¹⁵⁾ See item 2 of the art of this ord. - law.