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

The concept and types of social guarantees

When you are looking for a job and, reading one of the ads, you pay attention to the presence social package, an ignorant 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 camping tax);
• vacation pay;
• payment of sick leaves;
• travel allowance;
• reimbursement for transportation costs.

For a more detailed study of the list of various guarantees, it is necessary to refer to the labor code. It contains a lot of descriptions, duties and laws in this regard for certain enterprises and different areas of their activity.

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

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

All items of guarantees provided must comply with the following requirements:

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

Social guarantees can be divided into:

• regional;
• industry;
• nationwide.

The main task to which the general system aspires social guarantees, consists in the formation of a protective mechanism for 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 locality of the country. And the main sources of financing for this system can be the following formations:

• 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 mandatory 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:

1. Penalties and fines.
2. The money reimbursed by the policyholder in the event of claims made due to harm to the insured person.
3. Profit from the placement of temporarily released funds of compulsory social insurance.
4. Mandatory payment as a social support for personnel from persons who voluntarily joined the system of providing compulsory social security.
5. Other income in accordance 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 the laws on social insurance. These documents also indicate which categories are covered by a particular contribution.

The funds allocated to each employee must, in without fail be spent strictly for the intended 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 an employee and 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 during employment and how much the amount differs from the legally established amount.

Under these circumstances, the organization can reduce employee 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, subject to low wages, for example, as in government agencies, or offered in the interests of attracting and retaining a good workforce, as can be seen in large corporations.

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

1. Comparison of an employee with his company (satisfaction of his needs for involvement in the organization).
2. Coincidence of the goals of employees and the enterprise.
3. An increase in labor productivity and an increase in the desire to work.
4. Providing a favorable moral atmosphere.
5. Formation of a favorable social and psychological climate for employees.
6. Improving the image of the company in the eyes of workers.

As modern practice shows, when applying for a job, it is necessary to pay attention to social guarantees that the institution where you are going to work promises to provide. At the same time, it is necessary to select those forms of social protection that best meet the needs and interests.

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

CHAPTER 1. SOCIAL GUARANTEES OF EMPLOYEES IN LABOR LAW

1 The concept of guarantees in the sphere of work

2 Guarantees for employees when sent on business trips and to work in another locality

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

4 Guarantees for employees who combine work with training

5 Guarantees for employees upon dismissal

6 Guarantees for employees in case of temporary disability

7 Guarantees for elected employees

8 The concept of compensation in the world of work

9 Compensation in connection with the use of property by employees in the process labor activity

10 Compensation for business trips, sending employees for advanced training and to work in another area

11 Compensation for persons who combine work with study

12 Employee medical treatment compensation

13 Protecting the labor rights of workers

CHAPTER 2. SOCIAL GUARANTEES OF INDIVIDUALS IN CIVIL LAW

1 Rights of individuals

2 Guarantees at the conclusion of a civil law contract (on the example of a work contract)

2.2 Guarantees provided to the contractor

3 Guarantees for the protection of the result of intellectual activity

3.2 Functions of civil law for the protection and use of the results of intellectual activity and equated means of individualization

4 Civil rights guarantees

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

1 Legal nature of an employment contract and a civil law contract

2 The difference between an employment contract and a civil contract

3 Guarantees to employees when combining contracts of two types

CONCLUSION

BIBLIOGRAPHY

CHAPTER 1. SOCIAL GUARANTEES WORKERS IN LABOR LAW

1.1 The concept of job security

In part 1 of Art. 164 of the Labor Code of the Russian Federation, guarantees are defined as 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. Thus, as the purpose of applying the guarantees established by law, the exercise of the rights of employees is indicated. Consequently, guarantees perform a security function in relation to the rights established by employees.

The Labor Code of the Russian Federation divides guarantees and compensations into general (when hiring, transfers, remuneration, termination of an employment contract, etc.) and special.

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

Legal regulation of the conditions for providing guarantees and compensations is not a prerogative labor law 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, for wages, employees are provided with certain guarantees in the following cases: 1) being sent on business trips; 2) moving to work in another area; 3) performance of state or public duties; 4) combining work with education; 5) forced termination of work through no fault of the employee; 6) granting annual paid leave; 7) termination of the employment contract on separate grounds; 8) delays through the fault of the employer in issuing to 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, and an employment contract improves the position of the employee in comparison with the current legislation. In this connection, their establishment does not conflict with the law.

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

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

The existing guarantees for the exercise of these rights may also be of a property or non-property 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-dissemination of personal data. The listed guarantees can be recognized as non-property, since they do not have a certain value for the employee.

During the absence of an employee from 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 place of work of the employee, they are designed to ensure that the employee retains the previous working conditions in cases established by law, including workplace. In this connection, the main non-property guarantee is the provision to the employee of the former place of work after absence good 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 right of the employee to receive monetary remuneration for his work, that is, wages. In connection with which 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 average salary of an employee.

In connection with the foregoing, we can single out the following legally significant circumstances that characterize the legal concept of guarantees in the sphere of labor. Firstly, the establishment in the legislation, agreements, collective agreement, other local legal acts of the organization, labor contract. Secondly, the direct provision of labor rights provided for in the legislation. Thirdly, ensuring the implementation 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 working conditions, in particular the place of work. Property guarantees are always associated with the wages received by the employee.

The provision of non-property guarantees is associated with ensuring the rights that arise for employees in labor relations. By general rule such guarantees cease to have effect at 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. Thus, this guarantee is valid even after the termination of the employment relationship. However, non-compliance by the employer with this guarantee entails the possibility for the employee to receive the losses caused by the rules of civil law after the termination of the employment relationship with him. At the same time, the person with whom the termination labor Relations, may demand not only compensation for losses incurred in connection with the refusal of the employer to comply with non-property guarantees, but also compensation for moral damage.

Property guarantees also operate in parallel with labor relations. However, separate guarantees are provided even after dismissal from work. These include severance pay paid to laid-off persons. However, the presence of this guarantee does not affect the fate of the employment relationship that has been terminated.

In connection with the foregoing, it can be concluded that guarantees are associated with the provision of 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 compensation for moral damage due to non-compliance with the established rules of conduct legislation.

1.2 Guarantees for 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 perform an official assignment outside the place permanent job. At the same time, business trips of employees whose permanent work is carried out on the road, for example, train conductors, or has a traveling character, are not considered business trips, since the implementation of business trips in this case is an integral part labor function, which means it is permanent. This definition allows us to identify several legally significant circumstances, the proof of which allows us to recognize the trip of an employee as a business trip.

Firstly, such a circumstance is the presence of a permanent place of work for the employee. 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 implies 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 by an authorized representative of the employer of an order to send an employee to perform an official assignment for a certain 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 familiar with it. The absence of this order allows the employee to refuse a business trip. The order of the authorized representative of the employer must indicate what specific official assignment the employee should perform 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 labor function at the place of permanent work, since in this case the place of business trip becomes the permanent place of work. The direction on a business trip, as a rule, occurs in addition to the will of the employee.

However, by agreement with the employee, the period of a business trip can be extended, but at the same time, the employee must be provided with additional benefits compared to 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 absence of the will of the employee distinguishes a business trip from a temporary transfer to work with another employer or in 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 same place of work.

