Social guarantees in labor and civil law. Social protection and social guarantees Observance of the rights and social guarantees of workers

Today we will try to find out what social guarantees are for workers in a legal context and what exactly can be provided in a particular case to the population. This issue is not only relevant now, because earlier for all employees during employment there was a need to understand this concept and all the accompanying moments.

Concept and types of social guarantees

When you are looking for a robot and, reading one of the ads, you pay attention to the presence of a social package, an unknowing person is certainly captivating. But you need to understand that the presence of such a package is mandatory and in any case is provided to the employee, as it is prescribed by law.

The main guarantees that must be provided, as required by the state, include the following:

social insurance (medical insurance, social insurance, contributions to the pension fund, payment for the travel tax);
vacation pay;
sick leave payment;
payment of travel expenses;
compensation for transportation costs.

For a more detailed study of the list of all kinds of guarantees, you must refer to the labor code. It contains a ton of descriptions, responsibilities and laws in this regard for certain enterprises and different areas of their activities.

The above points are mandatory for the employer to provide, and not additional services to lure people to jobs.

Of course, some guarantees may be offered that are not listed above. Such items, the so-called additional social guarantees, are also called compensatory and motivational.

All clauses of the provided guarantees must meet the following requirements:

territorial features;
sufficient amount;
financial and material sufficiency;
the procedure for communicating to the employee.

Social guarantees can be divided into:

regional;
industry;
nationwide.

The main task to which the overall system is striving social guarantees, consists in the formation of a protective mechanism of all elements included in the structure of society, including individual individuals from destructive processes that take place at any stage of development.

Sources of financing

The regulation on social support of the population is formed by the administration of a particular settlement of the country. And the following formations can act as the main sources of financing for this system:

the state budget;
the budget of local structures;
insurance funds;
health insurance fund;
State and non-state Pension funds.

The budgets of the above and other social insurance funds are replenished from incoming compulsory payments in the form of a unified social tax, subsidies, insurance premiums and funds from the federal budget and other budgets provided for by law. The sources of these formations can be the following:

Penalties and fines.
Reimbursed money by the policyholder in the event of claims made due to harm to the insured person.
Profit from the placement of temporarily released compulsory social insurance funds.
Mandatory payment as social support for personnel from persons who voluntarily joined the system for providing compulsory social insurance.
Other income consistent with labor law and legislation.

This or that amount of the above and other similar contributions is established by the tax code of Russia and laws on social insurance. These documents also contain an indication of which categories are covered by this or that contribution.

The funds allocated for each employee must be mandatory spent strictly for the designated purpose, which is established by the law on certain types of compulsory social insurance and on the budgets of funds for the current financial period.

Social protection of the employee and the organization

The interest of employees in any organization and its successful economic development depends on how much more services and benefits are provided to each in employment and how much the amount differs from the legally established amount.

Under these circumstances, the organization can reduce staff turnover, because the employee will not have the desire to lose numerous benefits when leaving. In addition, this policy allows you to ensure the existence of employees under the condition of low wages, for example, as in government agencies, or offered in the interests of attracting and maintaining a good workforce, which can be observed in large corporations.

Social guarantees for employees, the development of their personality, health preservation are the main conditions for the successful functioning of any organization. As a motivation for management, the institution's personnel policy and related social services contribute to meeting the needs of workers, their values and interests. The main goals of social protection include the following:

Comparison of an employee with his company (meeting his needs for involvement in the organization).
The coincidence of the goals of employees and the enterprise.
Increased labor productivity and increased willingness to work.
Providing a favorable moral atmosphere.
Formation of a favorable social and psychological climate for employees.
Improving the image of the company in the eyes of workers.

As modern practice shows, it is necessary to pay attention to the social guarantees in employment, which the institution where you intend to work promises to provide. At the same time, it is necessary to select those forms of social protection that are most consistent with the satisfaction of needs and interests.

On the part of the company's management, attention should be paid to this issue and conduct various studies in order to be able to implement comfortable conditions for high-quality and effective work.

What is written in the law is mandatory!

Often indicating the availability of a social package in an ad or at an interview, they mean sick pay or deductions to the Pension, Social and Health Insurance Fund. But it should be noted that all this is spelled out in the law and, accordingly, is mandatory for the employer. And to promise this as a bonus is at least pointless - the employee should receive all this anyway.

Here is a list of the main social guarantees prescribed in the Labor Code of the Russian Federation:

sick leave payment;
payment for the next vacation 28 days;
compulsory social insurance (contributions to the Pension Fund, medical insurance and social insurance, this can also include the payment of income tax);
payment of travel allowances (Articles 167, 168 of the Labor Code of the Russian Federation);
reimbursement of transportation costs to employees when working on a traveling nature (Article 168.1 of the Labor Code of the Russian Federation);
Art. 170, 172 of the Labor Code of the Russian Federation contain a number of guarantees provided by the employer to the employee in the performance of his state or public duties, for example, donation, participation in court proceedings as a juror or witness.

In addition, the Code contains many other social guarantees for an employee. Everything that is spelled out in the legislation is not additional social security for the employee - these are mandatory social guarantees.

Additionally

But everything that is provided in excess of what is provided by law refers to additional social security or, as you can call it otherwise, to the motivational and compensation package of social guarantees.

We have everything that is required by labor law, the employee receives unconditionally, - says the deputy director for personnel Margarita Stepanenko about social security in the publishing house “Twice two”. - In addition, at the expense of the enterprise, we give gifts to the children of employees and employees for the New Year, employees and employees by February 23 and March 8, respectively, as well as birthday gifts. Financial assistance is given for the wedding day, the birth of a child or for the funeral of a close relative, and other financial assistance at the discretion of the director. Issued, if available, tickets to cinema, theater and concerts. It is also important that employees receive an additional payment for the length of service in our company. This is how we get rid of staff turnover and retain our specialists at the enterprise.
Such measures to support employees in excess of the wages they receive and social guarantees laid down by law are called motivational support or motivational social package.
In addition to motivating the employee, the employer can offer him additional compensation for expenses. For example, it is quite common practice to pay for mobile negotiations or transportation costs, as well as depreciation for people of certain professions. Among them are taxi drivers and drivers on personal transport, sales agents.

We compensate partially or completely the depreciation of the car and the cost of gasoline and mobile communications, - explains Margarita Stepanenko. - But not all workers receive such compensation, but only some categories whose work is associated with these costs.

Foreign experience

The value of such support is not appreciated by all heads of Russian enterprises. Someone thinks that the employee receives the salary due to him for his work and that he is not entitled to anything else. Other employers assign motivational support to employees "because everyone does it." That is, they follow the labor market, but they do not show much zeal.

Meanwhile, much attention is paid to this issue in foreign countries. It is believed that additional social guarantees should be at least a third of the employee's salary. Otherwise, he simply will not notice them.

It is also fraught with relying simply on a high salary, since in six months the staff will get used to it, and they will miss this level of income. And the employer will not be able to raise salaries in any significant way several times a year.

Therefore, in developed countries programs for additional support and motivation of employees are carefully developed and tracked for effectiveness.

A big plus for employment is the presence of additional life, health and dental insurance. Equally important, for example, is the provision of such trifles as a parking space.

Often in other countries, and now in Russia, the applicant, having learned that the company does not provide additional social guarantees, refuses to work.

A good leader understands that for full dedication, the employee should not be bothered by other concerns. If an employee knows that he will have to stand in line at the hospital or will have to look for a gift for loved ones, he will not be able to work in full force... That is why managers try to compensate labor costs not only with money, but also with additional services and bonuses.

An important point is taking care of the children of employees. In foreign companies, working parents from among the staff are paid for a kindergarten or, quite often, children's groups are opened right on the territory of the company. Thus, parents and young workers preparing to start a family do not have a headache, who will look after the children while they make a career.

In the Publishing House "Twice two", - says Margarita Georgievna, - by September 1, employees receive a coupon for a certain amount under the corporate action "Children to School". And in the summer we will compensate part of the amount for a trip to a camp for a child.

While it is customary in Russia to provide a universal social package to all employees, in many other countries employees receive additional bonuses depending on their position and contribution to the development of the company. For example, a more convenient parking spot might be given to top managers or high-value employees.

In addition, an additional social package is often provided in the form of a list, in which the employee selects exactly those bonuses and services that he needs.

For example, in such a situation, when management decides to reward employees with a free ticket to the gym, hypertensive patients or people with back pain will not benefit. And if there is a choice between going to the theater or cinema, a simulator and a massage, then any employee will be able to choose what is right for him. This is quite convenient for employees, which means that the employer will benefit from healthy, well-rested employees who are ready to work productively.

Health

The presence of an additional social package says a lot about the manager's attitude to employees. But even more important is the presence in this package of medical services. This is important not only for the employee - he takes care of his health and can not worry in case of illness, especially if he is a nonresident and is assigned to a remote clinic.

Having additional health insurance or medical services is also important for an employer. It is no secret that companies are losing huge amounts of money due to employee illness. This is especially true in winter during epidemics - it is necessary to work, and 20-30 percent of employees either lie at home and in the hospital, or patients come to work. And this affects the productivity of both their own and their colleagues.
“We pay great attention to the health of our employees,” says Margarita Stepanenko from the publishing house “Twice two”. - If an employee has contracted a viral infection, especially in the season when epidemics of influenza and other diseases are raging, he is strongly advised not to come to work. In this case, even without providing a sick leave, our employee receives 2-3 days of paid time off. This is more profitable than paying sick leave to half of the team, which he can infect by coming to work in this state. In addition, every month we allocate a certain amount for service in medical center"Diagnost" and each employee can take there a free coupon. Also, in case of acute pain, we give coupons for dental care.

What else?

The choice of various services, bonuses and guarantees in the additional social package is quite wide. At this point, each leader decides what to choose. This is most convenient for directors of small firms - in this case, the boss knows what his employees need.

In large companies, the head should appoint a responsible specialist or even create a commission to identify the needs of personnel. It is important to work out carefully here personnel service together with the heads of departments and give the head a full report on the desires and problems of employees.

For example, it is very important to establish nutrition for workers.

A hungry worker is not a worker. But in our country, offices and production sites often lack not only an equipped dining room, but even just a separate room with a table and chairs. At the same time, it is prohibited to dine at the workplace. And how can an employee be here? It is not always possible to go home or have lunch in the cafeteria.

In our company, on both floors of the office, there are dining rooms with a refrigerator and a microwave oven, a kettle, a dispenser with water and a set of dishes, - says Margarita Stepanenko. - Employees have a choice - someone brings lunch with them, someone goes to the store, canteen or home.

In other companies, the solution is found in ordering food delivery to the office - part of the costs or the entire order is paid by the company.

Opinion:

Anna Koshkareva, Deputy Director for Economics and Finance, Publishing House "Twice two":

The administration of our company takes care of the health of employees. A lot is being done for this. So, at our company you can undergo a free diagnostic examination and treatment in a medical center and in a dental office. I myself used these services from our company. It was convenient to take a coupon at work and immediately go to the appointment - no need to stand in line at the clinic. And the management is always aware of where the employee was late and what happened to him.

Part of the general strategy of any government in the field of public relations is a system of social guarantees. This direction provides for the purposeful activity of the authorities to develop and implement decisions that directly affect each citizen and his position. The creation of certain forms of protection is carried out taking into account the differences between population groups.

Meaning

The main goal pursued by guarantees is the formation of protection of all elements that make up the structure of society, as well as individual individuals from destructive processes that take place at certain stages of development. The activities of the authorities are aimed at the development of groups, classes, strata, and ethnic communities that form the population. Such a policy should contain certain strategic guidelines aimed at achieving global goals for the country. The basis on which socio-economic guarantees are formed is the information that is obtained when collecting statistical information and performing public research. Analysis and interpretation of the data obtained allows you to develop a competent strategy for the implementation of particularly significant goals, solving urgent problems.

Government revenue policy

Differences in the rate of profit per capita are called differentiation. In the market economy, it has always been and remains a characteristic feature. It is also noted in countries that have long embarked on the path of development, and which are now at the very beginning. The growth of its indicators is especially characteristic for Russia. State social guarantees are aimed at mitigating the established inequality. This is considered today the primary task of the Government of the country. The solution to this issue involves maintaining an optimal ratio between the incomes of the employed (active) part of the population and disabled citizens. This task is realized through the introduction of taxes and transfers for people's livelihoods or their achievement of a certain standard of living.

Decreased differentiation rates

The main directions in this policy are:

Redistribution, regulation, recalculation of citizens' receipts.
Maintaining the poorest categories and so on.

The redistribution of income is carried out through the differentiation of taxes received from different sources... Profit regulation consists in direct intervention in the primary direction of cash flows by setting either the minimum wage or the upper limit of its nominal size. Most important, however, is the support of the poorest.

Social security

This definition acts as a key concept in the development of programs aimed at protecting the population from all sorts of destructive social and political processes in the country. It includes various standards that provide citizens with a generally recognized level of consumption - the minimum standard of quality of life, taking into account the capabilities of the national economy.

Primary requirements

The institution of public protection of citizens must meet the following conditions:

Have sufficient and required volume.
Have material and financial resources.
Provide targeting.
Consider territorial features.
Have a mechanism for communicating aid to recipients.

