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Faction Bat - Yam 1
vs
State Comptroller
This document was translated by computer software without human contact, so there may be significant errors in translation: please do not rely on the translation without obtaining appropriate advice with a certified Israeli advocate / lawyer
Supreme Court sitting as - High Court of Justice
[2.5.90, 29.5.90]
Before Judges A. Barak, T. Orr, M. Ben-Yair
Act local authorities (funding elections) (provisions Time), 1988, Book of Laws 240, Sections 1 (The term "election expenses"), 4 (a), 4 (b), 4 (c) - Law Associations , 1980, Book of Laws 210, Section 8
Mini - Ratio:
* Associations - legal personality - the essence
* Local authorities - Elections - Election Funding
The petitioner is a municipality faction - the sea. Members of petitioner established an association, which recruited volunteers who helped members of the petitioner in the elections to local authorities. Between the association and the petitioner agreed that if the petitioner will finance about - according to the law local authorities (finance elections) (provisions Time), 1988, fees will be paid to the financing organization. Petitioner participated in the elections and received money to finance election. Following this approach petitioner association expenses for the services petitioner association. After petitioner moved association funds for these expenses, the Respondent requested that these payments are recognized as "election expenses", as defined in Article 1 of the Local Authorities (Elections Funding) (Instructions hour). petitioner's request was denied. Hence the petition. According to respondent, petitioner paid the money to the organization, despite the fact that the association's activities for the petitioner voluntarily made. In his opinion, given the identity of the petitioner paying the association receives payment in light of funds paid to promote the designation of the petitioner paying purposes, this is not about "election expenses" as stated.
High Court of Justice ruled: N.
A.. (1) faction that runs the local authority is a legal personality, but it is not kosher any legal action. Kosher limited areas of activity that founders court determines (at 695).
(2) between the faction and organization, established on - Law of Associations, תש"ם ¬ 1980, there could be legal ties, as is common between the two legal bodies; fact, there is identity between party members and members of the association, does not create an identity between the party organization and is not prevents us, contractual or otherwise, between the faction and the association (695 B - C).
(3) against the first informed of these necessary legal personality independent of the party and the association, requested conclusion that a place that has a volunteer organization to finance expenditures that help to support a faction, the payment for these expenses - by the party organization, following an agreement between them, He paid for "election expenses" that faction (695 d).
At. (1) correct interpretation of the agreement between the petitioner and the association, Danan circumstances, is that the petitioner shall bear expenses
Actually she had the organization; because volunteers worked voluntarily, the organization has no expenses, and therefore no right to the petitioner association for expenses that occurred. Therefore, should not be paid because "election expenses" (696 B - C).
(2) In light of the close practical relationship between petitioner 1 and the association has assumed that the purpose of the agreement between them was to bring that petitioner will pay the organization but the actual expenses that association. It's hard to beat in the absence of clear instructions ¬ agreement between the parties - that the association will pay for the expenses petitioner had not (696 c - d).
C. (1) to petitioner's characterization expenditure has to examine the expenditure for the association, and only if the association's actual spending is on, you can see it also in petitioner execution; distinction between the legal personality of the petitioner and the association's legal personality is retained. However, we "lift the curtain" and features the expense of the petitioner - the components of that expenditure for the association (696 M - 697 A).
(2) "Curtain simulated" It is done in special cases, in order to give valid purpose of the legal norm (legislative, My panic or contractual) began about Akifth to prevent or thwart (697 a - b).
(3) The purpose of the Act local authorities (finance elections) (Instructions hour) is to grant state funding parties factions participating in the election process in the local authority, while setting limits and boundaries of expenditure and income monitoring mechanism for creating ways of financing, all to ensure integrity and purity of elections democracies (697 C).
(4) - According to this end, the faction has to give funding, if - ¬ practice has costs. There is no room for her own expenses, association, assembly and composition of the same faction, no expenses, then determine that there is no faction and expenses, even if the party organization has an agreement according to which party will pay the organization (697 c - d).
Rulings - Dean of the Supreme Court mentioned: in
[1] AE 417/79 Marcus v. Hammer et al, PD Les (2) .337
Rulings - rather English mentioned: and
Great) v. Daimler company Continental tire and rubber company
[2]. . 307A.c
[1916] Limited (britain.. 455A.c
[1906] re Beers Consolidated mines Limited v. Howe
[3] Petition for an order - on - Terms. The petition was rejected.
L. Gora - the name of petitioner;
A. Mendel, senior deputy state prosecutor - as respondent.
Stopped - Dean
Justice A. Barak: N. .1 The petitioner is a faction of five members, ¬ Bat Yam Municipality. Five members, constituting the party petitioner, established (on 8.12.88) association ( "Bat - Yam 1-1989").
