Le principe québécois de l'impartageabilité de la réserve des coopératives non financières: discussion critique autour du maintien ou de la suppression

Forbidden general reserve sharing among members is mandatory to have, indivisible throughout the existence of the cooperative and subject to the "disinterested distribution upon liquidation or dissolution". The reserve functions as a support lever for the development of the cooperative and the cooperative movement as a whole. The principle of nondivisibility of the reserve is the prohibition to all cooperatives in Quebec to share the general reserve of all members and the prohibition of the decline, including the allocation of any rebate along the existence of the cooperative. Indeed, the nondivisibility of the reserve is based on the idea that the cooperative is not to the accumulation of capital in order to distribute them among members, but it is the creation of a collective capital that benefits all current and future members. If the concept of nondivisibility reserve therefore prohibits the sharing of reserve throughout the existence of the cooperative, the same prohibition takes the name of the disinterested distribution of net assets at the time of the disappearance of the cooperative. This disinterested distribution is in turn the ban on all non-financial cooperatives to share the remaining assets in the disappearance (dissolution or liquidation) of the cooperative except agricultural cooperatives that can decide in this case, distribute the remaining assets to members without knowing the reasons for the exception.  Moreover, the nondivisibility of the reserve is considered a mere legal disadvantage for members and has had some rewrites in co-operative legislation without knowing either the reasons for these changes. The aim of our thesis is to engage a critical discussion around the following central question: given the current legal framework on cooperatives, the principle of nondivisibility the reserve must be maintained as such in the Cooperatives Act, or simply be deleted, as in the corporation, where it is nonexistent without this deletion does not affect the legal concept of the cooperative? Specifically, what is the legal framework and what are the motives which may plead in favor of maintaining or deletion of the principle of nondivisibility reserve? To answer this question, this thesis is divided into two parts. The first part explores the legal framework for non-financial cooperatives in Québec compared with certain legal concepts from other legislation. It examines the legal basis underlying the nondivisibility the Quebec law reserves of non-financial cooperatives. The second part makes a critical discussion around the history of the principle of nondivisibility Reserve (ch. 3), different legal arguments available (ch. 4) and assumptions based around concrete effects available (ch. 5). She exploire these dimensions to support maintaining or not the nondivisibility Reserve current legislation on non-financial cooperatives. Although the research lead to a nuanced response, the overall results rather militates in favor of maintaining the principle of nondivisibility reserve. Previously, the observation of the legal foundations of the underlying concepts in nondivisibility the Quebec law reserves of non-financial cooperatives helped to understand the concepts underlying this principle before answering the question about its maintenance or suppression of current legislation on cooperatives. The discussion made it possible to highlight the importance of a fairly obvious basic reality: this principle allows to preserve the reserve, useful for the development of the cooperative and the cooperative movement as a whole. Moreover, this principle of nondivisibility of the reserve part of the social mission of the cooperative, which is not intended maximizing monetary profit. The nondivisibility Reserve also part of the consistency of Quebec law cooperatives with the concept of cooperatives as defined by the Quebec cooperative movement and the ICA while addressing the historical purposes of fairness between generations and solidarity. Finally, while discussing the arguments of accounting data and illustrations of some interviews with some active members of the cooperative movement does not lead to any firm conclusion, it appears that the nondivisibility the reserve does not dampen the trend rising investment and sales of non-financial cooperatives. This prohibition even be a self-financing mechanism of the cooperative and a symbol of solidarity.

Keyphrases: Liquidation, Dissolution, Fusion, Suspension, Reserve, Nondivisibility, Members, Cooperative, Liquidation, Assets, Disinterested distribution, Dissolution, Interests of the company, Corporation, Corporate social responsibility, Merger, Death, Resignation, Disqualification, Suspension, Shares, Stocks, Preferred shares, Cooperative shield, Cooperative risk, Cooperative agreement, Business, Valuation reserve, Refund, Overpayments, Participating preferred shares