Characteristic

Social security is an element that is provided to the population in accordance with constitutional provisions. She may be:

Nationwide.
Regional.
Industry-specific.

Protection of the able-bodied population

Social guarantees for employees are tools for ensuring normal conditions for professional activity and receiving payment for it. In Russia, one of such means is the establishment of a minimum wage. Many countries have introduced a minimum hourly wage. Today the minimum wage in Russia is at a fairly low level. This suggests that the current policy in the field of employment of the population does not give the desired effect.

Social guarantees and compensation

This is a separate line of government activity. It is oriented towards the disabled population, which today especially needs protection. The government's strategy should create optimal conditions, taking into account each category of such citizens. Proceeds for their provision are divided into three groups:

Classification of benefits

They are presented in the form of grants for:

Payment utilities and housing.
Purchase of medicines.
Free provision of vehicles, fuel subsidies and maintenance.
Taxation.
Provision of vouchers to sanatoriums and resorts.
Travel by intercity and intercity public transport.

Types of benefits

Cash compensation is provided for:

Poverty.
Mothers and children.
Disabled people.
Veterans, pensioners and elderly people.
Internally displaced persons and refugees.

Functions

Any social guarantee is an element of the public institution for the protection of the population. Within its framework, large-scale goals and objectives are set. Their achievement and implementation is carried out according to the program developed by the Government. Accurate adherence to the adopted scheme should provide the intended effect. Social security is, among other things, an effective tool for stabilizing the situation of citizens. It performs the following functions:

Conclusion

The main tasks that are facing cover the stimulation and maintenance of economic development, the subordination of the production sector to the interests of consumers. At the same time, thanks to the implementation of the developed programs, labor motivation and business enterprise of the population are increasing. All this, in turn, contributes to the achievement and subsequent improvement of the standard of living, the preservation of natural and cultural heritage, identity and national identity.

Fast navigation through the material

Despite some improvements, the situation on the labor market with regard to the observance of all workers' rights is still not entirely favorable. Fewer than half of organizations provide a full benefit package - and only a few provide additional compensation and corporate incentives. Often, what is obligatory by virtue of the law (social guarantees for employees) is sick leave and vacation payments, travel expenses, the provision of overalls, etc. - is presented as a bonus and an advantage.

The situation is partly due to the lack of jobs and the influx of cheap labor from nearby foreign countries - people who work illegally, and even more so illegally are in the country, will not report violations and defend their rights. But even highly skilled workers, specialists government agencies and large, successful commercial enterprises also file complaints. Violations in their case are not so gross - most often the failure to provide the next vacation or a slight delay in salary. While representatives of the mass positions of most trade, catering, etc. ask for help in the case when they were illegally dismissed without pay for several months, refused to provide maternity leave, did not make an entry in the work book, etc.

Most often, in the consultation process, lawyers are faced with the following questions:

what guarantees and compensations are provided to employees upon conclusion labor agreement;
what types of social guarantees are included in the mandatory package for employment;
whether compensation for treatment costs should be paid to an employee who is injured at work or who has acquired an occupational disease;
how to demand social guarantees and benefits provided by law.

This list of the most pressing questions is far from complete. it all depends on the specific case and situation. Legal advice will answer all your questions in this area, and give the necessary recommendations for action.

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Concept and types of social guarantees

In addition to the standard set for workers in any area - vacation, sick leave, maternity leave, etc. - there are a number of other guarantees and compensations, which are mandatory and depend on the specifics labor activity... But, striving for savings, the employer is often silent about the possibility of providing them, when an employee makes demands, he tries to mislead him, to convince him that in this case the employee is not entitled to anything. Often, at the same time, a reference is made to some internal regulations and orders, orders for the enterprise - no matter how convincing it may seem, you need to know that local regulations cannot worsen the standards prescribed in labor legislation.

According to the law, social guarantees for employees is a complex of all kinds of means, methods and conditions aimed at exercising their legal rights granted to them by labor and civil legislation.

Social guarantees for employees are not only material benefits in the form of benefits, compensations, etc., but also ways of realizing intangible rights. These include:

the right for the employee to retain his workplace (during the period of his temporary disability or vacation, including maternity leave);
the right to provide safe working conditions;
the right to provide other work in the event of an occupational injury, for example;
the right to official housing when working under a contract in military service or on a rotational basis in the Far North;
etc.

The social guarantees of employees, provided by the state in the form of material payments, have the following purposes:

receipt by the employee of means of subsistence in the amount of his average monthly salary in cases where he is not able to fulfill his obligations under the employment contract (under the conditions that non-fulfillment is caused by situations provided for by law);
the employee his reimbursement of expenses incurred as a result of the performance of his official functions (for example, travel compensation, etc.).

Reimbursement of treatment costs to an employee can be expressed not only in payment for medications or sick leave, but also in the form of reimbursement of the cost of travel to the place of rest in a sanatorium, payment of part of the cost of a voucher or its full cost, etc.

Social guarantees in case of job loss form a separate part in labor legislation. They are established at the level of federal legislation and enshrined in the employment law. According to this normative act, social guarantees in case of job loss are as follows:

benefit paid in connection with temporary unemployment;
accrual of a scholarship for retraining or retraining (if there is a referral from the employment service);
payment of compensation reimbursing the costs incurred in connection with moving to another place of work at the suggestion of special services;
payment of compensation in case of termination of an employment agreement under article 178 of the Labor Code of the Russian Federation or 180 (in the amount of up to three average monthly salaries);
payment of benefits for temporary disability due to pregnancy and childbirth;
the possibility of early retirement.

Social guarantees in case of job loss, as a rule, are paid from the federal budget.

Before agreeing to bonded working conditions, ask a specialist what guarantees the employer is obliged to provide you. By acting wisely and correctly, you can improve your work position and achieve full benefits, tax cuts and regulatory compliance - without having to conflict with management. If your organization grossly violates the rights of workers, urgently get support for a lawyer to resolve the dispute - the loss of time in this case may complicate the resolution of the issue.

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HELP OF A LAWYER

Legal advice will allow you to figure out what guarantees and compensations are provided to employees, find out what types of social guarantees are available for each specific case, and determine the procedure for actions in case of violation by the employer of employees' rights to social guarantees and benefits.

Legal advice may be needed, for example, in such cases:

you were denied payment for sick leave, vacation (including maternity or student leave);
you were denied additional leave and time off, reduced working hours, transferred to lighter work;
you were denied payment for medical examination and advanced training, forced to buy or pay on your own for anything you need in your work;
you are not compensated for labor harm, travel for business purposes, depreciation of your car or the use of personal equipment;
you cannot take advantage of your benefit category (mother of many children, disabled, single mother, etc.).

Depending on the specifics of your occupation, you may be entitled to special social guarantees and benefits, which your employer did not provide you with information about. Most of them cannot be obtained "retroactively" - so take care of obtaining information and protecting your rights in a timely manner. Specify what kind of support and social guarantees you can count on by contacting a lawyer for detailed advice.

Attention! Due to the latest changes in legislation, the legal information in this article may become out of date! Our lawyer can advise you free of charge Ask a question to a lawyer

CHAPTER 1. SOCIAL GUARANTEES OF EMPLOYEES IN LABOR LAW

1.1 The concept of guarantees in the world of work

1.3 Guarantees for employees in the performance of state or public duties

1.4 Guarantees for employees combining work with training

1.6 Guarantees to employees in case of temporary incapacity for work

1.8 Concept of compensation in the world of work

1.9 Compensation in connection with the use of property by employees in the course of work

1.10 Compensation for business trips, sending workers to improve their qualifications and to work in another locality

1.11 Compensation for persons combining work with training

1.12 Benefits related to treatment by workers

1.13 Protection of labor rights of workers

CHAPTER 2. SOCIAL GUARANTEES OF INDIVIDUALS IN CIVIL LAW

2.1 Rights of individuals

2.2.1 The concept of a civil contract

2.2.2 Warranties provided to the contractor

2.3 Guarantees for the protection of the result of intellectual activity

2.3.1 The concept of intellectual activity and its result

2.3.2 Functions of civil law for the protection and use of the results of intellectual activity and equivalent means of individualization

2.4 Guarantees for the protection of civil rights

CHAPTER 3. RATIO OF SOCIAL GUARANTEES IN LABOR AND CIVIL LAW

3.1 The legal nature of an employment contract and a civil contract

3.2 The difference between an employment contract and a civil contract

3.3 Guarantees to employees in case of combination of contracts of two types

CONCLUSION

The source of funding for guarantees and compensations can be both the funds of the employer and the funds of bodies and organizations in whose interests the employee performs state or public duties (jurors, donors, etc.).

Legal regulation of the conditions for the provision of guarantees and compensations is not the prerogative of labor legislation and is carried out with the help of federal laws and other regulatory legal acts.

In accordance with Art. 165 of the Labor Code of the Russian Federation, in addition to general guarantees, for example, when hiring, transferring to another job, on remuneration, employees are provided with certain guarantees in the following cases: 1) sending on business trips; 2) moving to work in another locality; 3) fulfillment of state or public duties; 4) combining work with training; 5) forced termination of work through no fault of the employee; 6) provision of annual paid leave; 7) termination of an employment contract on separate grounds; 8) delays through the fault of the employer in issuing the employee his work book upon dismissal.

Naturally, this list of guarantees is not exhaustive, since the establishment of additional guarantees in agreements, collective agreements, other local acts of the organization, labor contract improves the position of the employee in comparison with the current legislation. In this connection, their establishment does not contradict the legislation.

The basic rights of the employee include: 1) provision of work according to the function stipulated in the employment contract; 2) the right to working conditions in accordance with applicable standards; 3) receiving remuneration for the work performed. Accordingly, the guarantees are designed to ensure the exercise of the listed rights. For example, an employee may be absent from work for reasons established by law. In this case, he is guaranteed the preservation of his job and average earnings.

The rights of employees can be of a property or non-property nature.

The existing guarantees for the exercise of these rights may also be of a proprietary or non-proprietary nature. In particular, in the absence of an employee at work due to a violation of the terms of payment of wages, he is guaranteed the preservation of the workplace, the previous working conditions, and the non-proliferation of personal data. The listed guarantees can be recognized as non-property, since they do not have a value determined for the employee.

During the absence of an employee at work due to non-payment of wages, he is guaranteed the preservation of the average wage. This guarantee is of a property nature, since it is associated with the provision of movable property to the employee in the form of cash in a certain amount.

A distinctive feature of non-property guarantees is their direct connection with the employee's place of work; they are designed to ensure that the employee retains the previous working conditions, including the workplace, in cases established by law. In this connection, the main non-property guarantee is to provide the employee with a previous place of work after absence for valid reasons recognized as such by law, for example, in case of violation of the terms of payment of wages.

Property guarantees are directly related to the employee's right to receive monetary remuneration for his work, that is, wages. In this connection, they are always associated with the size of the average wage received by the employee. Therefore, the provision of property guarantees is directly related to the size of the employee's average earnings.

In connection with the above, the following legally significant circumstances can be distinguished that characterize the legal concept of guarantees in the labor sphere. Firstly, the establishment in legislation, agreements, collective bargaining agreements, other local legal acts of the organization, labor contract. Secondly, the direct provision of labor rights provided for in the legislation. Third, ensuring the exercise of both non-property and property rights of workers in the labor sphere. At the same time, non-property guarantees are designed to ensure the preservation of the previous conditions of work, in particular the place of work. Property guarantees are always related to the wages received by the employee.

The provision of non-property guarantees is associated with ensuring the rights arising for employees in labor relations. As a general rule, such guarantees terminate with the end of the employment relationship. However, the employer is obliged to provide the employee with the storage and transfer of his personal data in compliance with the requirements of labor legislation and after his dismissal. Therefore, this guarantee is valid even after the termination of the employment relationship. However, the failure of the employer to comply with this guarantee entails the possibility of the employee receiving, after the termination of his employment relationship, the losses incurred under the rules of civil law. In this case, the person with whom the terminated labor Relations, may demand not only compensation for losses incurred in connection with the refusal to comply with non-property guarantees by the employer, but also compensation for moral damage.

Property guarantees also operate in parallel with labor relations. However, separate guarantees are also provided after dismissal from work. These include severance pay paid to dismissed persons. However, the existence of this guarantee does not affect the fate of the employment relationship, which is terminated.

In connection with the above, it can be concluded that guarantees are associated with ensuring the rights arising in labor relations. The provision of these guarantees after the termination of the employment relationship does not affect their fate, but such provision also serves to ensure the labor rights of employees, which may continue after the termination of the employment relationship, for example, the right to compensation for losses caused by the employer and to compensation for moral damage in connection with non-compliance with the established legislation of the rules of conduct.

1.2 Guarantees of employees when sent on business trips and to work in another locality

In Art. 166 of the Labor Code of the Russian Federation, a business trip is defined as a trip of an employee by order of the employer to carry out a business assignment outside the place of permanent work. At the same time, official trips of employees whose permanent work is carried out on the way, for example, train conductors, or has a traveling nature, are not considered business trips, since the implementation of business trips in this case is part of labor function, that is, it is permanent. This definition makes it possible to single out several legally significant circumstances, the proof of which makes it possible to recognize the employee's trip as a business trip.