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

used in Art. 166 of the Labor Code of the Russian Federation, the wording allows us to conclude that a business trip can be recognized not only as the performance of an official assignment in another locality, that is, in another locality, but also in the same locality outside the place of permanent work. In this connection, a trip by order of the employer to perform 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 makes it possible to single out 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 job assignment outside the place of permanent work, that is, on a business trip. These guarantees include, first of all, the fulfillment by the employee of a job assignment, which is part of the employee's labor function. The assignment to an employee of additional work compared to the labor function requires obtaining his consent, as well as payment for additional work performed. The mode of work 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 by the employee with additional pay or the provision of other rest time, equal in duration to the overtime worked.

Secondly, it is possible to highlight the guarantees provided to an employee sent on business trips at the place of permanent work. These include the preservation of the place of work (position) for the employee, 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 current legislation. The fact that an employee is on a business trip cannot be recognized legal basis to change the conditions of his work.

An employee who is on a business trip is guaranteed the preservation of 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 is obliged to ensure that the employee is sent his average earnings. This transfer 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 an 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 in connection with his being on a business trip.

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

A person invited or transferred to another locality is guaranteed the preservation of earnings for the time spent 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 duty is to pay wages for all days spent on the road.

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

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

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 time he fulfills state or public duties in cases where, in accordance with federal law, these duties must be performed during working hours.

In accordance with part 2 of article 170 of the Labor Code of the Russian Federation, the state body or public association that involved the employee in the performance of state or public duties, pay compensation to the employee during the performance of these duties in the amount determined by law or by decision of the relevant public association. A state or public body that engages an employee to perform duties during working hours pay him compensation, and not guarantee 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. Cases of release of an employee from work to perform state duties are listed in federal laws. These include the performance by the 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 provided for by law, as well as agreements in force in the organization, a collective agreement. In this connection, at the end of the employee’s performance 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 cases specified by law and other regulatory legal acts, retain the average wage. In particular, the employer is obliged to keep the average salary for the employee when participating in a civil case as a witness.

1.4 Guarantees for employees who combine work with training

First, we can highlight the guarantees that the employer provides to employees entering or studying in educational institutions 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 leave without pay: 1) employees admitted to entrance examinations to 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 for passing intermediate certification - lasting 15 calendar days in the academic year, for the preparation and defense of graduation qualifying work and passing state exams - lasting four months, for passing final state exams - one month; 3) employees who are students of the preparatory departments of educational institutions of higher professional education, to pass final exams lasting 15 calendar days. For the listed employees, as a guarantee, they are released from work by providing them with unpaid leave of a specified duration, as well as maintaining their place of work (position) and previous working conditions. Granting of the listed holidays does not depend on the discretion of the employer. In this connection, the employee has the right to use the specified holidays with the notification of the representatives of the employer about the use of educational leave for the duration established by law.

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

Secondly, we can highlight 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 to educational institutions of secondary vocational education with state accreditation, lasting 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) exemption from work in the listed cases, which does not depend on the discretion of the employer; 2) maintaining the place of work (position) with the same working conditions; 3) maintaining 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 in part-time (evening) and part-time forms of education in state-accredited educational institutions of secondary vocational education are granted the right to reduce working week 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) preservation of the place of work (position) and previous working conditions for the employee; 3) saving for the employee during the period of release from work 50 percent of the average earnings, but not lower than the minimum wage.

Agreements, a collective agreement, an employment contract may provide additional guarantees compared to the legislation for persons receiving secondary vocational education. For example, the listed guarantees can be provided by the employer at his own expense and to employees 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 that 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 debts, are provided with additional holidays 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 pass exams, which does not depend on the discretion of the employer; 2) preservation of the work (position) and previous working conditions for the employee; 3) preservation of the average salary for the employee for the period of study leave.

Agreements, a collective agreement, an employment contract may provide for additional guarantees for persons enrolled in programs of initial vocational education, in particular, the provision of the above guarantees to employees receiving education in educational institutions of initial vocational education that do not have state accreditation.

Fourth, guarantees can be allocated 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 debts, are provided with additional holidays with the preservation of average earnings for passing final exams in the 9th grade lasting 9 calendar days, in the 11th (12) class duration of 22 calendar days.

In this case, the guarantees 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 work (position) and previous working conditions for employees for the period of vacation; 3) preservation of the average salary for the employee for the period of vacation.

Based on part 3 of Art. 176 of the Labor Code of the Russian Federation, employees studying in general educational institutions with state accreditation, during the academic year, have the right to reduce the working week by one working day or by 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 of reducing working hours chosen by him. Reduced time is paid at the rate of 50 percent of the employee's average wage, but not less than the minimum wage.

In this case, the guarantees are: 1) the release of the employee from work at his request for one working day a week during the academic 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 previous working conditions for the employee; 3) saving for the employee in case of reduction of working hours 50 percent of his average salary, but not lower than the established amount of the minimum wage.

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

In part 2 of Art. 177 of the Labor Code of the Russian Federation states that study holidays, by agreement between the employer and the employee, can be added to annual paid leave. Therefore, joining the study leave to the annual one is the right, and not the obligation of the employer.

In accordance with Part 3 of Art. 177 of the Labor Code of the Russian Federation, due to the requirements of the law, when an employee is trained 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 his own expense, to provide the employee with the guarantees necessary for studying in each of the educational institutions.

1.5 Guarantees for employees upon dismissal

When employees are dismissed for certain reasons, the legislation provides for the payment of severance pay to them. 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 an organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation) or a reduction in the number or staff of the organization’s employees (clause 2, part 1, 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, the said employees retain their average earnings for the third month from the date of dismissal by decision of the relevant body of the employment service, but at the expense of the employer, if the employee applied to this body of the employment service within two weeks from the date of dismissal, but was not employed by him. In this case, the guarantees are: 1) the retention of the average salary for the employee for the period established by law, which has elapsed after the dismissal; 2) maintaining the insurance period for the period for which the average wage was paid to the dismissed person; 3) saving for the employee priority right for employment with a reduction in the number or staff of employees of the organization during the entire period of retaining his earnings for the period of employment, since during this period the employer not only retains the obligation to maintain the average salary for the employee, but also to take measures to employ the dismissed person.

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

In this case, the following acts as guarantees: 1) saving for the employee within two weeks from the date of dismissal of the average monthly salary; 2) retention by the employee within two weeks from the date of dismissal of the insurance period in connection with the payment of the average monthly earnings for this period; 3) preservation of the right for the employee within two weeks from the date of dismissal to employment with the same employer in the presence of relevant vacancies and the removal 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 guarantees the preferential right to remain at work, primarily to employees with higher labor productivity and qualifications. With equal labor productivity and qualifications, the following criteria are applied to resolve the issue of the presence or absence of a preferential right to remain 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 in the family of the dismissed employee of other employees with independent earnings; 3) getting a labor injury or an occupational disease in this organization; 4) the presence of a disability in connection with participation in the Great Patriotic War or in combat operations to defend the Fatherland; 5) advanced training in the direction of the employer on the job. The collective agreement may also indicate other categories of workers who enjoy the priority right to remain at work with equal labor productivity and qualifications. At the same time, the prevailing right to leave at work may 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 position) 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 against receipt at least two months before the 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 allowance in the amount of at least three monthly earnings of the employee. This payment must also be made at the time of dismissal of the employee. Violation of the terms and in this case is the reason for the payment of interest to the dismissed person, provided for in Art. 236 of the Labor Code of the Russian Federation.

