Criminal protection of stock exchange in Algerian
legislation and comparative law
Summary message of the doctoral thesis Introduction
by (Hamza abdelouahab),and Discussed at
the University of Annaba at 17-06-2014 under supervision of doctor boukhil
lakhder Professor of Higher Education at the University of Badji Mokhtar-Annaba.
Introduction:
The
existence of a market for securities in Algeria is relatively recent because of
the nature of the economic system that prevailed after independence, in which
the State was dominant on all aspects of the economic activity.
This
option has been enhanced by devoting a legal system that supports the ideology
of the socialist system which is characterized by state ownership of the tools
of production as a provisional goal. These principles had been achieved in the
1976 Constitution, which put all legal barriers to prevent the free movement of
the economy and the most prominent example of this principle of a unitary of
the national property and not making withdrawals.
But
the public starts to appear after 1988 and the type of private management appears
to restructure and reorganize institutions and public companies into the form
of private business companies by shares,
-This new trend has been proven by the
announcement of the constitutional founding in 1989 of the principle of dual
national property and the possibility of disposal of the private national
assets. That what has been concretized by the model law, a law of national
property.
Due
to this new economic climate and the role of Stock Exchange in ensuring
economic financing, as the Algerian state is entering in the economic and
industrial renaissance to be out of the economy mainly based on sociological
criteria, rather than on purely economic criteria, they need undoubtedly the
existence of this financial institution in order to provide the industrial and
commercial institutions, with the necessary capitals, stored by individuals and
companies and making people trust in the stock market, which push them to deal
with.
The
Constitution of 1989 has established a liberal economic system and the
principles of the movable stock exchange values of the emerged through the
executive decrees no.: 91/169, 170 and 171, of 28 May 1991, which soon obtained
the legal system of the Stock Exchange, under the Legislative Decree no. 93-10
of 23 May 1993 on the Stock Exchange movable values, modified and completed by
the order no. 96-10 of 10 January 1996 and by the law 03-04 of 17 February 2003.
-If Algeria has announced his adoption
of the market economy since the issuance of the Constitution of 1989, which is
characterized by leaving the initiative to the private. That doesn’t mean that
the role of the State is absent which organizes the economic activity without
interfering with it. It only imposes some economic priorities through the
so-called economic control based on the overall economic system, which aims to
achieve two main objectives: the organization of economic activities and the
development of the limits of economic freedom.
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If
the protection of dealers in the stock market and its trading mechanisms are
essential to ensure the efficiency of the stock market, the scope of this
protection was limited in Jurisprudence Comparative and Legislation. Some of
them propose to suppress behaviors that are harmful for the financial market by
making sufficient civil and administrative sanctions in order to ensure optimal protection of the
financial market, and some of them felt that this protection is not enough, and
that it should interfere with the criminal law to extend criminal protection on
the activity of the stock market, basing on the view that the criminal
protection is more necessary in a free economy than the system in the planned
economy system, especially after the results of the trade investigations in the
United States showed after the events of recession in 1929 which showed that
the most important cause is that dealers stock exploited privileged information
of currency bills before making them available to the public, and absence of
government supervision on the Activity of the stock market .
From
the beginning, the Algerian legislator decided along the lines of comparative
legislation to extend the protection of criminal operations on the stock market
in order to protect their capital and to ensure the transparency of economic
transactions on the other hand, as it is the basis for the establishment of a
free economy
Problem:
In
this thesis, we will deal with the subject of criminal protection for the stock
exchange in the Algerian and compared legislation, as stipulated by the
Algerian legislator in the Legislative Decree: 93-10 of May 23rd, 1993 amended
and supplemented. In order to identify the aspects of criminal protection
established by the Algerian legislator for the stock market, and if this
protection can ensure the transparency of transactions and integrity within the
stock market, thus after a comparison with the French, English, Egyptian and
the UAE legislations to finally propose the amendments for the Algerian
legislation, according to the conclusions of the comparative study, to achieve
optimal protection of the bullish stock market in Algeria, which is expected to
play a central role in financing the economy.
Importance of the object;
- The importance of choosing the object
in the role of the stock market in economic life to attend the attention of the
legislator through the extension of criminal protection, contrary to the rest
of the objects of economy and which are in majority subject to administrative
and commercial suppression tools. Thus, the criminal protection becomes the
state tool for interfering in the functioning of the stock market operations,
which helps in improving their performance.