Firstly, such a circumstance is that the employee has a place of permanent work. This place can be determined in the local acts of the organization with which the employee has an employment relationship, or in an employment contract. A business trip presupposes an exception to the general rules for performing work stipulated by an employment contract, since it is performed outside the place of permanent residence of the employee.

Secondly, a legally significant circumstance characterizing the concept of a business trip is the issuance of an order by the authorized representative of the employer to send an employee to carry out an official assignment for a specified period outside the place of permanent work. This order must be issued by the authorized representative of the employer, and the employee sent on a business trip must be familiarized with it. The absence of this order allows the employee to refuse a business trip. The order of the plenipotentiary representative of the employer must indicate what specific official assignment the employee should carry out on a business trip, as well as its duration. The term of the business trip is not defined in the legislation. However, it should not exceed the time the employee performs the job at the place of permanent work, since in this case the place of business trip becomes the permanent place of work. Sending on a business trip, as a rule, occurs in addition to the will of the employee.

However, by agreement with the employee, the business trip may be extended, but at the same time the employee should be provided with additional benefits in comparison with the legislation, if due to such an increase the employee spends most of the time in the accounting period outside the place of permanent work. The lack of expression of the will of the employee distinguishes a business trip from a temporary transfer to work for another employer or to another locality, which requires the consent of the employee. Although after the end of the business trip, and after the end of the period of temporary transfer to another employer or to another locality, the employee is guaranteed the previous place of work.

Thirdly, a legally significant circumstance characterizing the concept of a business trip is the fulfillment of an official assignment outside the place of permanent work.

Used in art. 166 of the Labor Code of the Russian Federation, the formulation allows us to conclude that not only the performance of a service assignment in another locality, that is, in another locality, but also in the same locality outside the place of permanent work can be recognized as a business trip. In this connection, a trip by order of the employer to complete a task within the same locality can be recognized as a business trip.

In Art. 167 of the Labor Code of the Russian Federation, the main guarantees when sending an employee on a business trip are the preservation of his place of work (position) and his average earnings. The current legislation allows distinguishing two types of guarantees that are provided to employees sent on business trips.

First, we can single out the guarantees that are provided to the employee when performing a service task outside the place of permanent work, that is, on a business trip. These guarantees include, first of all, the fulfillment by the employee of the official task, which is included in the labor function of the employee. The assignment to the employee of additional work in comparison with the labor function requires obtaining his consent, as well as payment for the additional work performed. The work schedule on a business trip should not differ from that established for the employee. In this connection, engaging an employee to work outside the normal working hours on a business trip is overtime work, which must be compensated for by the employee with additional pay or the provision of other rest time equal to the duration of the overtime worked.

Secondly, it is possible to single out the guarantees provided to an employee sent on business trips to the place of permanent work. These include the retention of the employee's place of work (position), that is, after returning from a business trip, the employer is obliged to provide the employee with the previous job (position) with the same working conditions, which can be changed only after the end of the business trip in compliance with the requirements of the current legislation. The presence of an employee on a business trip cannot be recognized as a legal basis for changing the conditions of his labor activity.

An employee who is on a business trip is guaranteed the preservation of the average earnings at the main place of work. The average earnings for payment to an employee on a business trip is calculated according to the rules established by law, it must be paid to the employee within the time limits established for the payment of wages, therefore, when an employee is on a long business trip, the employer must ensure that his average earnings are sent to the employee. This shipment must be carried out at the expense of the employer. Failure by the employer to fulfill this obligation allows the employee to receive interest for delayed wages, as well as to terminate the performance of a job assignment on a business trip if the delay in average earnings exceeds 15 days. In case of an increase in wages in the organization, an employee on a business trip has the right to the specified increase on an equal basis with other employees of the organization. Thus, the labor rights of an employee cannot be limited due to his being on a business trip.

Similar guarantees are provided to employees when moving to work in another locality. One of the guarantees provided to employees when moving to work in another locality is the inadmissibility of the deterioration of the working conditions enshrined in the invitation to work.

The person invited or transferred to another locality is guaranteed the preservation of earnings while on the road. From the moment of departure to a new place of work, a person invited or transferred to work in another locality becomes an employee of a new employer, whose responsibility is to pay wages for all days on the road.

The employer is also obliged to provide the employee with time while maintaining the average earnings for settling in a new place of residence. Thus, guarantees when moving to work in another locality are associated with providing the employee with work and working conditions stipulated in the invitation to work, and maintaining earnings while on the road and settling in a new place of residence.

Based on Part 1 of Art. 170 of the Labor Code of the Russian Federation, the employer is obliged to release the employee from work while retaining his place of work (position) for the duration of his state or public duties in cases where, in accordance with federal law, these duties must be performed in work time.

In accordance with part 2 of article 170 of the Labor Code of the Russian Federation, a state body or a public association that has attracted an employee to the performance of state or public duties, pay the employee for the time of performance of these duties compensation in the amount determined by law or by a decision of the relevant public association. A state or public body that involves an employee in the performance of duties during working hours pays him compensation, and not guaranteed payments in the amount of average earnings.

The current legislation makes it possible to distinguish the following types of guarantees that are provided to employees in the performance of state or public duties.

First, workers are guaranteed time off from work. The cases when an employee is released from work to perform state duties are listed in federal laws. These include the performance by an employee of the duties of a juror, victim, witness. The employer is obliged to release the employee from work while he is in court as a plaintiff, defendant, applicant, etc.

Secondly, the employee is guaranteed the preservation of the place of work (position), as well as the previous working conditions for the period of fulfillment of state or public duties in cases stipulated by law, as well as agreements in force in the organization, collective agreement. In this connection, upon completion of the performance by the employee of state or public duties, he is guaranteed to return to his previous place of work (position) with the same working conditions that existed before the employee began to perform these duties.

Thirdly, employees performing state or public duties, in accordance with legislation and other regulatory legal acts in cases, the average wage is retained. In particular, the employer is obliged to keep the average wage for the employee when participating in a civil case as a witness.

Guarantees for employees who combine work with training can be classified depending on which educational institution the employee is applying to or studying, to whom the corresponding guarantees are provided.

First, one can single out the guarantees that the employer provides to employees entering or studying in educational institutions of higher professional education. In accordance with Part 2 of Art. 173 of the Labor Code of the Russian Federation, the employer is obliged to provide unpaid leave: 1) employees admitted to entrance examinations in educational institutions of higher professional education, lasting 15 calendar days; 2) employees studying in state-accredited educational institutions of higher professional education in full-time education, combining study with work to undergo intermediate certification - for 15 calendar days in the academic year, for the preparation and defense of graduation qualification work and passing the state examinations - four months, for the final state examinations - one month; 3) employees who are students of the preparatory departments of educational institutions of higher professional education, for passing final exams with a duration of 15 calendar days. For the listed employees, the guarantee is their release from work by providing them with unpaid leave of the specified duration, as well as preserving their place of work (position) and previous working conditions. The provision of these holidays is independent of the employer's discretion. In this connection, the employee has the right to take advantage of these holidays with the notification of the employer's representatives about the use of the study leave of the duration established by law.

The collective and labor agreement may provide additional guarantees for employees who combine work with training. In particular, similar guarantees may be provided for employees who are studying in educational institutions of higher professional education that do not have state accreditation.

Secondly, it is possible to single out the guarantees that are provided by the employer to employees entering or studying in educational institutions of secondary vocational education that have state accreditation.

In accordance with Part 2 of Art. 174 of the Labor Code of the Russian Federation, the employer is obliged to provide unpaid leave to the following employees: 1) admitted to entrance examinations in state-accredited educational institutions of secondary vocational education with a duration of 10 calendar days; 2) employees studying in state-accredited educational institutions of secondary vocational education in full-time education.

Thus, the legislation provides for the following guarantees for these employees: 1) release from work in the listed cases, which does not depend on the discretion of the employer; 2) retention of the place of work (position) with the same working conditions; 3) preservation of the average earnings during the study leave.

In accordance with Part 3 of Art. 174 of the Labor Code of the Russian Federation, employees studying part-time (evening) and part-time forms of study in state-accredited secondary vocational education institutions are granted the right to shorten the working week within 10 months preceding the completion of the diploma project (work) or passing the state exams. at 7 o'clock. In this case, the guarantees are: 1) the release of the employee at his request from work for 7 hours during each working week; 2) retention of the place of work (position) and the previous working conditions for the employee; 3) preservation of 50 percent of the average earnings for the employee during the period of release from work, but not less than the minimum wage.

In agreements, collective bargaining agreements, labor contracts may provide additional guarantees in comparison with the legislation to persons receiving secondary vocational education. For example, the listed guarantees can be provided by the employer at the expense of own funds and workers who receive secondary education professional level in educational institutions that do not have state accreditation.

Thirdly, guarantees can be allocated that are provided to employees studying in educational institutions of primary vocational education, which have state accreditation.

In accordance with Part 2 of Art. 175 of the Labor Code of the Russian Federation, employees studying in educational institutions with state accreditation under the program of primary vocational education, in the absence of arrears, are provided with additional leaves with the preservation of average earnings for passing exams lasting 30 calendar days during each academic year. In this case, the guarantees are: 1) the release of the employee from work to take exams, which does not depend on the discretion of the employer; 2) retention of work (position) and previous working conditions for the employee; 3) preservation of the average wage for the employee for the period of study leave.

Agreements, collective bargaining agreements, labor contracts may provide additional guarantees for persons enrolled in primary vocational education programs, in particular, the provision of the listed guarantees to employees receiving education in primary vocational education institutions that do not have state accreditation.

Fourthly, guarantees provided to workers studying in evening (shift) educational institutions with state accreditation.

In accordance with Part 1 of Art. 176 of the Labor Code of the Russian Federation, employees studying in state-accredited evening (shift) educational institutions, in the absence of arrears, are provided with additional leaves with the preservation of average earnings for passing final exams in the 9th grade with a duration of 9 calendar days, in the 11th (12) class with a duration of 22 calendar days.

The guarantees in this case are: 1) the release of the employee from work for the period of passing the exams, which does not depend on the discretion of the employer; 2) preservation of employees for the period of vacation of work (position) and the previous working conditions; 3) preservation of the average wage for the employee for the vacation period.

Based on Part 3 of Art. 176 of the Labor Code of the Russian Federation, employees studying in educational institutions that have state accreditation during the academic year have the right to reduce the working week by one working day or to the corresponding number of working hours during the days of the working week. In this case, the employer is obliged to provide the employee with the option he has chosen to reduce working hours. Reduced time is paid at 50 percent of the employee's average wage, but not less than the minimum wage.

The guarantees in this case are: 1) the release of the employee from work at his request for one working day per week during the school year or for the number of working hours corresponding to the working day during the days of the working week; 2) preservation of the workplace (position) and the previous working conditions for the employee; 3) retention of an employee with a reduction in working time 50 percent of his average wage, but not less than the established minimum wage.

The legislation also defines the procedure for providing the considered guarantees. Part 1 of Art. 177 of the Labor Code of the Russian Federation states that guarantees are provided to an employee when receiving an education of the corresponding level for the first time. In this connection, the employee has the right to use the considered guarantees when receiving education of the same level only once.

Part 2 of Art. 177 of the Labor Code of the Russian Federation states that study leave, by agreement between the employer and the employee, can be added to the annual paid leave. Therefore, it is a right and not an obligation of the employer to add the study leave to the annual one.

In accordance with Part 3 of Art. 177 of the Labor Code of the Russian Federation, due to the requirements of the legislation, when training an employee in two educational institutions, the obligation arises to provide appropriate guarantees only in connection with training in one of them, while the choice of guarantees remains with the employee. However, even in this case, the employer has the right, at its own expense, to provide the employee with guarantees necessary for training in each of the educational institutions.

1.5 Guarantees to employees upon dismissal

When employees are dismissed on certain grounds, the law provides for the payment of severance pay. In accordance with Part 1 of Art. 178 of the Labor Code of the Russian Federation, upon termination of an employment contract in connection with the liquidation of the organization (clause 1 of part 1 of article 81 of the Labor Code of the Russian Federation) or a reduction in the number or staff of employees of the organization (clause 2 of part 1 of article 81 of the Labor Code of the Russian Federation), the dismissed employee is paid severance pay in the amount of the average monthly earnings, it also retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal, but this period includes the time for which the monthly severance pay was paid. Based on Part 2 of Art. 178 of the Labor Code of the Russian Federation, these employees retain their average earnings for the third month from the date of dismissal by the decision of the relevant employment service body, but at the expense of the employer, if the employee, within two weeks from the date of dismissal, applied to this employment service body, but was not employed by him. In this case, the following are the guarantees: 1) preservation of the average earnings for the employee for the period established by law after dismissal; 2) preservation of the insurance experience for the period for which the average salary was paid to the dismissed person; 3) preservation of the employee's pre-emptive right to employment when the number or staff of the organization's employees is reduced throughout the entire period of retention of earnings for the period of employment, since during this period the employer not only retains the obligation to retain the employee's average earnings, but also to accept measures for the employment of the dismissed.