In relation to these employees, the guarantees are: 1) maintaining the average earnings for three months after dismissal; 2) inclusion of the periods for which the average salary is paid in the insurance period; 3) maintaining the opportunity to continue labor relations by concluding an employment contract for existing vacancies that correspond to the qualifications of the dismissed employee. The named employees cannot be unreasonably denied the conclusion of an employment contract for the vacancies available in the organization, the work for which corresponds to their professional skills.

1.6 Guarantees for employees in case of temporary disability

Based on Art. 183 of the Labor Code of the Russian Federation during the period of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal law. The 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 time of work 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 are less than six months , temporary disability benefits are paid in the amount of the minimum wage. Employees who have overcome the six-month insurance barrier and have an insurance record of six months to five years are paid benefits in the amount of 60 percent of their average wages. With an 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 service, the allowance is paid in the amount of 100 percent of the employee's average earnings.

In connection with the foregoing, the guarantees for temporary incapacity for work of an employee are: 1) the preservation of the place of work (position) for the employee for the entire period of incapacity for work. The employer has the right to accept another employee in his place for the period of 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 a return to the previous workplace. In this connection, the employee accepted for this workplace 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 previous working conditions for the employee, 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 wage increases. Temporary disability benefit should be paid in an increased amount from the moment of salary increase in the organization, if it is not paid in the amount of the minimum wage; 3) keeping an employee's average earnings or part of it, depending on his insurance period, or paying him the minimum wage for an insurance period in the billing period of 12 months of less than six months. In accordance with Art. 184 of the Labor Code of the Russian Federation in the event of temporary disability due to an accident at work or an occupational disease, temporary disability benefits are paid to the 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 to employees released from work as a result of their election to elected positions in state bodies, that is, in elected bodies of federal and regional authorities, as well as in bodies local government, guarantees provided for by special laws regulating the status and procedure for the activities of these bodies are provided. Among the general guarantees that are provided to these persons are: 1) providing the opportunity to return to their previous job (position), which they performed before exercising their elective powers; 2) providing an opportunity to start equivalent work in the absence of a previous job (position); 3) preservation of the previous working conditions, which can be changed after the return of the employee to the 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, employees elected to trade union bodies and commissions on labor disputes are exempted from work to participate in its work, while retaining their average earnings. In this case, the guarantees are: 1) the 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 previous working conditions for the members of the CCC for the period of fulfillment of the duties of a member of the CCC; 3) preservation of the average earnings for the members of the CCC during the period of 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 released from work in an organization in connection with his election to an elective position in the 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 job (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 study or retraining - for a period of up to one year.

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

In this case, the following acts as guarantees: 1) the preservation of the former job (position) for the elected employee with the same working conditions, the presence of this position (job) 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 elective powers of the employee who previously performed this labor function; 2) provision of another equivalent job (position) in the absence of the previous job (position); 3) maintaining average earnings for the period of employment in the absence of the opportunity to provide work to an elected employee for a period of up to six months, and in case of training - for a period of up to one year; 4) inclusion of periods of performance of elective powers in the general or special length of service of the employee; 5) the inclusion of paid periods of employment in the insurance period of the employee, subject to the payment of the relevant insurance premiums.

1.8 The concept of compensation in the world of work

In 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 the costs associated with the performance of 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.

Firstly, compensations are compensatory in nature, they are designed to reimburse the employee for certain costs. These costs can be compensated to the employee both for the past time and in the case of future expenses, for example, to pay for travel to and from a business trip. Whereas the guarantees that are provided to employees do not have a compensatory nature. Guarantees are designed to ensure the implementation of labor rights of employees.

Compensations are aimed at reimbursement of expenses incurred by employees in the performance of established duties, as well as in the exercise of certain rights, in particular the right to training.

Secondly, the application of the concept of "compensation" involves proving the existence of a direct connection between the incurred or expected costs of the employee and the performance of labor or other duties stipulated by federal law during the time allotted for performance. job duties.

That is, the connection between the incurred or future expenses of the employee and the performance of specific labor duties or other duties stipulated by federal law must be proven. The proof of these circumstances allows the employee to demand compensation for the costs incurred by him.

Thirdly, the employee's incurred or future expenses 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 expenses, thus recognizing them as compensable. In this case, the position of the employee in comparison with the current legislation improves, which is fully consistent with the legal principles of regulation in the field of labor. Expenses incurred by employees may be recognized as compensable 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. The employee is not obliged to spend personal funds in the performance of labor duties, state and public duties provided for by federal law. In this connection, the funds necessary for the performance of these duties, in cases provided for by law, must be provided to him by the employer. The refusal of the employer to pay the employee the amounts necessary to fulfill the listed obligations allows the employee to refuse to fulfill them, for example, from going on a business trip in the absence of the necessary funds for this, which the employer is obliged to provide. The expenses incurred by the employee, recognized as subject to compensation, must be reimbursed to him at the first payment of wages.

Failure to meet the deadlines for 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 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 law when compensating for incurred or future expenses. However, the application of local rules in the payment of compensation has its own characteristics. Expenses that are reimbursed to an employee on the basis of 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 lies in the fact that it sets the maximum allowable parameters for reimbursement of expenses incurred by an employee. Exceeding the specified parameters at the expense of the employer's own funds is considered as receiving additional income by the employee. 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 is that these payments cannot be attributed to the income of the employee, since they are used by him not to satisfy personal needs, but for the purpose of properly fulfilling the duties assigned to him. Therefore, the recognition of these payments as the employee's income in excess of the parameters established by law conflicts with the concept of compensation payments under consideration.

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

This definition is applicable when the circumstances under consideration are proved. It does not imply the possibility of limiting the amount of compensation due to an employee at the level of by-laws by attributing 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.

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

In accordance with Art. 188 of the Labor Code of the Russian Federation, when an employee, with the consent or knowledge of the employer and in his interests, uses the employee’s personal property, he is paid compensation for the use, wear (depreciation) of the tool, personal transport, equipment and other technical means and materials belonging to the employee, as well as reimbursement of expenses related to 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, in order to recognize compensation payments made to an employee, the general concept of compensation payments is primarily applicable. In addition to the general circumstances included in this legal concept, Art. 188 of the Labor Code of the Russian Federation allows you to highlight special legally significant circumstances, the proof of which allows you to demand compensation for the use of personal property of employees in the course of work.

Firstly, such a circumstance is that the property used by the employee in labor activity belongs to the employee, and not to the employer. This property does not have to be owned by the employee. It is important that the employee use this property in the process of labor activity legally.

