Volume 22, numéro 1, 1981

EN :

This paper surveys references to the family in social legislation, with more specific regard to social security schemes providing coverage to a broad section of the population. Such references are seen as involving two types of questions. First, do statutory references to the family invoke a definite concept of the family cell ? And second, in what ways do family relationships influence one's position under social security legislation ?

Thus the first part of the paper is an attempt to elucidate the concept of the family underlying social security legislation. This is done by considering the legislative treatment of three components of family relationships, which seem to play, either separately or in conjunction, a particularly significant role in statutes of this type : the network of interpersonal relationships that are included in the family, the concept of dependency, and the consequences attributed to cohabitation.

The second part of the paper surveys the impact of family relationships on rights and duties under social security legislation. This part opens with a broad description of social legislation generally, followed by a threefold classification of social security schemes according to the type of economic hazard against which compensation is provided: loss of income, lack of income, increase in needs. The impact of family relationships in each group of statutes is then brought under detailed analysis, and a number of anomalies are pointed out.

The general picture disclosed by the paper is one of severe confusion, both as to the concept of the family itself and as to the impact of family relationships on social security benefits. While inconsistencies of the latter kind may be explained and justified in a number of cases, it seems desirable that a single concept of the family be adhered to in all social security statutes. This, however, should not preclude variations where warranted by the policy of the Act, general standards of morality, or the particular purpose sought by statutory reference to family relationships.

EN :

The power to purchase its own shares by a corporation constitutes the most remarkable innovation in recent company legislations throughout Canada. This article deals primarily with the power to acquire shares under the Canada Business Corporations Act and the exercise of this power, subject to various conditions relating to the corporation's solvency and directors' duties. In a wider perspective, the rights of creditors of the corporation are analysed and the clear transition from a concept of the corporate capital as a trust fund for creditors to a concept of capital as a practical planning device emerges from the analysis.

FR :

L'importance nouvelle accordée au concept de patrimoine par l'Office de révision du Code civil prend pour point de départ le concept opposé de personne. Dans le but d'éclairer la nature exacte de cette opposition, la présente étude se penche sur l'évolution du concept de patrimoine du droit romain à nos jours. C'est ainsi que de la notion de Patrimonium, dont l'unité est avant tout procédurale, l'auteur remonte au Code Napoléon qui lui ne traite qu'accidentellement du patrimoine dans une perspective davantage utilitariste que transcendentale. L'auteur aborde ensuite les commentateurs du Code, en particulier Aubry et Rau, Zachariae et Savigny, lesquels élaborent une véritable théorie du patrimoine. Avec le Code civil du Bas-Canada, enfin, qui tout comme le Code Napoléon, n'accorde qu'une importance mineure au concept de patrimoine, l'auteur complète son analyse historique pour critiquer ensuite le Projet de Code civil qui prétend corriger certaines distorsions apportées au concept original de patrimoine. En effet, l'oeuvre de l'Office de révision, ainsi que le souligne l'auteur, n'est pas elle-même dépourvue d'ambiguïté.

EN :

In this study, the authors examine various models for reviewing the system and procedural framework of administrative action in Québec. Firstly, they explore the solutions previously advanced as far as Québec is concerned, then those that have been adopted in other jurisdictions. Next, after identifying the principle decision-making agents of the administration, they enumerate the other factors to be considered in devising a model system, such as the assigned powers of the decision-makers, their procedure, the rules controlling their decision-making, and the establishement by the decision-makers of norms governing the exercise of their discretionary powers.

These parameters having been determined the authors go on to evaluate, from various aspects, those solutions that have already been proposed and also others which offer themselves for consideration. In that regard, after discussing the classification of administrative bodies, they analyse the merits of a single or dual jurisdictional authority from the structural and constitutional perspective ; they pause to examine the very notion of administrative authority before going on to deal with the issue of an overall control of administrative bodies, such control being exercised by means of an Administrative Council. Then, after discussing the power given to an administrative body or agency to review its own decisions, they analyse the controversial issue of administrative procedure ant the codification of those rules, and go on to propose, as a possible solution, a flexible codification that is restrictive in part yet adaptable to the individual circumstances of the bodies concerned.

In concluding that the existing patchwork of administrative decisionmaking must be satisfactorily resolved, and before indicating what corrective action should be studied, they attempt to identify the questions that have to be answered before undertaking review of the system and procedural framework of administrative action, the need for which review having been seen as imperative right from the outset.

EN :

Even though the partnership of acquests has been in force for over eleven years now as the official matrimonial regime in Quebec, only few legal articles and cases have considered this matter up to now. The present study attemps to fill partly this void by looking at the relationship between consorts married under this regime and their secured creditors. After an overall view of privileges and hypothecs, the author analyses the numerous situations that can arise according to whether the consorts act together or separately, according to the nature of the privileges, according to the nature of the goods, etc.