Severance pay in the amount of two-week average earnings is paid to an employee upon dismissal: in connection with the conscription of an employee for military service or his assignment to an alternative civilian service replacing it (clause 1 of part 1 of article 83), in connection with the reinstatement of an employee at work, previously who performed this work (clause 2 of part 1 of article 83), due to the employee's refusal to transfer, in connection with the relocation of the employer to another locality (clause 9 of part 1 of article 77), in connection with the recognition of the employee as completely incapable to labor activity in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation (clause 5 of part 1 of article 83), in connection with the employee's refusal to continue working in connection with a change in the conditions of labor determined by the parties of the contract (clause 7, part 1 of article 77), in connection with the employee's refusal to transfer to another job, which he needs in accordance with the medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, or the employer's lack of appropriate work (p. 8 h. 1 tbsp. 77).

In this case, the guarantees are: 1) keeping the employee for two weeks from the date of dismissal of the average monthly earnings; 2) retention of the employee's insurance experience for two weeks from the date of dismissal in connection with the payment for this period of the average monthly earnings; 3) the employee retains the right for two weeks from the date of dismissal to work with the same employer in the presence of appropriate vacancies and the elimination of obstacles to the performance of work.

Upon dismissal to reduce the number or staff of employees, the organization in accordance with paragraph 1 of Art. 179 of the Labor Code of the Russian Federation, the preemptive right to remain at work is guaranteed, primarily to employees with higher labor productivity and qualifications. With equal labor productivity and qualifications, the following criteria are applied to decide whether or not there is a pre-emptive right to stay at work: 1) the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them permanent and main source of livelihood); 2) the absence of other employees with independent earnings in the family of the dismissed employee; 3) receiving in this organization a work injury or occupational disease; 4) the presence of disability due to participation in the Great Patriotic War or in hostilities to defend the Fatherland; 5) advanced training in the direction of the employer on the job. The collective agreement may indicate other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications. At the same time, the predominant right to remain at work can be obtained by an employee who has several grounds that give an advantage for continuing the employment relationship.

In accordance with Part 1 of Art. 180 of the Labor Code of the Russian Federation, when carrying out measures to reduce the number or staff of employees, the employer is obliged to offer the employee another available job ( vacant post) corresponding to the qualifications of the employee.

Based on Part 2 of Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to warn the employee about the upcoming dismissal in connection with the liquidation, reduction in the number or staff of the organization's employees personally on receipt at least two months before dismissal.

In accordance with Art. 181 of the Labor Code of the Russian Federation, upon termination of the employment contract with the head of the organization, his deputies and the chief accountant in connection with the change of the owner of the organization, the new owner is obliged to pay the dismissed an allowance in the amount of at least three monthly salaries of the employee. This payment must also be made at the time of the employee's dismissal. Violation of the terms and in this case is the reason for the payment of the dismissed interest, provided for in Art. 236 of the Labor Code of the Russian Federation.

In relation to the named workers, the guarantees are: 1) preservation of the average earnings for three months after dismissal; 2) the inclusion of periods for which the average salary was paid in the insurance experience; 3) preservation of the opportunity to continue labor relations by concluding an employment contract for available vacancies that correspond to the qualifications of the dismissed employee. The named employees cannot be unjustifiably refused to conclude an employment contract for the vacancies available in the organization, the work for which corresponds to their professional skills.

Based on Art. 183 of the Labor Code of the Russian Federation during the period of temporary disability, the employer pays the employee a temporary disability benefit in accordance with federal law. Temporary disability benefit is paid as a percentage of the employee's earnings for the 12 calendar months preceding the temporary disability. In turn, the amount of interest depends on the employee's insurance experience, that is, the work time during which the premiums for this type of insurance were paid. An exception is established in Part 1 of Art. 7 of the Federal Law of December 29, 2006, No. 255-FZ "On the provision of benefits for temporary disability, pregnancy and childbirth of citizens subject to compulsory insurance", which established that employees with insurance experience in the accounting period of 12 months less than six months , temporary disability benefit is paid in the amount of the minimum wage. Employees who have overcome the six-month insurance barrier and have an insurance experience of six months to five years are paid benefits in the amount of 60 percent of their average wages. With work experience of 5 to 8 years, this allowance is paid in the amount of 80 percent of the employee's average earnings. With more than 8 years of experience, the allowance is paid in the amount of 100 percent of the employee's average earnings.

In connection with the above, the following are the guarantees for temporary disability of the employee: 1) preservation of the place of work (position) for the employee for the entire period of disability. The employer has the right to take another employee in his place for the period of the employee's incapacity for work under a fixed-term employment contract. However, after the end of the period of temporary incapacity for work, the employee is guaranteed to return to his previous workplace. In this connection, the employee hired for this job must be fired or transferred to another job (position). The legislation does not allow competition between employees for the specified workplace, since it is guaranteed to a sick employee; 2) preservation of the employee's previous working conditions, which can be changed after the employee returns from a period of temporary incapacity for work on the grounds established by law. This does not apply to the increase in wages. Temporary disability benefit should be paid in an increased amount from the moment of an increase in wages in the organization, if it is not paid in the amount of the minimum wage; 3) retention of the average earnings for the employee or a part of it, depending on the length of his insurance period, or payment of the minimum wage with the insurance record of less than six months in the settlement period of 12 months. In accordance with Art. 184 of the Labor Code of the Russian Federation in the event of temporary disability due to an industrial accident or occupational disease, temporary disability benefits are paid to an employee in the amount of his average earnings, regardless of length of service.

1.7 Guarantees for elected employees

In accordance with Art. 172 of the Labor Code of the Russian Federation, employees dismissed from work as a result of their election to elective positions in state bodies, that is, in elective bodies of federal and regional authorities, as well as in local self-government bodies, are provided with guarantees provided for by special laws regulating the status and procedure for the activities of these bodies. The general guarantees that are provided to these persons include: 1) providing the opportunity to return to their previous job (position), which they performed prior to exercising their elective powers; 2) providing an opportunity to start an equivalent job in the absence of a previous job (position); 3) preservation of the previous working conditions, which can be changed after the employee returns to his previous duties on the grounds provided for in the legislation.

Based on Part 2 of Art. 171 of the Labor Code of the Russian Federation, workers elected to trade union bodies and commissions on labor disputes are released from work to participate in its work, while maintaining their average earnings. In this case, the following are the guarantees: 1) release of an employee-member of the CCC from work for the period of its meetings and their preparation; 2) preservation of the workplace (position) and the previous working conditions for the members of the CCC for the duration of the duties of a member of the CCC; 3) preservation of the average earnings for the members of the CCC during their participation in the work of the commission.

In accordance with Part 3 of Art. 171 of the Labor Code of the Russian Federation, the dismissal of employees who are members of the CCC is carried out using Art. 373 of the Labor Code of the Russian Federation.

In accordance with Art. 375 of the Labor Code of the Russian Federation, an employee dismissed from work in an organization in connection with his election to an elective position in a trade union body of the organization, after the expiration of the term of elective powers, is given the previous job (position), and in its absence, with the consent of the employee, another equivalent job (position) in that the same organization. If it is impossible to provide the specified work (position) in the event of reorganization, the legal successor, and in the event of liquidation of the organization, the all-Russian (interregional) trade union retains for the specified employee his average earnings for the period of employment, but not more than six months, and in the case of studies or retraining - for a period of up to one year.

The time spent in an elective position is included in the general or special length of service of the named employees.

In this case, the following are the guarantees: 1) the retention of the previous job (position) for the elected employee with the same working conditions, the presence of this position (work) entails the employer's obligation to provide it to the employee, in connection with which another employee must be accepted for this work (position) under a fixed-term employment contract, which ends at the end of the term of the elective powers of the employee who previously performed this job function; 2) provision of another equivalent job (position) in the absence of a previous job (position); 3) preservation of average earnings for the period of employment in the absence of an opportunity to provide work to an elected employee for a period of up to six months, and during training - for a period of up to one year; 4) the inclusion of periods of exercising elective powers in the general or special length of service of the employee; 5) inclusion of paid periods of employment in the employee's insurance record, subject to the payment of the corresponding insurance premiums.

Part 2 of Art. 164 of the Labor Code of the Russian Federation, compensations are defined as cash payments established in order to reimburse employees for costs associated with the performance of their labor or other duties provided for by federal law. From the current legislation, the following circumstances can be distinguished that characterize compensation as a legal concept.

First, compensations are of a reimbursable nature, they are designed to reimburse the employee for certain costs. These costs can be reimbursed to the employee both in the past and in the event of future expenses, for example, to pay for travel to the place of business travel and back. Whereas the guarantees provided to employees are not of a compensatory nature. The guarantees are designed to ensure the implementation of the labor rights of employees.

Compensations are aimed at reimbursing the costs incurred by employees in the performance of established duties, as well as when using certain rights, in particular the right to training.

Secondly, the use of the concept of "compensation" presupposes the proof of the existence of a direct connection between the incurred or expected costs of the employee with the performance of labor or other duties stipulated by federal law during the time allotted for the performance of labor duties.

That is, the connection between the incurred or future costs of the employee with the performance of specific work duties or other obligations provided for by federal law must be proven. Proof of these circumstances allows the employee to claim compensation for the costs incurred by him.

Thirdly, the incurred or future expenses of the employee must be incurred with the knowledge or consent of the authorized representative of the employer or on the grounds provided for by federal law. The employer, at his own expense, can compensate the employee for any incurred and future costs, thus recognizing them as compensable. In this case, the position of the employee in comparison with the current legislation improves, which fully complies with the legal principles of regulation in the field of labor. Expenses incurred by employees may be recognized as subject to compensation by virtue of the requirements of federal law. In this case, the employer has an obligation to compensate the employee for incurred or future expenses. Compensation payments, like other amounts due to the employee, must be provided by the employer to the employee in a timely manner. An employee is not obliged to spend personal funds in the performance of work duties, state and public duties provided for by federal law. In this connection, the funds necessary for the fulfillment of these obligations in the cases provided for by law must be provided to him by the employer. The employer's refusal to pay the employee the amounts necessary to perform the listed duties allows the employee to refuse to fulfill them, for example, from traveling on a business trip in the absence of the necessary funds, which the employer must provide. The costs incurred by the employee, recognized as eligible for compensation, must be reimbursed to him at the first payment of salary.

Failure to comply with the terms of reimbursement of expenses incurred by the employee on the basis of the current legislation makes it possible to require the application of Art. 236 of the Labor Code of the Russian Federation, which provides for the payment of interest for each day of delay in the payment of the amounts due to the employee.

As already noted, the employer has the right, at his own expense, to improve the position of employees in comparison with the legislation when reimbursing incurred or future expenses. However, the application of local rules in the payment of compensation has its own peculiarities. Expenses that are reimbursed to the employee on the basis of the current legislation cannot be considered as his income, since the employee does not use these amounts to meet his personal needs. The paradox of the legislation on compensation is that it sets maximum permissible parameters for reimbursing an employee for expenses incurred. Exceeding the specified parameters at the expense of the employer's own funds is considered as an employee receiving additional income. Although in this case, the employer and the employee recognize the costs incurred as necessary for the performance of labor and other duties and, therefore, subject to compensation.

The conclusion suggests itself that these payments cannot be attributed to the employee's income, since they are used by him not to satisfy his personal needs, but in order to properly perform the duties assigned to him. Therefore, the recognition of these payments as an employee's income in the part that exceeds the parameters established by law is in conflict with the concept of compensation payments under consideration.

After all, it is obvious that the proof of the listed circumstances, these payments can also be recognized as compensatory. Although the application of the law follows a different path, but when deciding whether the payment made to the employee is compensation or not, one should be guided by the data in Part 2 of Art. 164 of the Labor Code of the Russian Federation defining compensation payments.

This definition is applicable when the circumstances considered are proven. It does not imply the possibility of limiting the amount of compensations due to the employee at the level of bylaws by referring them to the employee's income. For this reason, in the event of conflict situations, law enforcement officers are obliged to be guided by the considered concept of compensation payments.

In accordance with Art. 188 of the Labor Code of the Russian Federation, when an employee uses the employee's personal property with the consent or knowledge of the employer and in his interests, he is paid compensation for the use, depreciation (depreciation) of tools, personal vehicles, equipment and other technical means and materials belonging to the employee, and also reimbursed the costs associated with their use. The amount of reimbursement of expenses is determined by the agreement of the parties to the employment contract, expressed in writing. Naturally, for the recognition of compensation payments made to an employee, the general concept of compensation payments is first of all applicable. In addition to the general circumstances included in this legal concept, Art. 188 of the Labor Code of the Russian Federation makes it possible to single out special legally significant circumstances, the proof of which makes it possible to demand compensation for the use of personal property of employees in the process of labor activity.

Firstly, such a circumstance is the ownership of the property used by the employee in labor activity to the employee, and not to the employer. This property does not have to be the property of the employee. It is important that the employee uses this property in the course of work on a legal basis.

Secondly, from the content of Art. 188 of the Labor Code of the Russian Federation, it follows that the employee must use the property in the interests of the employer, that is, the employer, not the employee, becomes the beneficiary from the use of the property during working hours. An employee performs a labor function in the interests of the employer. Therefore, the use of property for the performance of duties that are part of the employee's labor function allows the employer to be recognized as benefiting from the use of the employee's property.