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, rather than the employee, becomes the beneficiary from the use of property during working hours. The employee performs a labor function in the interests of the employer. Therefore, the use of property to perform 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, the circumstance to be verified 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 process of labor activity is a right, not an obligation of the employee. In turn, the employer may conclude an agreement with the employee on the use of his property in the process of labor activity. This agreement is concluded in writing, after its conclusion, the employee has an obligation to use the property in the performance of labor duties. Corresponding to this obligation is the right of the employer to require the employee to perform labor 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 sufficient to notify the representative of the employer about the use of the property by the employee in the performance of the labor function and the employer accepts the results of the activity 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 detract from the rights guaranteed by law. The current legislation guarantees every citizen, including those who have concluded an employment contract, full compensation for losses incurred related to the use of property in the performance of labor duties. Therefore, an agreement between an employer and an employee cannot contain a condition that worsens the position of the employee in comparison with the law. In this connection, the amount of expenses subject to compensation cannot be less than the actual costs of the employee in the course of labor activity, as well as the actual depreciation of his property used in work. Therefore, the amount of compensation payments specified in a written agreement between the employer and the employee is not an obstacle to reimburse 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 expenses of organizations for the payment of compensation for the use of personal cars for business trips, within which, when determining the tax base for corporate income tax, such expenses are included in other expenses related to production and implementation” the following norms of compensation payments are established: 1) when using cars with an engine capacity of up to 2000 cubic meters. cm inclusive - 1200 rubles per month; 2) when using cars with an engine capacity of more than 2000 kb. cm - 1500 rubles per month. Exceeding the specified norms entails the inclusion of amounts received as compensation by the employee in excess of the named norms for compensation of expenses in the employee's income subject to taxation. In this connection, the right of the employee to receive full compensation for expenses incurred in the performance of labor duties is violated.

Although, based on the data 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 expenses of an employee in the performance of labor duties in an amount exceeding the listed standards relate 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 a basis for distinguishing between compensation payments and employee income. In connection with the foregoing, it is possible to conclude that the specified 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.

1.10 Compensation for business trips, sending employees for advanced training and to work in another area

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 the business trip and back; 2) the cost of renting a dwelling; 3) additional expenses 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 expenses of the employee as subject to compensation due to the fact that they are caused by the need to fulfill labor duties.

In part 2 of Art. 168 of the Labor Code of the Russian Federation states that the procedure and amount of reimbursement of expenses associated with 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 position of employees in comparison with the law.

Decree of the Government of the Russian Federation No. 729 “On the amount of reimbursement of expenses associated with business trips in the territory Russian Federation, employees of organizations financed from the federal budget” dated October 2, 2002 established standards for reimbursement of travel expenses to the place of a business trip and back.

In Art. 168 of the Labor Code of the Russian Federation also says nothing about the possibility of limiting the 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 for 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 an employer sends an employee for advanced training with a break from work, he retains his place of work (position) and the average salary. Employees sent to improve their skills with a break from work in another area 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 expenses incurred during advanced training in full, the restriction 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, the specified employees are provided with: 1) preservation of the place of work (position) with the same working conditions; 2) maintaining average earnings during advanced training; 3) providing an opportunity to use the skills acquired during advanced training in the course of labor activity.

In accordance with Art. 169 of the Labor Code of the Russian Federation when moving an employee to prior arrangement with the employer to work in another locality, the employer is obliged to reimburse the employee: 1) the costs of moving the employee, members of his family 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 reimbursement by organizations financed from the federal budget, expenses to employees in connection with their relocation to work in another locality" dated April 2, 2003 established that the costs of relocating an employee and members of his family (including insurance contribution for compulsory personal insurance of passengers on transport, payment for services for issuing travel documents, expenses for the use of 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 expenses 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 these purposes. In this connection, the employer is obliged to give the employee the funds necessary for a business trip, advanced training in another area, moving to work in another area. The employee's lack of sufficient funds allows him to refuse to fulfill his 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 provision of documents confirming that they were incurred by the employee. Failure by the employer to fulfill this obligation allows the employee to demand the application of unpaid amounts 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 the payment of amounts due to the employee, including compensation established by law and local regulatory legal acts of the organization.

1.11 Compensation for persons who combine work with study

The current legislation does not oblige the employer to pay the employee who combines work with training the expenses 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 for employees studying by correspondence in educational institutions of higher professional education with state accreditation, once in the academic year, travel to the location of the educational institution and back. The minimum standard 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 compensation to the employee in a higher amount than the payment for travel on business trips and back for employees of organizations financed 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 with 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, the amount of payment for travel on business trips and back, which are established for organizations financed from the federal budget, is also used as the minimum established by the state. However, the minimum in this situation 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 at a secondary specialized educational institution, for example, to pay the cost of travel to and from the place of study in full. In this case, the employer recognizes the need for the employee to improve his qualifications. In this connection, the expenses of the employee on travel to the place of training and back are related to labor activity.

Therefore, they should not relate to the income of the employee. 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 obligations of the employer to compensate employees who combine work with education are limited to paying the cost of travel to and from the place of training, and when studying in secondary vocational educational institutions - partial payment of the cost of travel 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 and from the place of study 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, which provides for the payment of interest for each day of delay in the amounts due to the employee.

In addition to obligations, the employer has the right to pay the employee the costs associated with training. The employer may, at his own expense, compensate the employee for the expenses that arise when studying at higher and secondary vocational educational institutions. For example, an employer may pay the cost of training an employee at specified educational institutions. Payment by the employer for the employee's studies allows us to conclude that he has improved his qualifications at the expense of the employer. In this connection, employees 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 for advanced training. In particular, an employee can receive compensation for the cost of travel to and from the place of study to pass an intermediate certification, reimbursement of housing expenses, daily allowances in the amounts established for business trips of employees of organizations financed from the federal budget. These payments are directly related to the labor activity of an employee who undergoes 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's funds should be recognized as compensation payments, and not the employee's income. These payments correspond to the definition of compensation, which is available 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 tuition fees, compensation of other expenses for employees who improve their qualifications at the expense of the employer's funds may be placed in the local regulatory legal acts of the organization, in an agreement between the authorized representative of the employer and the employee. This condition improves the position of workers 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 mandatory for execution.

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

And, on the contrary, the employee has the right to receive payments established in local regulatory legal acts, labor contracts, corresponding to this obligation. Thus, the legislation provides a non-exhaustive list of employer's obligations to compensate employees for expenses related to training. This list can be expanded at the expense of the employer.

1.12 Employee medical treatment compensation

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

In accordance with paragraphs. 3 p. 1 art. 8 of Federal Law No. 125-FZ "On Compulsory Social Insurance against Accidents at Work and occupational diseases» dated July 2, 1998, the employee is entitled to compensation for the following additional expenses: 1) additional medical care (in excess of that provided for by compulsory medical insurance), including additional food and the purchase of medicines; 2) outside (special medical and domestic) care for the insured, including those carried out by members of his family; 3) for sanatorium-and-spa treatment, including vacation pay (in excess of the annual paid vacation, established by law) for the entire period of treatment and travel to the place of treatment and back, to compensate for the cost of travel of the insured, and, if necessary, the cost of travel of the person accompanying him to the place of treatment and back, their accommodation and food; 4) for prosthetics, as well as for the provision of devices necessary for the insured to work and at home; 5) to provide special vehicles, their current and major repairs, payment of expenses for fuels and lubricants; 6) on professional education(retraining). The listed additional types of provision for employees are made at the expense of the Social Insurance Fund of the Russian Federation, in which the employee must be insured by the employer against industrial accidents and occupational diseases. To pay for the cost of travel to and from the place of treatment, per diems for the time spent on the road, the standards established to compensate the expenses of employees of organizations financed from the federal budget during business trips are used.