We
shouldn’t forget the theoretical importance of the subject of criminal
protection of securities exchange in the Algerian legislation, as the subject
is yet new, but also the absence of the culture of dealing in the stock market
in the Algerian economic system, which starts to impose itself little by
little. The newness of the subject create some legal problematic that are
necessary to be studied especially with the lack of judicial record and
Algerian jurisprudence studies, which made the study of this subject difficult.
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Methodology of the study
I
adopted for the study of the subject of the criminal protection of the stock
market securities in the Algerian and compared legislation on the analytical
method of legal texts organizing the subject from its different aspects, as
well as I adopted in this study the comparative methodology
Plan
Preliminary
Title: The legal system of the Algeria Stock Exchange in terms of organization
and activity
Chapter
I: History of Creation of the Algerian Stock Exchange
First
topic: Pre- privatization public economic institutions
The
second topic: Post- privatization public economic institutions
CHAPTER
II: LEGAL AND REGULATORY FRAMEWORK AND TRADING MECHANISMS OF ALGERIA STOCK
EXCHANGE
First
topic: Legal and regulatory provisions of Algeria Stock Exchange.
Second
topic: Securities and manner of their circulation in the Stock-exchange
TITLE
I: OFFENSES AGAINST THE TRANSPARENCY OF TRANSACTIONS IN THE STOCK MARKET
CHAPTER
I: THE CRIME OF DIVULGATION OF COMPANY’S SECRETS
First
topic: Material element in the offense of divulgation of company’s secrets
Second
topic: Moral element in the offense of divulgation of company’s secrets
Third
topic: Responsibility and penalty for the crime of divulgation of company’s
secrets
Chapter
II: the crime of spreading false information or fallacy among the public.
First
topic: Material element of the crime of spreading false information or fallacy.
Second
topic: Moral element of the crime of spreading false information or fallacy.
Third
topic: Responsibility and penalty for the crime of spreading false information
or fallacy.
TITLE
II: OFFENSES AGAINST STOCK EXCHANGE OPERATING RULES.
CHAPTER
ONE: THE CRIME OF ILLEGAL BUSINESS PRACTICE IN THE STOCK MARKET
First
topic: Material element of the crime of illegal business practice.
Second
topic: Moral element of the crime of illegal business practice in the stock
market.
The
third topic: Responsibility and penalty for the crime of illegal business
practice in the stock market.
CHAPTER
II : THE CRIME OF ILLEGAL TRADING values transmitted
First
topic: Material element of the crime of illegal trading values transmitted.
Second
topic: Moral element in the crime of illegal trading values transmitted.
Third
topic: Responsibility and penalty for the crime of illegal trading values
transmitted
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TITLE
III: Assessment of criminal protection in the Algerian legislation in the light
of some European and Middle Eastern legislation models.
Chapter
One: Criminal protection of the stock exchange in France and England
First
topic: Legal parameters of the criminal protection system of the stock exchange
in the French legislation.
Second
topic: Legal parameters of the criminal protection system of the stock exchange
in the English legislation.
Chapter
II: Criminal protection of the stock exchange in Egypt and in United Arab
Emirates.
First
topic: Criminal protection of the stock exchange in Egypt
Second
topic: Criminal protection of the stock exchange in the United Arab Emirates.
Conclusion
At
the conclusion of this study, which we dealt with the criminal protection of
the stock exchange in the Algerian and Comparative legislation, we have
highlighted the criminal protection established by the Algerian legislator for
the stock market system parameters and this compared with what was reached by
comparative legislation, particularly in developed countries, which have known
several judicial applications.
But
it noted that the Algerian legislation was amended by Legislative Decree no.
93-10 of 23 May 1993 by the order no. 96-10 of January 10th, 1996 and by virtue
of the law no. 03-04 of February 17th, 2003. We didn’t find preparatory works
of these two laws amending and completing the Legislative Decree 93-10 or the
motives that brought the legislator to intervene, that there is no judicial
record in this area.
As
well as that the study showed that the French legislation, for example, knew a
gap in the criminal responsibility of the moral person concerning the crimes
for the stock market, then the French legislator remedied this gap, but the
Algerian legislator didn’t address it. .
If
the compared legislations aspire achieving optimal system of criminal
protection of the stock market basing on the legislative perfection idea.
However, this is very relative as the legislative perfection is a philosophical
idea rather than a reality because the legislation is positivist.
The
shortcomings in the Algerian legislation, which we treated, could weaken the
system of criminal protection the stock until the legislature interfere with
and complete the deficiencies.
Through our study of the subject, there were a lot of observations we pointed to in a timely manner. We can collect them in this conclusion in the form of a summary of this study and it is perhaps a contribution to the development of the legal texts governing the subject.