Thirdly, a circumstance subject to verification when applying Art. 188 of the Labor Code of the Russian Federation, is the use of property by an employee with the knowledge or consent of the employer. The use of property in the course of work is a right, not an obligation of the employee. In turn, the employer can conclude an agreement with the employee on the use of his property in the process of employment. This agreement is concluded in writing, after its conclusion, the employee becomes obliged to use the property in the performance of his job duties. This obligation corresponds to the right of the employer to require the employee to fulfill his job duties using the property specified in the agreement. In this connection, the employer has an obligation to pay compensation for the use of the employee's property in the performance of labor duties. However, for the obligation to pay appropriate compensation to arise, it is not at all necessary to conclude a written agreement between the authorized representative of the employer and the employee on the use of property in the performance of labor duties. It is enough to notify the representative of the employer about the use of property by the employee in the performance of the labor function and the acceptance by the employer of the results of activities using the property of the employee.

As follows from the content of Art. 188 of the Labor Code of the Russian Federation, the amount of compensation paid to an employee in connection with the use of his property in the performance of labor duties is determined by agreement of the parties to the employment contract. However, in accordance with Art. 9 of the Labor Code of the Russian Federation, agreements concluded between an employer and an employee cannot diminish the rights guaranteed by law. The current legislation guarantees every citizen, including those who have entered into an employment contract, full compensation for losses incurred associated with the use of property in the performance of labor duties. Therefore, an agreement between an employer and an employee cannot contain in its content a condition that worsens the employee's position in comparison with the legislation. In this connection, the amount of expenses subject to compensation cannot be less than the real costs of the employee in the process of labor activity, as well as the real wear and tear of the property belonging to him, used in work. Consequently, the amount of compensation payments specified in a written agreement between the employer and the employee is not an obstacle to reimbursing the employee for real costs and losses.

Decree of the Government of the Russian Federation of February 8, 2002 No. 92 "On the establishment of norms for the costs of organizations for the payment of compensation for use for business trips of personal passenger cars, within which, when determining the tax base for corporate income tax, such expenses are related to other expenses related to production and sales ”, the following rates of compensation payments have been established: 1) when using cars with an engine capacity of up to 2000 cubic meters. cm inclusive - 1200 rubles per month; 2) when using passenger cars with an engine capacity of over 2000 kb. cm - 1500 rubles per month. Exceeding the specified standards entails the inclusion of amounts received as compensation by the employee in excess of the specified standards for compensation of expenses in the employee's income subject to taxation. In this connection, the employee's right to receive full compensation for expenses incurred in the performance of labor duties is violated.

Although, based on the given in Part 2 of Art. 164 of the Labor Code of the Russian Federation for determining compensation payments, the content of Art. 188 of the Labor Code of the Russian Federation, the employee's expenses in the performance of labor duties in an amount exceeding the listed standards refer specifically to compensation payments, and not to the employee's income. This circumstance does not appear in part 2 of Art. 164, nor in Art. 188 of the Labor Code of the Russian Federation as the basis for distinguishing between compensation payments and employee income. In connection with the above, the conclusion suggests itself that this by-law violates the rights of workers arising from the content of Part 2 of Art. 164 of the Labor Code of the Russian Federation and Art. 188 of the Labor Code of the Russian Federation.

In accordance with Part 1 of Art. 168 of the Labor Code of the Russian Federation, when sent on a business trip, the employer is obliged to reimburse the employee: 1) travel expenses to the place of business trip and back; 2) the cost of renting a dwelling; 3) additional costs associated with living outside the place of permanent residence (daily allowance); 4) other expenses incurred by the employee with the knowledge or permission of the employer.

Thus, the list of compensation payments established by law for business trips is not exhaustive. The employer may recognize other employee expenses as subject to compensation due to the fact that they are caused by the need to perform labor duties.

Part 2 of Art. 168 of the Labor Code of the Russian Federation states that the procedure and amount of reimbursement of expenses related to business trips are determined by a collective agreement or other local regulatory legal act of the organization. At the same time, the amount of compensation cannot be lower than the amount of compensation established by the Government of the Russian Federation for organizations financed from the federal budget. A local regulatory legal act on compensation for travel expenses cannot worsen the situation of employees in comparison with the legislation.

Resolution of the Government of the Russian Federation No. 729 "On the amount of reimbursement of expenses related to business trips in the territory of the Russian Federation for employees of organizations financed from the federal budget" dated October 2, 2002, established standards for reimbursement of travel expenses to and from a business trip.

In Art. 168 of the Labor Code of the Russian Federation also does not say anything about the possibility of limiting costs incurred by an employee in connection with a trip on a business trip. Therefore, it should be recognized that the limitation of amounts for reimbursement of travel expenses on business trips is in conflict with Part 2 of Art. 164 of the Labor Code of the Russian Federation and Art. 168 of the Labor Code of the Russian Federation.

In accordance with Art. 187 of the Labor Code of the Russian Federation, when the employer sends an employee for advanced training with a break from work, he retains his place of work (position) and average wages. Employees sent for advanced training with a break from work to another locality are paid travel expenses in the manner and amount that are provided for employees sent on business trips.

Thus, workers who take a refresher course in another locality receive compensation payments according to the rules established for expenses on business trips. However, in this case, it should be borne in mind that employees have the right to compensation for the expenses incurred during advanced training in full, the limitation of their right to full reimbursement of expenses does not correspond to Part 2 of Art. 164 of the Labor Code of the Russian Federation and Art. 187 of the Labor Code of the Russian Federation. As guarantees, these employees are provided: 1) preservation of the place of work (position) with the same working conditions; 2) preservation of average earnings during professional development; 3) providing an opportunity to use the skills acquired during advanced training in the process of work.

In accordance with Art. 169 of the Labor Code of the Russian Federation, when an employee moves, by prior agreement with the employer, to work in another locality, the employer is obliged to reimburse the employee: 1) the costs of moving the employee, his family members and transporting property, unless the employer provides the employee with appropriate means of transportation; 2) expenses for settling in a new place of residence. The specific amounts of reimbursement of the listed expenses are determined by agreement of the parties to the employment contract, but cannot be lower than the amounts established by the Government of the Russian Federation for organizations financed from the federal budget.

Decree of the Government of the Russian Federation No. 187 "On the amount of compensation by organizations financed from the federal budget for expenses to employees in connection with their relocation to work in another locality" dated April 2, 2003, it was established that the costs of moving an employee and his family members (including insurance the contribution for compulsory personal insurance of passengers on transport, payment for services for issuing travel documents, expenses for using bedding on trains) are reimbursed in the amount of actual expenses confirmed by travel documents, but not higher than the cost of travel, which is determined similarly to the cost of travel on a business trip and back ...

The employee has the right to demand compensation from the employer for the costs incurred. This right corresponds to the obligation of the employer to pay the employee appropriate compensation. The employee is not obliged to spend his own funds for the specified purposes. In this connection, the employer is obliged to provide the employee with the funds necessary for a business trip, advanced training in another locality, and moving to work in another locality. An employee's lack of sufficient funds allows him to refuse to fulfill obligations to travel on a business trip, improve his qualifications in another locality, and move to work in another locality. Such a refusal is not a violation of the current legislation, and therefore should not entail adverse consequences for the employee.

The employer is obliged to reimburse the employee for the actual expenses incurred upon the first payment of wages after the submission of documents confirming that they were incurred by the employee. Failure by the employer to comply with this obligation allows the employee to claim the application to the unpaid sums of compensation under Art. 236 of the Labor Code of the Russian Federation, which provides for the payment of interest for each day of delay in payment of the amounts due to the employee, including compensations established by the legislation and local regulatory legal acts of the organization.

guarantee labor worker

The current legislation does not oblige the employer to pay the employee who combines work with training, the costs incurred in connection with training. The content of the legislation contains only a small list of compensations that the employer is obliged to provide to employees who combine work with training.

In accordance with Part 3 of Art. 173 of the Labor Code of the Russian Federation, the employer is obliged to pay employees who study by correspondence at state-accredited educational institutions of higher professional education, once a school year, travel to the location of the educational institution and back. The minimum standard that is used by the employer to pay the cost of travel to and from the place of study is the standards established for travel on business trips. Although the employer at his own expense can pay the employee compensation and in a higher amount than the payment for travel on business trips and back to employees of organizations funded from the federal budget.

Based on Part 1 of Art. 174 of the Labor Code of the Russian Federation, the employer is obliged to pay employees studying in educational institutions of secondary vocational education that have state accreditation, once a school year, the cost of travel to the location of this educational institution and back in the amount of 50 percent.

In this case, as well as the minimum established by the state, the rates of travel on business trips and back, which are established for organizations financed from the federal budget, are used. However, the minimum in the situation under consideration is the payment of travel on business trips and back in the amount of 50 percent. The employer has the right, at his own expense, to increase the amount of compensation paid to an employee studying in a secondary specialized educational institution, for example, to pay the cost of travel to the place of study and back in full. In this case, the employer recognizes the need for the employee to improve his qualifications. In this connection, the employee's expenses for travel to the place of training and back are related to work.

Therefore, they should not be attributed to the employee's income. In accordance with Part 2 of Art. 164 of the Labor Code of the Russian Federation, they can be attributed to compensation payments. Thus, in the legislation, the employer's obligations to compensate employees who combine work with training are exhausted by paying the cost of travel to the place of training and back, and when training in secondary vocational educational institutions - partial payment fare in the amount of 50 percent. Payment of the cost of travel to the place of study and back must be made by the employer on the basis of the employee's application before the trip to the educational institution. When an employee submits an application with documents on the cost of travel to the place of study and back after a trip to an educational institution, compensation payments must be made on the day of the first payment of wages. Violation of these terms is the basis for the application of Art. 236 of the Labor Code of the Russian Federation, providing for the payment of interest for each day of delay in the amounts due to the employee.

In addition to obligations, the employer has rights to pay the employee the costs of training. The employer can, at his own expense, compensate the employee for expenses that arise during training in higher and secondary vocational educational institutions. For example, the employer can pay the cost of training the employee in the specified educational institutions. The employer's payment for the employee's studies allows us to conclude that he / she will improve his qualifications at the expense of the employer. In this connection, workers can be provided with guarantees and compensations, which in Art. 187 of the Labor Code of the Russian Federation are established for persons sent by the employer to improve their qualifications. In particular, the employee can receive compensation for the cost of travel to the place of study and back for passing the intermediate certification, reimbursement of housing costs, per diem in the amount established for business trips employees of organizations financed from the federal budget. These payments are directly related to the labor activity of an employee who is undergoing advanced training at the expense of the employer. In this regard, the amounts paid to the employee for reimbursement of expenses related to training at the expense of the employer should be recognized as compensation payments, and not the employee's income. These payments correspond to the definition of compensation, which is contained in Part 2 of Art. 164 of the Labor Code of the Russian Federation. Therefore, they can and should be recognized as compensation payments.

The condition on payment of the cost of training, compensation for other expenses to employees raising their qualifications at the expense of the employer can be placed in the local regulatory legal acts of the organization, in the agreement between the authorized representative of the employer and the employee. This condition improves the position of employees in comparison with the legislation.

In this connection, its inclusion in the local regulatory legal acts of the organization, in labor contracts corresponds to Art. 8, 9 of the Labor Code of the Russian Federation. After the inclusion of the relevant condition in local regulatory legal acts, labor contracts, it becomes binding.

After such inclusion, the employer's right to compensation payments becomes an obligation.

And, on the contrary, the employee has the right corresponding to this obligation to receive payments established in local regulatory legal acts, labor contracts. Thus, the legislation does not provide an exhaustive list of the employer's obligations to compensate employees for training costs. This list can be expanded at the expense of the employer.

Part 1 of Art. 184 of the Labor Code of the Russian Federation provides for the right of employees in case of damage to their health to reimbursement of expenses associated with medical, social and vocational rehabilitation. The types and amount of amounts paid to employees are determined by federal law.

In accordance with paragraphs. 3 p. 1 of Art. 8 of Federal Law No. 125-FZ "On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases" dated July 2, 1998, an employee is entitled to compensation for the following additional expenses: 1) for additional medical care (in excess of that provided for compulsory medical insurance), including for additional food and the purchase of medicines; 2) for outside (special medical and household) care of the insured, including that carried out by his family members; 3) for sanatorium treatment, including vacation pay (in excess of the annual paid leave established by law) for the entire period of treatment and travel to the place of treatment and back, to reimburse the cost of travel of the insured, and, if necessary, also the cost of travel of the person accompanying him to the place treatment and back, their accommodation and meals; 4) for prosthetics, as well as for the provision of devices necessary for the insured to work and in everyday life; 5) for the provision of special vehicles, their current and major repairs, payment of expenses for fuel and lubricants; 6) for vocational training (retraining). The listed additional types employees are provided at the expense of the Fund social insurance RF, in which the employee must be insured by the employer against industrial accidents and occupational diseases. To pay the cost of travel to the place of treatment and back, per diem for the time spent on the road, the standards established to compensate for the costs of employees of organizations funded from the federal budget during business trips are used.