The association recruited volunteers, who assisted members of the faction in the election. The association between the faction agreed (with - here), but the party will finance - law local authorities (finance elections) (Instructions hour), Tshm"h - 1988 (hereinafter - Law), to be paid fees funding organization. Yes, it was agreed that If the party fails, the association did not back up from the party for the volunteers work. faction participated in the elections, and won a number of places the council. Gisha faction expenses for the services submitted by the Association faction. faction paid the association for these expenses. Association not transferred the funds to the volunteers, and intends to use which purposes. faction in turn asked that these costs will be recognized as election expenses. "Comptroller refused the request, hence the petition before us.
.2 Ms. Gora named petitioner argued before us that the association is an independent legal personality. Despite the identity between Board Members and members of the faction, it has, associations, its own existence, and there is no fundamental obligation not to recognize the faction of the organization. True, the party and the association did not cut a written contract - as required by the state comptroller - but it does not nothing, since amputation of formal agreement is artificial because such an act, people living behind the organization behind the party are the same people ... it would be ridiculous that such an agreement, if signed, will sign such masters Ehud cinnamon Solomon Weinstock behalf of the association and gentlemen Ehud cinnamon Weinstock Named by faction. On - yes gentlemen chose Ehud cinnamon Solomon Weinstock pretend not to sign such an odd agreement. However, the order book has been written orders of the faction. Moreover, the volunteers were in action without association to pay them, but not enough to free the party from the obligation to pay the association.
.3 Ms. Mandel argued before us, for the respondent, that action is lawful. On - the perception of the respondent, drove the association paid money, despite the fact that the activity was voluntary, and financial funds are not intended to serve as volunteers in return for actions, but they are designed for social and political activities of the faction. Know the respondent, amounts paid for - by the party organization are not "election expenses". Payment was paid the same body composition of the party that pays for assembly, and this association will help to further social and political activities of the association, which is designed to promote the interests of the faction identical. Present identity of the party paying the association receives the payment, in light of the funds paid to promote the designation of party paying purposes, an election is not about publishing.
4 The starting point is the law. Section 4 (a) of the Law establishes the right of a faction funding. Section 4 (b) The law determines which faction will be paid immediately after the election results. Section 4 (c) Law of Attraction states that if the State Comptroller ruled that the election expenses of a faction low amount reaching her by law, the party to return the State Treasury the difference between its expenses and amounts paid to her. "Election expenses" are defined in Article 1 of the law, one language --
" 'Election expenses' - special expenses of a faction or list - including the faction Is - issued during the election campaign or issued before the election period for services and goods received in connection with elections during the election campaign including liabilities for such expenses.
The question is: Do the sums and which party paid the association are "election expenses" of the party? In my opinion, the answer is no, and - so the State Comptroller's position is legally, the petition should be rejected.
.5 Association, established on - Law of Associations, 1980, is "a corporation, all rights minister, required legal action" (Article 8). Faction, which operates the local authority, although it legal personality, it is not kosher any legal action . Kosher restricted areas of court activity that establishes one of the founders. between the faction and the association can, of course, exist in legal relationships, as is common between the two legal bodies. fact, there is identity between party members and members of the association, does not create an identity between the party organization does not prevent us (contracts or other) between the party and the association. For example, if the organization has a financial debt to someone (whether as a result of a contract with a person or an act of tort committed to him, if otherwise), the debt is an obligation and duty of the association of the faction. Furthermore : N. obligation of the association itself is not its duty of its members. on - yes she has a financial debt to the association is in itself a certain debt of Board Members, in any case is also a debt of party members (who identify with Board Members). informed against these first -- necessary independent legal personality of the party and the association - is asked the following conclusion: in a place that has a volunteer organization to finance expenditures that help to support a faction, the payment for these expenses - by the party organization, following an agreement between them, he paid election expenses that faction. The association pays volunteer, in any case has its own expenses. Following the agreement between the Association faction, the faction must bear these expenses. because these expenses were in the election campaign, it is "election expenses" of the faction. found that the association had paid, the case before us, any sums volunteer, was a place to pay these amounts, which the association pays faction, the faction's election expenses.
.6 The trouble is, our case has not paid association which volunteer. Volunteers as their names attest, operated, voluntary, and funds, it pays to the association - by a faction, used the organization to promote its goals. Does this change the result? In principle, the answer should be at night. It does not concern the party, what makes an organization the funds it receives. Tall non-profit organization, which provides in election propaganda transportation by contractors that the faction receives payment faction. This payment is "election expenses" of the party, will make use of association funds that will be received. Association may pay part of these funds debt she owed to contractors leading practice. Contractors may announce that they are not asking anything for transport, thus they support the case of the faction. It is a matter between them and the organization, and him to influence the party's obligation to pay the association and published by the characterization of payment choices. Of course, the faction can come claiming association, why the party requires a fee in respect of expenditure which was not her organization. Settlement of this claim depends on the nature of the agreement between the parties. May be transporting promised to pay the actual expenses were by association. In this case, there is no pay for the voluntary act of service providers association, since this service has not caused any expense the organization. May be transporting promised to pay a fixed sum
Association. In this case, must be paid in respect of an act of volunteerism and service providers of the organization, because payment is contingent expenses of the association. Thus, if the right of association formed for the faction, and duty of the party organization, any payment outstanding debt is an "election expenses" of the faction.