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

The foregoing allows these employer payments to be included in the number of compensation 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. The 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 the employee's ability to work are directly related to labor activity.

1.13 Protecting the labor rights of workers

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. In part 1 of Art. 1 of the Labor Code of the Russian Federation provides that the purpose of labor legislation is to establish state guarantees of labor rights and interests of employees and employers.

Among the main principles legal regulation labor art. 2 of the Labor Code of the Russian Federation calls ensuring the rights of everyone to the protection by the state of his labor rights and freedoms. This principle is specified in chapters 56 - 58 of section XIII of the Labor Code of the Russian Federation, dedicated to the protection of labor rights of workers.

IN modern Russia among employers, the number of private property organizations is increasing, individual entrepreneurs and other individuals who use the labor of employees, 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 its observance is growing.

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

The main ways to protect 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 of Part 2 of Art. 352 of the Labor Code of the Russian Federation in the first place is the self-defense of labor rights by employees. This does not mean a weakening of the state protection of workers from violation of their rights, but is aimed at the need for special attention to the implementation by workers of the possibility of self-defense by legal means.

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 establishes 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 of labor rights by employees (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 compliance with 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 contribute to the protection of the labor rights of employees through 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).

The activities of the Public Chamber of the Russian Federation, a newly created body, are aimed at ensuring the protection of the rights and freedoms of citizens and public organizations in the formation and implementation of state policy, as well as exercising public control over the activities of federal state authorities of the constituent entities of the Russian Federation and local governments.

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

As for self-defense by employees of their rights, the Labor Code of the Russian Federation provides for their forms and the obligation of the employer not to prevent employees from exercising self-defense.

To the forms of self-defense by employees of their labor rights Art. 379 of the Labor Code of the Russian Federation includes:

)a written refusal of the employee to perform work not provided for by the employment contract;

)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.

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

For example, a delay in the payment of wages for more than 15 days can 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 payment of wages not in full amount refer to forced labor, he has the right not to go to work until the delayed amount is paid to him.

The ways of protection by 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 by all means 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 those methods that are indicated in the Labor Code of the Russian Federation.

Judicial protection of the labor rights of employees is carried out in the resolution of individual labor disputes by the courts.

A special place among the ways to protect the labor rights of employees is occupied by state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, since in its implementation the power of state (legal) influence on employers, their representatives is used, forcing them to mandatory compliance with the instructions of the competent authorities to eliminate the detected violations, and, in addition, measures of state coercion - bringing those guilty of violations of labor legislation to disciplinary, administrative or criminal liability in the appropriate case

State supervision and control - the activities of authorized state bodies aimed at verifying the compliance with labor legislation of employers' actions in labor management (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 compliance with labor legislation, other regulatory legal acts containing labor law norms, interact with trade unions, their inspections authorized to conduct public control in this area.

The implementation of the administrative reform led to significant changes in the structure and powers of federal bodies executive power. 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 existence of the Federal Service for Labor and Employment as part of 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” provides that this service is a federal executive body that exercises the functions of supervision and control over compliance with labor laws and other regulatory legal acts containing labor standards. rights and other functions. According to the Decree of the Government of the Russian Federation No. 324 dated June 30, 2004, Regulations on the Federal Labor and Employment Service, it is primarily assigned the functions of supervision and control in the sphere of labor, employment and alternative civil service. These functions are performed by the Federal Labor Inspectorate, which is part of this Federal Service. The Federal Service for Labor Employment itself 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 sphere of labor, for example, the Federal Service for technological supervision, Federal Service for Nuclear Supervision.

This was followed by the Decree of the President of the Russian Federation of May 20, 2004 No. 650 “Issues of the structure of federal executive bodies”, by which the Federal Service for Technological Supervision and the Federal Service for Nuclear Supervision were transformed into the Federal Service for Environmental, Industrial and Nuclear Supervision, which is managed by the Government RF.

Changes in the structure and powers of federal executive bodies have not yet received full legal formalization. Therefore, when covering issues of state supervision and control, previously adopted normative legal acts are also used, which have retained their 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 norms are:) the federal labor inspectorate;

) bodies of specialized federal supervision;

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

) 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 in the territory of the Russian Federation.

The relevant federal executive authorities, performing the functions of supervision and control in the established field 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 the bodies of the federal labor inspectorate.

Federal executive authorities, executive authorities of constituent entities of the Russian Federation, local self-government bodies exercise internal control over compliance with labor legislation and other regulatory legal acts containing labor law norms in organizations subordinate to them in the manner and on conditions determined by federal laws and laws of 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 the functions of control and supervision in the established field of activity, except in 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 precise and uniform implementation of labor legislation and other normative legal acts containing labor law norms.

State bodies of supervision and control interact in the course of their activities among themselves, as well as with trade unions, labor inspectors of trade unions, associations of employers, 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 main principles (principles) in the acquisition and exercise of subjective civil rights by citizens (individuals).

It must be remembered that the participants in civil legal 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 existence 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 private business as the activity of a citizen or legal entity (as a private person), based on private interest in the field of application of private, and not public law. This can be both private business activity, and the private life of a citizen, and in general everything that is outside the state, political and other public activities pursuing public interests. The private business of a citizen or a legal entity must be protected by law from arbitrary interference in it by any person or state. Of course, the degree of secrecy is expected to vary depending on the nature of the private matter.

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

A direct continuation of the principle outlined 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 establishes 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 will" and "in one's own interest" determine the general direction in the operation of this principle at the stage of application of civil legislation. Of course, they cannot be interpreted literally, since there are cases when civil rights are acquired and exercised “not by one’s own will” (for example, by the actions of guardians in relation to minors) and “not in one’s own interest”, but in the interests of other persons, society and the state.

The Civil Code of the Russian Federation (Article 2) distinguishes three types of relations regulated by civil law: property relations, related personal non-property relations 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 sphere of the economy (paragraph 1, clause 1, article 2). Their main object is property that acts or can act as a commodity in commodity-money circulation.

Personal non-property relations related to property relations (paragraph 1 of clause 1 of Article 2) most often arise regarding 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 evaluation. 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 property relations created in parallel.

A separate variety is made up of relations for the protection of inalienable human rights and freedoms and other intangible benefits (clause 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, financial compensation moral damage caused to their owners. The Civil Code stands on 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.

2.1 The concept of a civil law contract

The contract is one of the most important institutions of the law of obligations, because. represents legal fact underlying legal obligations. 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 contract is the most important means of legal regulation of property and relevant non-property relations and has the following main features.

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

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 of each other, regardless of whether they are citizens, legal entities, national-state or administrative-territorial entities represented by their authorities and management. The contract arises as a result of an agreement between its participants, requires reaching agreement on entering into an obligation and determining its terms, and coercion to conclude a contract is possible only in cases expressly provided for by law.

The exercise of the rights provided for 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 using measures to force the debtor to fulfill the stipulated terms of the contract.

At the conclusion contractual relations of great legal importance is the determination of the correlation between the norms of the law and the will of the parties when agreeing on rights and obligations in the contract. Of decisive importance for the development of contractual conditions is the discretion of the parties and their agreement on the composition and procedure for performing actions, taking into account their interests and capabilities.

The contract 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.