The employer has the right, at his own expense, to provide employees with the right to receive additional compensation payments related to the need for them to undergo treatment, social and professional rehabilitation.

The foregoing allows the indicated payments to the employer to be included in the number of compensatory payments, since they correspond to the legal concept of compensation, which is given in part 2 of Art. 164 of the Labor Code of the Russian Federation. Labor activity of an employee is possible only when the employee for health reasons can perform labor duties. In this connection, the costs of treatment and maintenance of an employee's ability to work are directly related to work.

The Constitution of the Russian Federation in Art. 45 guarantees state protection of equal human rights and freedoms, and hence the labor rights of workers. Part 1 of Art. 1 of the Labor Code of the Russian Federation stipulates that the purpose of labor legislation is to establish state guarantees of labor rights and interests of employees and employers.

Among the basic principles of legal regulation of labor, Art. 2 of the Labor Code of the Russian Federation calls for ensuring the rights of everyone to be protected by the state of his labor rights and freedoms. This principle is concretized in chapters 56 - 58 of section XIII of the Labor Code of the Russian Federation, devoted to the protection of labor rights of workers.

In modern Russia, the number of private property organizations, individual entrepreneurs and other individuals using the labor of hired workers among employers is increasing, where the regulation of labor relations is not always based on labor legislation. In this regard, the role and importance of protecting the labor rights of workers, supervision and control over their observance is growing.

Part 1 of Art. 352 of the Labor Code of the Russian Federation provides that everyone has the right to protect their labor rights and freedoms in all ways not prohibited by law, which fully complies with Part 2 of Art. 45 of the Constitution of the Russian Federation.

The main ways of protecting the labor rights of workers are determined by the Labor Code of the Russian Federation in part 2 of the same article. In the new edition, Part 2 of Art. 352 of the Labor Code of the Russian Federation in the first place is the self-protection of workers of labor rights. This does not mean weakening the state protection of workers from violation of their rights, but is aimed at the need for special attention to the realization by workers of the possibility of self-defense in legal ways.

New edition of Part 2 of Art. 352 of the Labor Code of the Russian Federation expands the list of ways to protect labor rights and freedoms, supplementing them with judicial protection, which must be provided by virtue of Art. 46 of the Constitution of the Russian Federation, which enshrines the right of everyone to judicial protection.

In accordance with the new edition of Part 2 of Art. 352 of the Labor Code of the Russian Federation, the main ways to protect labor rights and freedoms are:

self-defense by employees of labor rights (Articles 379 and 38 of the Labor Code of the Russian Federation);

protection of labor rights and legitimate interests of workers by trade unions (Articles 370 - 383 of the Labor Code of the Russian Federation);

state supervision and control over the observance of labor legislation and other regulatory legal acts containing labor law norms;

judicial protection (Articles 382, 383, 391-397 of the Labor Code of the Russian Federation).

In addition, we promote the protection of the labor rights of employees by out-of-court consideration of individual and collective labor disputes and their resolution in the prescribed manner (Articles 381-390, 398-418 of the Labor Code of the Russian Federation).

To ensure the protection of the rights and freedoms of citizens and public organizations in the formation and implementation of state policy, as well as the implementation of public control over activities federal bodies the state authorities of the constituent entities of the Russian Federation and local self-government bodies directed the activities of the Public Chamber of the Russian Federation - a newly created body.

In the future, the methods of protecting the labor rights of workers are covered in a sequence corresponding to the structure of the Labor Code of the Russian Federation.

As for the workers' self-defense of their rights, the Labor Code of the Russian Federation provides for their forms and the duty of the employer not to interfere with workers in the exercise of self-defense.

To the forms of self-protection by workers of their labor rights, Art. 379 of the Labor Code of the Russian Federation includes:

1) the employee's written refusal to perform work not provided for by the employment contract;

2) a written refusal of an employee to perform work that directly threatens his life and health, with the exception of cases provided for by the Labor Code of the Russian Federation and other federal laws.

At the time of refusal from the specified work, the employee will retain all the rights provided for by the Labor Code of the Russian Federation, other laws and other regulatory legal acts.

The employee's refusal to perform work on a legal basis, including in the event of a danger to his life and health due to violation of labor protection requirements, or from performing heavy work and work and work with harmful and (or) dangerous conditions labor that is not provided for by an employment contract does not entail disciplinary proceedings against him (Article 220 of the Labor Code of the Russian Federation).

For example, a delay in the payment of wages for more than 15 days may serve as a legal basis for the suspension of work. This right cannot be exercised in the cases provided for by the Labor Code of the Russian Federation (Article 142 of the Labor Code of the Russian Federation).

The Supreme Court of the Russian Federation explained that since Art. 142 of the Labor Code of the Russian Federation does not oblige an employee who has suspended work to be present at his workplace during the period of time for which he has suspended work, and also taking into account that by virtue of Part 3 of Art. 4 of the Code, violation of the established deadlines for the payment of wages or the payment of it not in full is referred to forced labor, he has the right not to go to work until the payment of the delayed amount to him.

Ways to protect employees of their labor rights should also include their appeal to the competent authorities for the resolution of individual and collective labor disputes.

In accordance with Part 2 of Art. 45 of the Constitution of the Russian Federation, everyone has the right to protect their rights, freedoms and legitimate interests in all ways not prohibited by law, enshrined in Part 1 of Art. 21 of the Labor Code of the Russian Federation. In this regard, workers, protecting their labor rights, can use not only the methods specified in the Labor Code of the Russian Federation.

Judicial protection of the labor rights of employees is carried out when individual labor disputes are resolved by courts.

A special place among the methods of protecting the labor rights of workers is occupied by state supervision and control over the observance of labor legislation and other normative legal acts containing labor law norms, since in its implementation the power of state (legal) influence on employers and their representatives is used, forcing them to compulsory fulfillment of the orders of the authorized bodies to eliminate the violations found, and, in addition, measures of state coercion - bringing those responsible for violating labor laws to disciplinary, administrative or criminal liability in the appropriate case

State supervision and control - the activities of authorized state bodies aimed at checking the compliance of employers' actions in labor management with labor legislation (establishing working conditions and applying labor legislation, other normative legal acts of collective agreements, agreements), preventing and detecting violations, bringing to justice those responsible in violations of employers and their representatives.

State bodies exercising supervision and control over the observance of labor legislation, other normative legal acts containing labor law norms, interact with trade unions, their inspections authorized to carry out public control in this area.

The implementation of the administrative reform led to significant changes in the structure and powers of the federal executive body. In particular, instead of the Ministry of Labor and social development the structure of federal executive bodies, approved by Decree of the President of the Russian Federation of March 9, 2004 No. 314 "On the system and structure of federal bodies and executive power" provides for the presence of a Federal Service for Labor and Employment within the Ministry of Health and Social Development of the Russian Federation. Decree of the Government of the Russian Federation of April 6, 2004 No. 156 "Issues of the Federal Service for Labor and Employment" stipulates that this service is a federal executive body exercising the functions of supervision and control over compliance with labor legislation and other regulatory legal acts containing labor standards. rights and other functions. According to the Resolution of the Government of the Russian Federation of June 30, 2004 No. 324, the Regulation on the Federal Service for Labor and Employment, it is primarily entrusted with the functions of supervision and control in the sphere of labor, employment and alternative civil service. These functions are carried out by the federal labor inspectorate, which is part of this Federal Service. The very same Federal Service for Labor and Employment is under the jurisdiction of the Ministry of Health and Social Development of the Russian Federation.

The structure of federal executive bodies also includes other bodies authorized to exercise state supervision in the field of labor, for example, the Federal Service for Technological Supervision, the Federal Service for Atomic Supervision.

This was followed by the Decree of the President of the Russian Federation of May 20, 2004 No. 650 "Questions of the structure of federal executive bodies", by which the Federal Service for Technological Supervision and the Federal Service for Atomic Supervision were transformed into the Federal Service for Environmental, Technological and Nuclear Supervision, which was headed by the Government. RF.

Changes in the structure and powers of federal executive bodies have not yet been fully legalized. Therefore, when covering the issues of state supervision and control, previously adopted normative legal acts are also used, which have still retained legal force.

In accordance with Art. 353 of the Labor Code of the Russian Federation, the bodies of state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law are:

I) the federal labor inspectorate;

2) bodies of specialized federal supervision;

3) federal executive authorities, executive authorities of the constituent entities of the Russian Federation;

4) The Prosecutor General of the Russian Federation and prosecutors subordinate to him.

The Federal Labor Inspectorate exercises state supervision and control over the observance of labor legislation and other regulatory legal acts containing labor law norms by all employers on the territory of the Russian Federation.

Relevant federal executive authorities, performing the functions of supervision and control in the established area of activity, exercise state supervision over compliance with the rules for the safe conduct of work in certain industries and at some industrial facilities, along with federal labor inspectorates.

Federal executive bodies, executive bodies of the constituent entities of the Russian Federation, local self-government bodies exercise intradepartmental control over the observance of labor legislation and other normative legal acts containing labor law norms in their subordinate organizations in the manner and under the conditions determined by federal laws and laws of the constituent entities of the Russian Federation. In connection with the reform of the system and structure of federal executive bodies, the federal ministry is not entitled to exercise control and supervision functions in the established area of activity, except for cases established by decrees of the President of the Russian Federation or decrees of the Government of the Russian Federation.

The Prosecutor General and prosecutors subordinate to him, in accordance with federal law, exercise state supervision over the exact and uniform implementation of labor legislation and other regulatory legal acts containing labor law norms.

State bodies of supervision and control interact in the implementation of their activities with each other, as well as with trade unions, labor inspectors of trade unions, employers' associations, and other organizations.

CHAPTER 2. SOCIAL GUARANTEES OF INDIVIDUALS IN CIVIL LAW

2.1 Rights of individuals

Article 1 of the Civil Code of the Russian Federation formulates the basic principles (principles) in the acquisition and implementation of subjective civil rights by citizens (individuals).

It must be remembered that the participants in civil relations are equal. The equality of participants in civil legal relations should be understood as their legal (but not economic) equality in relation to each other, symbolizing the presence of horizontal relations between participants who are not in official or other legal subordination.

Article 1 of the Civil Code of the Russian Federation defines the principle of the inadmissibility of arbitrary interference by anyone in private affairs, where the key is the concept of a private business as the activity of a citizen or a legal entity (as a private person) based on private interest in the application of private, not public law ... It can be private entrepreneurial activity, and the private life of a citizen, and in general everything that is outside the state, political and other public activities pursuing the public interest. A private matter of a citizen or legal entity must be protected by law from arbitrary interference in it by any person or state. Of course, the degree of secrecy is assumed to be different depending on the nature of the private matter.

The need for the unhindered exercise by citizens and legal entities of civil rights is a cornerstone and condition for the functioning of civil legislation. Ultimately, this is the question of the existence in the country of a general rule of law and the rule of law.

A direct continuation of the principle stated above is the principle of ensuring the restoration of violated rights and their judicial protection.

In paragraph 2 of Art. 1 of the Civil Code enshrines the principle of freedom of citizens (individuals) and legal entities in the acquisition and exercise of civil rights provided for by law. At the same time, the concepts of "one's own will", "autonomy of the will" and "in one's own interest" determine the general direction in action this principle at the stage of application of civil legislation. Of course, they cannot be interpreted literally, since there may be cases when civil rights are acquired and exercised “not of their own free will” (for example, by the actions of guardians in relation to minors) and “not in their own interest,” but in the interests of others, society and the state.

The Civil Code of the Russian Federation (Article 2) distinguishes between three types of relations regulated by civil law: property relations, personal non-property relations associated with them and relations, the objects of which are inalienable human rights and freedoms, as well as other intangible benefits.

Among these relations, the dominant position is occupied by property relations operating in the economic sphere (paragraph 1 of paragraph 1 of Article 2). Their main object is property that acts or can act as a commodity in commodity-money circulation.

Personal non-property relations associated with property (paragraph 1, paragraph 1 of Article 2) most often arise about the right of authorship, the right to a name and other personal non-property rights to works of science, literature and art, to inventions, utility models, industrial designs , personal non-property rights of performers of works of literature and art. The objects of these relations are rights that have no economic content and are not amenable to direct monetary value. But the holders of these rights at the same time have property rights, primarily the right to the exclusive use of the results of intellectual activity. In this regard, they can derive material benefits and receive income on the basis of concurrently created property relations.

A separate type is the relationship for the protection of inalienable human rights and freedoms and other intangible benefits (p. 2). These relations are not directly related to property relations, although in case of violation of the relevant rights, freedoms and benefits, along with other measures, monetary compensation for moral damage caused to their owners can be applied. The Civil Code is in the position of an open list of rights, freedoms and other intangible benefits protected by civil law, which significantly expands the scope of its application.

2.2 Guarantees when concluding a civil law contract (for example, a work contract)

The contract is one of the most important institutions of the law of obligations, since is a legal fact underlying the legal relationship. An agreement is an agreement between two or more persons on the establishment, change or termination of civil rights and obligations (clause 1 of article 420 of the Civil Code of the Russian Federation).

The agreement is the most important means of legal regulation of property and related non-property relations and has the following main features.