.7 Seems that already at this stage we can say that it seems that the correct interpretation of the agreement between the association is a party, that party will bear the actual expenses that her organization. As volunteers worked voluntarily, the organization has no expenses, and therefore has no right to the party organization (expenses that occurred), the faction is required for the association. Therefore, should not be paid because "election expenses". Conclusion This interpretation is strengthened in light of the relationship between the party and the association. Not assume that the association wanted to charge the actual expenses paid party were not the organization at all. In light of the close practical relationship between the faction and the association has assumed that the purpose of the agreement between them was to bring that drove the association will pay the actual expenses, but that association. It's hard to beat - the absence of clear provisions in the agreement between the parties - that the association will pay for expenses that faction had. Indeed, an affidavit on behalf of the association said that understanding the association between the party and was, for volunteers, "because if you win the party after the election funds of funds - according to the law, the question will receive full value for their work". Attempt to obtain payment for voluntary employee volunteers - who actually pay treasury came - there was no attempt to treasury funds for expenditures which were not, and to attribute intention of the parties to such agreement. Hence, the - the correct interpretation of the agreement between the party organization, no obligation rests with each party in respect of payment of actual expenses were not association. Therefore, no faction "election expenses", the petition should be rejected.
8 But even if this interpretation is correct, this does not change the conclusion that the same result because I really deserve, which means the right of agreement between the faction and the association was that the party should pay a certain amount of organization, even if the organization itself is not the actual expenses for Htndbotm of volunteers. In my opinion, even in this case should not be paid for - by the party because "election expenses". Point underlies this attitude is definitely fixed contract, but clearly the law's illness on the circumstances. From the perspective of law, the payment is intended to cover the actual costs of a faction. In light of personal identity matter between party and the association, then, under the circumstances, if the organization has no actual expenses, then the faction is not the actual expenses. In other words, and examining spending in the association (execution or registration books only) directly affects the party's characterization expenditure (execution or registration books only). Here is the legal construction of "Curtain 'imaginary'" (speech, see AE 417/79 [1], p. 353). There characterization expenditure for the faction we examine the expenditure for the association, and only if the association with interest our execution, it also looks at the execution party. construction is based on the separate legal personalities of the party and the association. We do not ignore the separate personality of the organization, and we see Accounts Accounts association that serves the faction. The distinction between the legal personality of the party and the personality The association's legal preserved. However, we "lift the curtain",
Features the expense of the party - the components of that expenditure for the association. This allowed it to do (see. Daimler Limited v limited company (great britain) continental tire and rubber company [2] [1916]). This is done not as a matter of routine. He became special cases, in order to give valid purpose of the legal norm (legislative, halachic or contractual) began to issue and to prevent the Akifth or prevention. For example, when the purpose of legislation is to prevent trade with the enemy, is allowed to examine - by means of "false Curtain" - If you are a member company enemies, to determine the nature of society as the enemy (case [2] Daimlr limited company). Similarly, when one wants to know the seat of a company for tax law, is allowed to examine the seat of the body that manages the business (see re Beers Consolidated mines). [3] [1906] Limited v. Howe is our case law. The law states that a faction is entitled to payment for "election expenses". The purpose of the law granting state funding for parties factions participating in the election process in the local authority, while setting limits and boundaries of expenditure and income monitoring mechanism for creating ways of financing, all to ensure integrity and purity of democratic elections. On - according to this end, the faction has to give funding, if - in practice - it has costs. There is no room for her own expenses, association, assembly and composition of the same faction, no expenses, then determine that no faction expenses, even if the party organization has an agreement according to which party will pay the association. If you do not say yes, we cause to work around the law, for Come and See: N. If volunteers worked directly for the faction, the faction had no expenses. The volunteers - all to help the faction - were in death, and had no expenses, because the volunteers were under which voluntary. How, then, may be that, but the association agreement between the faction faction expenses Ulead Systems? Indeed, if a direct transaction of volunteers was established expenses faction, it is consistent with the purpose of the law, that the indirect employment of volunteers (through association) shall establish costs faction.
For these reasons, the petition should be rejected.
Justice T. Or: On I agree.
Justice M. Ben - Yair: and I agree.
Decided such decision - Dino of Justice Barak.
Given today, the Sivan תש"ן (29.5.90).
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ADVOCATE ISRAEL