Citizens and legal entities are free to conclude a contract, and the decision on the conclusion of contractual relations depends only on the will of potential counterparties. Coercion 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.

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

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 may enter into a mixed contract that contains elements of different contracts, in which case they will be governed by the rules on the relevant contracts, the terms of which are contained in the mixed contract, unless the parties agree on which law applies to their contract.

The parties independently determine the terms of the contract, except when the content of the relevant terms of the contract is expressly prescribed by law or other legal acts. This provision allows the participants of civil turnover to exercise their property independence and economic independence and compete on an equal footing with other participants in market relations. Freedom in concluding contracts and determining their content must be inextricably combined with the obligation to fulfill the accepted conditions, and their non-fulfillment or improper fulfillment is a civil offense. Therefore, ensuring the accurate and timely fulfillment of contractual obligations is a task of national importance, because the reliability of contractual ties and the increase in their stability is the main factor in the development of market relations.

2.2.2 Guarantees provided to the contractor

The Civil Code obliges the contractor (employee) to fulfill the contract, but at the same time guarantees him the fulfillment of the contract in set time, payment for the completed contract, 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 paragraph 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 “reasonable term” rule applies), does not apply to work contracts. For a contract, the term is an essential condition of the contract, and if the parties fail to reach an agreement on this condition, the contract is recognized as not concluded.

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

The special significance of the deadline lies in the fact that it is with its violation that the Civil Code (clause 2 of article 405) connects the consequences provided for in the event of delay (meaning responsibility for the impossibility of performance that accidentally occurred during the delay, the emergence of the creditor's right to refuse 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 paragraph 3 of Art. 424 of the Code, the price, unlike the term, is not essential condition contract agreements. If it is not 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, 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: the compensation of the contractor's costs and the remuneration due to him. The specified norm matters mainly in the event of a pre-contractual dispute brought to the court between the parties. With more complex types of contract, the price is usually determined by the estimate, which allows you 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 compared to how they are defined in the estimate? Regardless of whether the savings occurred due to the fact that the contractor used more advanced methods of performing work, or for reasons that are generally beyond the control of the customer (for example, the materials necessary for the work or third-party services have fallen in price), it is recognized that the customer should pay for the work in in the amount in which it was stipulated by the price specified in the contract.

The Civil Code emphasizes in Art. 705 two kinds of risks. The first is related to the accidental loss 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 for the completion of the building construction equipment, fabrics for sewing dresses, etc.). The risk in question is borne by the person who provided the relevant property. This expresses the principle known since the time of Roman law: the risk of an accident is borne by the owner. In the Civil Code itself (Article 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 risk allocation option relates to accidental loss or accidental damage to the result of the work performed before it is accepted.

The Code has established certain limits for a party to bear the relevant risks. Firstly, the owner, and hence the contractor, are exempted from the risk of destruction of materials and, accordingly, the destruction of the result of labor, if these 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 overdue party. This rule is mandatory. Therefore, it will be valid even when the parties in the contract establish otherwise.

The issue of advance payment and deposit is highlighted. The obligation of the customer to pay the contractor an advance (deposit) must be provided for in the law or in the contract. The transfer of an advance (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, without 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 remuneration 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 perform the contract at any time without explaining the reasons for the refusal. Such a reason may be the refusal of the bank to issue a loan to the customer, which he counted on when concluding a contract. Protecting the interests of the contractor in such cases, the Code provides for the need for the customer to pay his counterparty a part of the established amount for the share of the work that he has completed before receiving notice from the customer about the termination of the contract. The contractor is also entitled to demand compensation for his losses, which, however, should not exceed the total cost of the entire result of the work under the contract.

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

2.3 Guarantees for the protection of the result of intellectual activity

3.1 The concept of intellectual activity and its result

Along with property rights as one of the types of absolute rights that mediate the statics of property relations, importance has another type of absolute rights - the exclusive right to the ideal results of intellectual activity and equivalent 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 in which they are created.

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

The result of intellectual activity is its product expressed in an objective form, which, depending on its nature, is called a work of science, literature, art, an invention or an 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 a big role in shaping its spiritual world and aesthetic level.

In market conditions, the timely and widespread use of the results of mental labor contributes to an increase in the efficiency of entrepreneurial activity, the quality and competitiveness of goods, works and services. Exclusive rights, first of all, to inventions, utility models, industrial designs, trademarks and other types of product designations are an important part of the intangible assets of enterprises. Along with other values, these rights can be invested in entrepreneurial and other activities. Property rights to the results of intellectual activity can also serve as a contribution to property economic partnership or society (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 depend in any way on national-territorial characteristics, “legal regulation of intellectual property” is within the jurisdiction of the Russian Federation (paragraph “o” of Article 71).

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

The most important role in creating conditions for the protection and use of the achievements of the human mind is played by civil law. And although it also cannot directly regulate the processes of mental activity, it is able to have a positive organizing effect on relations 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:

) establishing the mode of their use;

) material and moral incentives and

Depending on the nature of the result, 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 using the result of intellectual work, i.e. determine who is entitled and who is not entitled to apply the result. Within the framework of exclusive rights, authors of works of science, literature, art, inventors and designers, their employers and other persons are also granted personal non-property and property rights, methods and forms of protection of these rights are established.

Copyright, related, patent and similar rights, being exclusive absolute rights, provide their owners with a legal monopoly to perform various actions (to use the results of their creativity and dispose of them) while simultaneously 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 transfer of rights to use its results for a fee.

2.4 Civil rights guarantees

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 for an authorized person to apply law enforcement measures that correspond to the nature of the subjective right 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 technique. The term "protection" provides for the formation of legal, physical and material measures aimed at ensuring the exercise by all subjects of 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 protection is determined by the measure of the possible behavior of the authorized and obligated person and is associated with law enforcement measures. The right to protection is aimed at achieving provisions that contribute to the implementation of subjective civil rights at various stages of the actions of an authorized and obligated 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 circulation is carried out within the limits specified by law or by the will of their participants.

To protect the subjective civil right, 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 specified in the Civil Code of the Russian Federation can be divided into three groups depending on the mechanism of influence on the offender of subjective civil rights.

Operational measures 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 the customer has fully reimbursed the costs and losses to the creditor (Article 359 of the Civil Code of the Russian Federation), performance by an authorized person of work not performed by the debtor, at his expense (Article 475 of the Civil Code of the Russian Federation).

Appeal with the requirement to protect 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 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 law and order. Prosecutorial bodies take measures to eliminate violations of the law, bring the perpetrators to justice and exercise state supervision over the implementation of laws throughout Russia.

Civil and civil procedural law provide for the protection of violated and contested civil rights in the judiciary, taking into account the jurisdiction of cases. Protection of the rights and freedoms of subjects of civil circulation is carried out by the judiciary by applying to the court general jurisdiction, arbitration or arbitration court or to the Constitutional Court of the Russian Federation.

Self-defense of civil rights is the commission by an authorized person of actual actions permitted by law, 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 where the authorized person has limited opportunities to apply to law enforcement, state or public bodies.

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

recognition of the right;

restoration of the situation that existed before the violation of the right, and 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;

awarding to fulfillment of duties in kind;

indemnification;

recovery of a penalty;

compensation for moral damage;

termination or change of legal relationship;

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

in other ways prescribed by law.