1. The conclusion of an agreement leads to the establishment of a legal connection between participants in civil circulation and the emergence of a specific legal relationship between two or more subjects of civil law.

2. In contractual relations, the general principles of civil law are implemented. The relations of its participants are based on mutual equality. The parties are independent from each other regardless of whether they are citizens, legal entities, national-state or administrative-territorial entities represented by their authorities and administration. A contract arises as a result of an agreement between its participants, requires reaching an agreement on entering into an obligation and determining its terms, and coercion to conclude an agreement is possible only in cases directly provided for by law.

3. The exercise of the rights stipulated by the contract and the fulfillment of obligations are ensured by measures of state-legal influence, which gives the obligation legal force, consisting in the possibility of applying coercive measures to the execution of the stipulated conditions of the contract by the debtor.

When concluding a contractual relationship, it is of great legal importance to determine the relationship between the norms of the law and the expression of the will of the parties when agreeing on the rights and obligations in the contract. The discretion of the parties and their agreement on the composition and procedure for performing actions, taking into account their interests and capabilities, is of decisive importance for the development of contractual conditions.

An agreement is a volitional action of two or more persons as a single expression of will, expressing their common will. In order to form and consolidate the general will in the contract, it must be free from any external influence, therefore the legislator in Art. 421 of the Civil Code of the Russian Federation specifically reveals the meaning of the principle of freedom of contract.

1. Citizens and legal entities are free to conclude an agreement, and the decision on concluding a contractual relationship depends only on the will of potential counterparties. Compulsion to conclude a contract is not allowed, except in cases where such an obligation is directly provided for by law or a voluntarily accepted obligation.

2. Freedom of contract provides for the freedom to choose the other party when concluding a contract.

3. The parties may conclude an agreement, both provided for and not provided for by law or other legal acts, provided that it does not contradict the current legislation. The parties have the right to conclude a mixed contract, which contains elements of various contracts, and in this case they will be guided by the rules on the relevant contracts, the terms of which are contained in the mixed contract, unless the parties agree on what legislation applies to their contract.

4. The parties independently determine the terms of the agreement, except when the content of the relevant term of the agreement is directly prescribed by law or other legal acts. This provision allows participants in civil turnover to realize their property and economic independence and compete on equal terms with other participants in market relations. The freedom to conclude contracts and determine their content must be inseparably combined with the obligation to fulfill the accepted conditions, and their failure to fulfill or improper fulfillment is a civil offense. Therefore, ensuring accurate and timely fulfillment of contractual obligations is a task of national importance, since reliability of contractual ties and increasing their stability is the main factor in the development of market relations.

The Civil Code obliges the contractor (employee) to fulfill the contract, but at the same time guarantees him the fulfillment of the contract on time, payment for the completed contract, the distribution of risks, and also determines the obligation of the customer to accept the results of the work.

From Art. 708 of the Civil Code, it follows that clause 2 of Art. 314 of the Civil Code, which allows the execution of contracts in which there is no condition on its term (in such cases, the rule of "reasonable time" is applied), does not apply to work contracts. For a contract, the term is an essential condition of the contract, and if the parties failed to reach an agreement on this condition, the contract is recognized as not concluded.

However, the above requirement applies only to two dates - the initial and the final. The parties are given the opportunity to include in the contract also intermediate terms (deadlines for the completion of individual stages of work). If an agreement on this issue has not been reached and none of the parties insists on its inclusion in the agreement, the agreement will be considered concluded, but without interim terms.

The special significance of the deadline lies in the fact that it is precisely with its violation of the Civil Code (clause 2 of Article 405) that it connects the consequences provided for in case of delay acceptance of performance, etc.).

The Civil Code regulates the issue of price in more detail. First of all, it should be noted that, as follows from paragraph 1 of Art. 709 of the Civil Code, containing a link to clause 3 of Art. 424 of the Code, the price, in contrast to the term, is not an essential condition of the work contract. If it is absent in the contract and it is impossible to determine on the basis of its terms, payment should be made at a price that, under comparable circumstances, is usually charged for similar work. This means that the price in the contract agreement, as in all other contracts for which the law does not provide otherwise, may be absent.

The Civil Code contains an indication of the indispensable elements of the price. There are two of them: compensation for the costs of the contractor and the remuneration due to him. This norm is important mainly when a pre-contractual dispute arises between the parties brought to court. In more complex types of contracts, the price is usually determined by an estimate, which allows one to judge not only the size of the price, but also its components. The estimate drawn up by the contractor acquires legal significance from the moment it is agreed with the customer.

Another question is related to the price: what will happen if the contractor managed to save the necessary funds during the work in comparison with how they are defined in the estimate? Regardless of whether the savings were due to the fact that the contractor used more progressive methods of performing work, or for reasons beyond the control of the customer (for example, the materials or services of third parties required for the work became cheaper), it is recognized that the customer should pay for the work in the amount in which it was provided for by the price specified in the contract.

The Civil Code highlights in Art. 705 two types of risks. The first is associated with the accidental death or accidental damage to materials, equipment and a thing or other property transferred for processing (processing) used in the performance of the contract (boards, cement, transferred to complete the building construction equipment, fabrics for sewing dresses, etc.). The risk in question is borne by the provider of the property in question. This expresses the principle known since the time of Roman law: the risk of chance is borne by the owner. In the Civil Code itself (Art. 211), the corresponding general rule reads as follows: "The risk of accidental loss or accidental damage to property is borne by its owner, unless otherwise provided by law or contract." The second variant of risk distribution refers to accidental death or accidental damage to the result of the work performed before its acceptance.

The Code has established certain boundaries for a party to bear relevant risks. Firstly, the owner, and therefore the contractor, are exempted from the risk of the loss of materials and, accordingly, the death of the result of labor, if the specified consequences occurred through the fault of the counterparty, and secondly, by virtue of the norm enshrined in paragraph 2 of Art. 705 of the Civil Code on the consequences of delay in the transfer or acceptance of the result, in case of delay they are borne by the delayed party. The specified norm is peremptory. Consequently, it will operate even when the parties to the contract establish otherwise.

The issue of the advance payment and the deposit is especially highlighted. The obligation of the customer to pay the contractor an advance payment (deposit) must be provided for in the law or in the contract. The transfer of the advance payment (deposit) puts the customer in a certain dependence on the contractor and imposes on him the risk associated, for example, with the fact that the contractor, not having time to complete the work, went bankrupt. In order to protect the interests of the customer, a bank guarantee may be applied. Its meaning in this case is that the bank, for a certain fee paid to it by the contractor, provides the customer with a guarantee that the contractor will work out or return the amount of the advance.

The Code gives the customer the right (unless otherwise provided in the contract) to refuse to execute the contract at any time without explaining the reasons for the refusal. Such a reason may be the bank's refusal to issue a loan to the customer, which he counted on when concluding the contract. Protecting the interests of the contractor in such cases, the Code provides for the need for the customer to pay to his counterparty part of the established amount for that share of the work that he completed before the customer received a notice of termination of the contract. The contractor has the right to demand also compensation for losses, which, however, must not exceed the total cost of the entire result of work under the contract.

The contracting agreement ends with the contractor transferring the result of the work, and the customer accepting it. The need to accept the result of the work is one of the obligations of the customer, constituting the contract itself. For this reason, the Code regulates in detail when and how the customer must carry out acceptance, giving the party the opportunity to detail the mandatory norms contained in the Code and deviate from the dispositive ones.

Along with property rights as one of the types of absolute rights mediating the statics of property relations, another type of absolute rights is of great importance - the exclusive right to ideal results of intellectual activity and equated means of individualization of legal entities, products, works and services. These types of absolute rights differ significantly both in their objects and in the forms of activity within which they are created.

Unlike physical labor, which usually results in things, intellectual activity is the mental (mental, spiritual, creative) work of a person in the field of science, technology, literature, art and artistic design (design). All people who perform certain labor operations act consciously, meaningfully. For example, typesetters of a printing house that prints books. However, in the civil law understanding, intellectual is not material-production activity, ending with the production of books as things, but spiritual activity, ending, for example, with the creation of an ideal system of concepts of the science of civil law. Typesetters, for all the importance of their work, only materialize the ideal results of the author's mental work.

The result of intellectual activity is its product, expressed in an objective form, called, depending on its nature, a work of science, literature, art, invention or industrial design.

The ideal nature of the results of intellectual activity does not at all indicate its insignificance or isolation from the production of things necessary for people and other values of human society. Science and technology make it possible to use the wealth and forces of nature in the interests of man. Literature, art, design play an important role in the formation of his spiritual world and aesthetic level.

In a market environment, the timely and widespread use of the results of mental work contributes to increased efficiency entrepreneurial activity, quality and competitiveness of goods, works and services. Exclusive rights, first of all, to inventions, utility models, industrial designs, trademarks and other types of designations of goods are an important part of the intangible assets of enterprises. Along with other values, these rights can be invested in business and other activities. Property rights to the results of intellectual activity can also serve as a contribution to the property of a business partnership or company (clause 6 of article 66 of the Civil Code).

In order to create favorable conditions for building up the intellectual potential of society, the Constitution of the Russian Federation guarantees everyone the freedom of literary, artistic, scientific, technical and other types of creativity (part 1 of article 44). Since the legal regime of individual results of mental labor does not in any way depend on national and territorial characteristics, "legal regulation of intellectual property" is attributed to the jurisdiction of the Russian Federation (clause "o" of Art. 71).

The most important role in creating conditions for the protection and use of the achievements of the human mind is civil law. And although it also cannot directly regulate the processes of mental activity, it is able to exert a positive organizing effect on the relationship for the protection and practical application of the results of this activity.

Exclusive rights as an institution of civil law traditionally perform the following functions:

2) establishing the mode of their use;

3) material and moral encouragement and

Depending on the nature of the result, the recognition of authorship does not depend (works of literature, science, art) or depends on the registration of the result (inventions, utility models, industrial designs).

Exclusive rights establish the mode of use of the result of intellectual labor, i.e. determine who is entitled and who is not entitled to apply a given result. Within the framework of exclusive rights, the authors of works of science, literature, art, inventors and designers, their employers and other persons are also vested with personal non-property and property rights, methods and forms of protecting these rights are established.

Copyright, related, patent and similar rights, being exclusive absolute rights, provide their owners with a legal monopoly on performing various actions (using the results of their creativity and disposing of them), while prohibiting all other persons from performing these actions. Exclusive rights were formed in many countries several centuries ago as a reaction of the right to the massive use of the commodity-money form in the field of intellectual activity and the onerous transfer of rights to use its results.

The current legislation implements the right to protection of subjective civil rights in various forms: judicial protection (Article 11 of the Civil Code of the Russian Federation); self-defense (Article 14 of the Civil Code of the Russian Federation); property liability in the form of compensation for losses caused by state and municipal authorities (Article 16 of the Civil Code of the Russian Federation), etc.

The right to defense is one of the powers of subjective civil law, which provides for the possibility of an authorized person applying law enforcement measures that correspond to the nature of the subjective law itself.

Russian legislation in its rule-making uses several terms related to ensuring and protecting the rights of citizens and legal entities, which is not entirely correct from the point of view of legal technology. The term "protection" provides for the formation of legal, physical and material measures aimed at ensuring the exercise by all subjects of the civil rights and freedoms guaranteed by the Constitution of the Russian Federation. As N.I. Matuzov, "subjective rights are constantly protected, and require protection when they are violated." The right to defense is determined by the measure of possible behavior of the entitled and obligated person and is linked to law enforcement measures. The right to defense is aimed at achieving provisions that facilitate the implementation of subjective civil rights at various stages of the actions of the entitled and obliged person and pursues restorative or suppressive goals. The conditions and limits of protection of subjective civil rights are primarily based on the basis of their occurrence, therefore, the scope of protection for subjects of civil turnover is carried out within the limits specified by legislation or the will of their participants.

For the protection of subjective civil law, depending on the object and nature of the violation, such measures and methods are applied that make it possible to really protect the interests of the participants in legal relations. All the measures and methods indicated in the Civil Code of the Russian Federation can be divided into three groups depending on the mechanism of influencing the offender of subjective civil rights.

1. Measures of operational influence applied to violators of civil rights and obligations without recourse to the relevant law enforcement, state or public authorities, for example, retention of property until full reimbursement of costs and losses to the creditor by the customer (Article 359 of the Civil Code of the Russian Federation), performance by an authorized person of work not completed the debtor, at his expense (Article 475 of the Civil Code of the Russian Federation).

2. Appeal with a demand for the protection of the violated right to administrative, law enforcement, judicial and public bodies. An authorized person, as a participant in a civil legal relationship, in cases specified by law, applies to a higher authority or to a higher official to resolve the violated right.

Law enforcement agencies, primarily the Prosecutor's Office of the Russian Federation and its subordinate bodies, play an important and active role in protecting and protecting the rights and freedoms of citizens, strengthening the rule of law and law and order. Prosecutorial bodies take measures to eliminate violations of the law, bring perpetrators to justice and exercise state supervision over the implementation of laws throughout Russia.

