Criminal protection of stock exchange in Algerian legislation and comparative law

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.

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