Russian legislation allows the use of administrative measures and criminal prosecution to protect civil rights. This provision is based on constitutional norms that establish and protect the rights and freedoms of man and citizen. The Constitution of the Russian Federation, as a law of direct action, allows for a civil offense to apply measures to protect subjective civil rights using the legal mechanisms laid down 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. CORRELATION OF SOCIAL GUARANTEES IN LABOR AND CIVIL LAW

3.1 Legal nature of the employment contract and civil law 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 specifics of the product itself and the form of its purchase and sale predetermine the relationship between the seller and the buyer, their duration, and the legal registration of the purchased labor services.

lack of strict state regulation of labor relations;

elimination of obsolete prohibitions in labor activity;

flexibility of labor 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 on their own the issues of 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 the reduction of 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 workforce 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 production and marketing of products (performance of work), but also by the presence of archaic, inconsistent with the spirit of the times, methods of legal regulation of the organization of labor based on regulations that preserve the ideas and principles of administrative command methods of labor process management.

Formulated by L.S. Talem 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 non-independent worker, subject to the master's power and internal order enterprises, formed a model of legal connection for many years: "employee - employer". At the same time, the scientist considered the provision of labor force as a characteristic feature of an employment contract. industrial enterprise(household) for a long period, the subordination of the employee to the internal order and the master's authority, as well as the promise (duty) of the employer to pay remuneration (wage).

The criteria for delimiting the labor of an industrial worker from the labor of an entrepreneurial, independent, contract, assignment, commission, etc. regulated by a civil law contract, were supplemented and specified by many Trudovik scientists at the later stages of the development of labor law. Thus, to distinguish an employment contract from civil law contracts, additional criteria were proposed, such as: performance of work by personal labor; consent of a citizen to work as a worker or employee; inclusion of an employee in the staff of the enterprise; payment of wages (rather than remuneration) in accordance with the quantity and quality of labor; performance by the employee of a 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: objective (performance of work in accordance with the labor function); organizational (subordination of the employee to the internal labor schedule of the enterprise) and property (the nature of wages). Later, however, the author believed that “the time has come to refer to the sphere of labor legislation all labor agreements providing for the performance of work, regardless of their term, including civil law contracts and assignments.”

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 “Paid Services”, a work contract, often involved in civil law for the legal registration of relations for the performance of various types of work, has given way to a special obligation - a contract paid provision services. The fundamental difference is that the contract for the provision of services for a fee 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 indicating the increasing importance of civil law in the regulation of labor relations is not so much the obvious blurring of the lines between an employment contract and a civil law contract for the provision of services, but the consistent position of the legislator, which aims to combine the efforts of the two contracts in legal support a single subject - human labor activity.

V.N. Skobelkin came to the conclusion that there are no sufficiently defined and clear criteria to confidently separate an employment contract from a civil law contract, since both contracts regulate homogeneous relations related to 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 field of social organization of labor (contracts, leases, etc.).

The close interaction of labor and civil law contracts 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 international law and, above all, ILO Convention No. 143 and ILO Recommendation No. 151 on migrant workers, promotes the idea of ​​free choice by a foreigner of a work 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 the legal status of 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 taken by the parties when choosing a particular type of contractual obligation is consistently observed. This novelty in the regulation of the labor of foreign citizens in Russia expands the range of their purely labor interests (along with entrepreneurial and other interests), going beyond the traditional labor relations formalized exclusively by an employment contract (Article 13 of the Law). The law does not establish any opposition of one contract to another, any preference for a specific method of legal regulation of labor activity.

3.2 The difference between an employment contract and a civil contract

Such differences can be made according to the following three criteria: 1) on the subject of the contract; 2) according to the rules of internal work schedule; 3) according to the one 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, the employee in the process of performing work 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 the employer, the employee is obliged to obey the rules of the internal labor schedule (clearly regulated work schedule, rest time, etc.) and be responsible for their violation, which is not the case when concluding a civil law contract. If you write in the contract that you are hiring a programmer with such and such a salary for a period until the full computerization of the company, then, no matter how you call it, in fact it will be an employment contract. When you conclude an agreement on the provision of such and such services for a fee, 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 law contract.

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

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

One of the conditions of the employment contract may be a test to verify the compliance of the employee with the work assigned 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 half a month. 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 act of acceptance of 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 the UST in terms of the amount of tax credited to the Social Insurance Fund does not include remuneration paid individuals under civil law contracts, copyright and license agreements. That is, when concluding a civil law contract with a person, the employer will have to pay contributions to Pension Fund and the Compulsory Medical 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, temporary disability of the employee is paid, and there is no such concept in the civil law contract.

But if the person you took on temporary work contract, is not listed anywhere else, labor inspectors are likely to insist that his 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 sick leave.

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

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

The combination of two types of contracts in the regulation of labor activity can also be traced on the example of the organization of labor of workers "without employment position". Thus, Decree of the Government of the Russian Federation of April 4, 2003 No. 197 “On the peculiarities 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 work and does not require the conclusion (execution) of an employment contract." Consequently, these and similar works can be regulated by civil law contracts.

Data regulations seem to me quite controversial, tk. part-time workers are entitled to the same set of social guarantees as the main workers, with the exception of benefits that are provided to persons who combine work with education and work in the regions of 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. We should also not forget 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), while civil legislation, in principle, providing more opportunities to protect their rights, obliges the citizen to protect 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 specific. They are not remuneration for labor for the reason that they are not commensurate with the quantity and quality of labor actually expended by the employee in the period for which they were paid. Their intended purpose is to prevent possible losses in earnings due to the fact that the employee is distracted from the performance of labor duties.

The concept of "compensation", given in Art. 164, coincides in meaning with the concept of “compensation payments”, which has long been established in the science of labor law. In the educational and scientific literature on labor law, compensation payments are characterized as payments made in the 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 compensations 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 education;

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

when granting annual paid leave;

in some cases, termination of the employment contract;

due to a delay due to the fault of the employer in issuing a work book upon dismissal of an employee;

in other cases provided for by the Labor Code of the Russian Federation and other federal laws.

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

BIBLIOGRAPHY

1.Constitution of the Russian Federation. - M., 2008.

.Civil Code of the Russian Federation. Part 1: dated November 30, 1994 No. 51-FZ (as amended on June 29, 2009).

.Labor Code of the Russian Federation: Federal Law of December 30, 2001 N 197-FZ (as amended on December 29, 2010, with amendments and additions that entered into force on January 7, 2011) // Collection of Legislation of the Russian Federation. - 2002. - N 1. - Part 1. - Art. 3.

.Federal Law No. 8-FZ of January 8, 1998 “On the Fundamentals of Municipal Service in the Russian Federation”, as amended. dated July 25, 2002 No. 112-FZ // SZ RF. - 1998. - No. 2. Art. 224; 2002. - No. 16. - Art. 1499.

.Federal Law No. 58-FZ of November 11, 2003 “On the System of the Public Service of the Russian Federation”, as amended. dated 11.11.03 No. 141-FZ // SZ RF. - 2003. - No. 22.- Art. 2063; No. 46 (2.1). - Art. 4437.

.Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended on December 28, 2006 No. 63) // Bulletin of the Supreme Court of the Russian Federation. - 2006. - No. 6.