Civil and civil procedural law provides for the protection of violated and contested civil rights in the judiciary, taking into account the jurisdiction of the cases. The protection of the rights and freedoms of subjects of civil turnover is carried out by the judiciary through the appeal of the authorized person to a court of general jurisdiction, an arbitration or arbitration court or to the Constitutional Court of the Russian Federation.

3. Self-defense of civil rights is the commission by an authorized person of legal actions of an actual order aimed at protecting his personal or property rights and interests (Article 14 of the Civil Code of the Russian Federation). This method of protection is used in conditions when the authorized person has limited opportunities to contact law enforcement, state or public authorities.

Article 12 of the Civil Code of the Russian Federation provides an open list of ways to protect civil rights. So, the protection of civil rights is carried out by:

recognition of rights;

restoration of the situation that existed before the violation of the right, and the suppression of actions that violate the right or create a threat of its violation;

recognition of a voidable transaction as invalid and application of the consequences of its invalidity, application of the consequences of the invalidity of a void transaction;

invalidation of an act of a state body or local self-government body;

self-defense rights;

awards to the performance of duties in kind;

compensation for losses;

collection of a forfeit;

compensation for moral damage;

termination or change of legal relationship;

non-application by the court of an act of a state body or a local self-government body that is contrary to the law;

in other ways provided by law.

Russian legislation allows for the use of administrative measures and criminal prosecution to protect civil rights. This provision is based on constitutional norms that secure and protect human and civil rights and freedoms. The Constitution of the Russian Federation, as a law of direct action, allows in relation to a civil offense to apply measures to protect subjective civil rights using legal mechanisms incorporated in other branches of law, primarily in law enforcement (for example, in Articles 137, 139, 183 of the Criminal Code of the Russian Federation).

CHAPTER 3. RATIO OF SOCIAL GUARANTEES IN LABOR AND CIVIL LAW

3.1 The legal nature of an employment contract and a civil contract

Due to the operation of the economic law of supply and demand, the demand for labor, labor, as in any market, is derivative and depends on the demand for products that will be manufactured using this resource. And the specificity of the product itself and the form of its sale and purchase predetermine the relationship between the seller and the buyer, their duration, legal registration of the purchased labor services.

In order to provide legal support for the formation of the labor market, the Law of the Russian Federation "On Employment of the Population in the Russian Federation" of February 19, 1991 was adopted, which consolidated new trends in the labor market characteristic of the Russian economy, singled out, along with employees and employers, other participants in the labor market and identified various forms of employment. On its basis, the Concept of Employment was formulated and adopted, which was based on such fundamental provisions as:

Lack of strict state regulation of labor relations;

Elimination of outdated work prohibitions;

Labor flexibility in terms of forms of employment and organization of the labor process;

Freedom of workers and employers in the labor market;

The right of employers to decide for themselves the size of the workforce, the quality of work and the release from redundant workers.

The formation and development of the labor market took place in the context of a reduction in traditional industries and sectors of the national economy, accompanied by growing unemployment, which led to the expansion of the practice of attracting the unemployed part of the labor force to work on the basis of civil law contracts. This was facilitated not only by the growth of small and medium-sized businesses with unpredictable conditions for the production and sale of products (performance of work), but also by the presence of archaic, not in keeping with the spirit of the times, methods of legal regulation of labor organization on the basis of normative acts that preserve the ideas and principles of administrative team methods of work management.

Formulated by L.S. Tal features of an employment contract as an agreement in which one person promises to another the application of his labor force to his enterprise (farm) as a dependent worker, subordinate to the master's authority and the internal order of the enterprise, formed for many years a model of legal relationship: "employee - employer" ... At the same time, the scientist considered the provision of labor force as a characteristic feature of an employment contract industrial enterprise(to the farm) for a long period, the subordination of the employee to the internal order and the owner's authority, as well as the promise (obligation) of the employer to pay remuneration (wages).

The criteria for delimiting the labor of an industrial worker from entrepreneurial labor, independent, regulated by a civil contract, commissions, commissions, etc., were supplemented and concretized by many labor scientists at later stages of the development of labor law. So, to distinguish an employment contract from civil contracts, additional criteria were proposed such as: performance of work by personal labor; the citizen's consent to work as a worker or employee; inclusion of the employee in the staff of the enterprise; payment of wages (and not remuneration) in accordance with the quantity and quality of work; performance by the employee of the labor function; the collective nature of labor, etc. Exploring the process of providing production with personnel, A.S. Pashkov reduced the signs of an employment contract to three criteria: substantive (performance of work in accordance with the labor function); organizational (subordination of the employee to the internal labor regulations of the enterprise) and property (the nature of remuneration). Later, however, the author believed that “the time is ripe to refer to the sphere of labor legislation all labor agreements providing for the performance of work, regardless of their term, including civil contracts and commissions”.

In the modern theory of contract law, attention is drawn to the fact that with the appearance in the new Civil Code of the Russian Federation of chapter 39 "Reimbursable provision of services", a work contract, often used in civil law to legalize relations for the performance of various kinds of work, gave way to a special obligation - a reimbursable contract provision of services. The fundamental difference is that the contract for the provision of paid services has as its subject not the materialized result of labor, but labor as such, expressed in "performing a certain action" or "carrying out a certain activity" (Article 779 of the Civil Code of the Russian Federation), which brings it closer to the implementation an employee of his labor function (Articles 15, 56 of the Labor Code of the Russian Federation).

It seems that the most important argument testifying to the increase in the importance of civil law in the regulation of labor relations is not so much an obvious blurring of the lines between an employment contract and a civil law contract for the provision of services, as a consistent position of the legislator, aiming to combine the efforts of two contracts in the legal provision of a single subject - human labor activity.

Having studied in detail the theoretical premises of the two contracts and the practical forms of their implementation, V.N. Skobelkin came to the conclusion that there are no sufficiently definite and clear criteria that make it possible to confidently separate an employment contract from a civil one, since both contracts regulate homogeneous relations associated with a person's labor activity. Along with the expansion of the influence of labor law on relations regulated by the norms of other branches of law, there is also a penetration of civil law regulation into the area public organization labor (contracts for work, lease, etc.).

The close interaction of contracts of labor and civil law in the regulation of a single subject - human labor activity - is clearly manifested in the Federal Law of July 25, 2002 No. 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation." This Law, guided by the norms of international law, and above all by the ILO Convention No. 143 and the ILO Recommendation No. 151 on migrant workers, promotes the idea of free choice by a foreigner of a job site and legal registration of relations between the parties.

With regard to the current state of the labor market and the tasks of attracting and using foreign labor, the law determines legal position foreign citizens and the conditions for the implementation of their labor activity, which: are legally formalized either on the basis of an employment contract or a civil law contract for the performance of work (provision of services). Further, throughout the text of the Law, the possibility of alternative decisions made by the parties when choosing a specific type of contractual obligation is consistently observed. This novelty in the regulation of the labor of foreign citizens on the territory of Russia expands the range of their purely labor interests (along with entrepreneurial and other interests), going beyond traditional labor legal relations formalized exclusively by an employment contract (Article 13 of the Law). The Law does not establish any opposition of one contract to another, no preference for a specific method of legal regulation of labor activity.

Such distinctions can be made in three following criteria: 1) on the subject of the contract; 2) by submission to the rules of the internal labor regulations; 3) according to who is obliged to organize labor and labor protection.

The specificity of the legal relationship between the employee and the employer is that all rights and obligations in them are of a personal nature, that is, in the process of performing work, an employee cannot replace himself with someone else without the consent of the employer. Thus, the subject of an employment contract is the labor process itself, and in civil relations it is the result of labor (for example, an established program, etc.).

When concluding an employment contract with an employer, an employee is obliged to obey the internal labor regulations (clearly regulated work schedule, rest time, etc.) and be responsible for their violation, which is not the case when concluding a civil contract. If you write in the contract that you are hiring a programmer for a period until the full computerization of the company with such and such a salary, then whatever you call it, in fact it will be an employment contract. When you conclude an agreement on the paid provision of such and such services, which must be provided by such and such a date, and subsequently draw up an act of acceptance and delivery of work, then this will already be a civil contract.

Also, when concluding an employment contract, the obligation to organize work lies entirely with the employer, and when concluding a civil law contract, the citizen (employee) himself organizes his work and his protection.

An employment contract is concluded in writing. Hiring is formalized by order of the head of the organization. Do not forget to familiarize the employee with this document and take the corresponding receipt from him. When concluding a civil law contract, the publication of an order is not required. The basis for the emergence of legal relations between the subjects is the contract.

One of the conditions of an employment contract may be a test to verify the compliance of an employee with the work entrusted to him (probationary period). The civil law contract does not provide for a probationary period.

Both labor and civil law contracts provide for a clause on the procedure for remuneration. There are also differences here. Under an employment contract, wages are paid at least every fortnight. Under a civil law contract - by agreement of the parties. At the end of each calculation period, it is necessary to draw up and sign an acceptance certificate for works (services), which is the basis for settlements between the parties under a civil law contract.

Wages paid under an employment contract are fully subject to the unified social tax (UST). As for civil law contracts, everything is more complicated here. The tax base for UST in terms of the amount of tax credited to the Social Insurance Fund does not include remuneration paid individuals under contracts of a civil nature, copyright and licensing contracts. That is, when concluding a civil law contract with a person, the employer will have to pay contributions to the Pension Fund and the Mandatory Health Insurance Fund, and no contributions to the Social Insurance Fund are required. This situation is explained by the fact that at the expense of the Social Insurance Fund the temporary disability of the employee is paid, and there is no such concept in the civil law contract.

But if the person you hired on a temporary contract basis is not listed anywhere else, labor inspectors will most likely insist that their work is permanent. Of course, such a nuisance will only happen if they receive a complaint. For example, the fact that the employee was not paid a sick leave.

Termination of an employment contract is possible on the grounds provided for in Articles 80 (“Termination of an agreement on the initiative of an employee”), 81 (“Termination of an employment contract on the initiative of an employer”), 83 (“Termination of an employment contract due to circumstances beyond the control of the parties”) of the Labor Code RF. In both cases, the dismissal is formalized in the form of an order for the organization. A civil law contract is terminated upon the expiration of its term or is terminated on the grounds provided for by the Civil Code of the Russian Federation, which is formalized by an agreement on termination of the contract.

The combination of contracts of the two types in the regulation of labor activity can also be traced on the example of the organization of labor of workers “without taking up a regular position”. So, the decree of the Government of the Russian Federation of April 4, 2003 No. 197 "On the specifics of part-time work of pedagogical, medical, pharmaceutical workers and cultural workers" also determined the specifics of the legal regulation of the labor of such workers, and the Ministry of Labor of the Russian Federation, by its decree of June 30, 2003 No. 41 established that the work performed by them "is not considered part-time and does not require the conclusion (registration) of an employment contract." Consequently, these and similar works can be regulated by contracts of a civil nature.

These normative acts seem to me rather controversial, tk. part-time workers have the right to the same set of social guarantees as the main employees, with the exception of benefits that are provided to persons combining work with training and working in the Far North and equivalent areas (Article 287 of the Labor Code of the Russian Federation). And from the above it follows that these employees lose the right to guarantees, both general and special, specified in the Labor Code. It should also not be forgotten that in case of violation of the rights of an employee of the Labor Code, he is provided with the protection of labor rights and freedoms by the state (Article 2 of the Labor Code of the Russian Federation), and civil legislation, in principle, provides more opportunity to protect their rights, obliges the citizen to defend them independently.

CONCLUSION

Guarantees are the means, methods and conditions by which the exercise of the rights granted to employees in the field of social and labor relations is ensured. Guarantee payments are of a specific nature. They are not remuneration for labor for the reason that they are not commensurate with the quantity and quality of the labor actually expended by the employee in the period for which they were paid. Their purpose is to prevent possible losses in earnings due to the fact that the employee is distracted from performing his job duties.

The concept of "compensation" given in Art. 164, the meaning coincides with the concept of "compensation payments", which has long been established in the science of labor law. In educational and scientific literature on labor law, compensation payments are characterized as payments made in cases provided for by law to reimburse workers and employees for expenses incurred by them in connection with the performance of labor duties or in connection with the need to come to work in another locality.

Employees are provided with guarantees and compensation in the following cases:

When sent on business trips;

When moving to work in another area;

In the performance of state or public duties;

When combining work with training;

In case of forced termination of work through no fault of the employee;

When providing annual paid leave;

In some cases, the termination of the employment contract;

Due to the delay due to the fault of the employer in issuing a work book when an employee is dismissed;

In other cases stipulated by the Labor Code of the Russian Federation and other federal laws.

Unlike the previous Labor Code of the Russian Federation new code indicates the provision of guarantees and compensations exclusively with the employment relationship of the employee with the employer. Therefore, if guarantees and compensation are to be provided within the framework of the concluded agreement, then the corresponding payments are made from the employer's funds. For the first time, the Labor Code establishes as a general rule that the bodies and organizations in the interests of which the employee performs state or public duties (jurors, donors and others) make payments to the employee in the manner and under the conditions provided for by the Labor Code, federal laws and other regulatory legal acts of the Russian Federation. Thus, the employer does not bear any costs in this case. Based on the analysis of each of the issues considered, it can be concluded that guarantees and compensation represent a kind of protection of the rights granted to employees in the field of social and labor relations.

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