.Decrees of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // BVS RF. - 2004. - No. 4.

.Decree of the Government of the Russian Federation of June 30, 2004 No. 324 “On Approval of the Regulations on the Federal Service for Labor and Employment // СЗ RF. - 2004. - No. 28. - Art. 2901.

CHAPTER 1. SOCIAL GUARANTEES OF EMPLOYEES IN LABOR LAW

1.1 The concept of job security

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

1.4 Guarantees for employees who combine work with training

1.6 Guarantees for employees in case of temporary disability

1.8 The concept of compensation in the world of work

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

1.10 Compensation for business trips, sending employees for advanced training and to work in another area

1.11 Compensation for persons who combine work with study

1.12 Employee medical treatment compensation

1.13 Protecting the 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 law contract

2.2.2 Guarantees 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 equated means of individualization

2.4 Civil rights guarantees

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

3.1 Legal nature of the employment contract and civil law contract

3.2 The difference between an employment contract and a civil contract

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

CONCLUSION

The source of financing for guarantees and compensations can be both the employer's funds and the funds of bodies and organizations in whose interests the employee performs state or public duties (juries, 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, for wages, employees are provided with certain guarantees in the following cases: 1) being sent on business trips; 2) moving to work in another area; 3) performance of state or public duties; 4) combining work with education; 5) forced termination of work through no fault of the employee; 6) granting annual paid leave; 7) termination of the employment contract on separate grounds; 8) delays through the fault of the employer in issuing the work book to the employee 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, and an employment contract improves the position of the employee in comparison with the current legislation. In this connection, their establishment does not conflict with the law.

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

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

The existing guarantees for the exercise of these rights may also be of a property or non-property 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-dissemination of personal data. The listed guarantees can be recognized as non-property, since they do not have a value defined for the employee.

During the absence of an employee from 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 place of work of the employee, 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 the provision to the employee of the former place of work after absence for good 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 right of the employee to receive monetary remuneration for his work, that is, wages. In connection with which 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 average salary of an employee.

In connection with the foregoing, we can single out the following legally significant circumstances that characterize the legal concept of guarantees in the sphere of labor. Firstly, the establishment in the legislation, agreements, collective agreement, other local legal acts of the organization, labor contract. Secondly, the direct provision of labor rights provided for in the legislation. Thirdly, ensuring the implementation 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 working conditions, in particular the place of work. Property guarantees are always associated with the wages received by the employee.

The provision of non-property guarantees is associated with ensuring the rights that arise 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. Thus, this guarantee is valid even after the termination of the employment relationship. However, non-compliance by the employer with this guarantee entails the possibility for the employee to receive the losses caused by the rules of civil law after the termination of the employment relationship with him. At the same time, the person with whom the employment relationship has been terminated may demand not only compensation for losses incurred in connection with the refusal of the employer to comply with non-property guarantees, but also compensation for moral damage.

Property guarantees also operate in parallel with labor relations. However, separate guarantees are provided even after dismissal from work. These include severance pay paid to laid-off persons. However, the presence of this guarantee does not affect the fate of the employment relationship that has been terminated.

In connection with the foregoing, it can be concluded that guarantees are associated with the provision of 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 compensation for moral damage due to non-compliance with the established rules of conduct legislation.

1.2 Guarantees for 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 perform an official assignment outside the place of permanent work. At the same time, business trips of employees whose permanent work is carried out on the road, for example, train conductors, or has a traveling character, are not considered business trips, since the implementation of business trips in this case is an integral part of the labor function, that is, it is of a permanent nature. This definition allows us to identify several legally significant circumstances, the proof of which allows us to recognize the trip of an employee as a business trip.

Firstly, such a circumstance is the presence of a permanent place of work for the employee. 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 implies 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 by an authorized representative of the employer of an order to send an employee to perform an official assignment for a certain 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 familiar with it. The absence of this order allows the employee to refuse a business trip. The order of the authorized representative of the employer must indicate what specific official assignment the employee should perform 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 labor function at the place of permanent work, since in this case the place of business trip becomes the permanent place of work. The direction on a business trip, as a rule, occurs in addition to the will of the employee.

However, by agreement with the employee, the period of a business trip can be extended, but at the same time, the employee must be provided with additional benefits compared to 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 absence of the will of the employee distinguishes a business trip from a temporary transfer to work with another employer or in 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 same place of work.

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

used in Art. 166 of the Labor Code of the Russian Federation, the wording allows us to conclude that a business trip can be recognized not only as the performance of an official assignment in another locality, that is, in another locality, but also in the same locality outside the place of permanent work. In this connection, a trip by order of the employer to perform 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 makes it possible to single out 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 job assignment outside the place of permanent work, that is, on a business trip. These guarantees include, first of all, the fulfillment by the employee of a job assignment, which is part of the employee's labor function. The assignment to an employee of additional work compared to the labor function requires obtaining his consent, as well as payment for additional work performed. The mode of work 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 by the employee with additional pay or other rest time equal in duration to the overtime worked.

Secondly, it is possible to highlight the guarantees provided to an employee sent on business trips at the place of permanent work. These include the preservation of the place of work (position) for the employee, 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 current legislation. The fact that an employee is 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 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 is obliged to ensure that the employee is sent his average earnings. This transfer 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 an 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 area. One of the guarantees provided to employees when moving to work in another area is the inadmissibility of deterioration in the working conditions specified in the invitation to work.

A person invited or transferred to another locality is guaranteed the preservation of earnings for the time spent 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 duty is to pay wages for all days spent on the road.

The employer is also obliged to provide the employee with time with the preservation of average earnings for settling in a new place of residence. Thus, guarantees when moving to work in another area are associated with the provision of work and working conditions to the employee, stipulated in the invitation to work, and the preservation of earnings for the time spent 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 time he fulfills state or public duties in cases where, in accordance with federal law, these duties must be performed during working hours.

In accordance with Part 2 of Article 170 of the Labor Code of the Russian Federation, the state body or public association that involved the employee in the performance of state or public duties, pay compensation to the employee for the time the performance of these duties in the amount determined by law or by the decision of the relevant public association. A state or public body that engages an employee to perform duties during working hours pay him compensation, and not guarantee 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. Cases of release of an employee from work to perform state duties are listed in federal laws. These include the performance by the 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 provided for by law, as well as agreements in force in the organization, a collective agreement. In this connection, at the end of the employee’s performance 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 cases specified by law and other regulatory legal acts, retain the average wage. In particular, the employer is obliged to keep the average salary 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 enters or studies, who are provided with the corresponding guarantees.

First, we can highlight 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 leave without pay: 1) to employees admitted to entrance examinations to 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 for passing intermediate certification - for a duration of 15 calendar days per academic year, for preparing and defending a final qualifying work and passing state exams - for a duration of four month, for passing the final state exams - one month; 3) employees who are students of the preparatory departments of educational institutions of higher professional education, to pass final exams lasting 15 calendar days. For the listed employees, as a guarantee, they are released from work by providing them with unpaid leave of a specified duration, as well as maintaining their place of work (position) and previous working conditions. Granting of the listed holidays does not depend on the discretion of the employer. In this connection, the employee has the right to use the specified holidays with the notification of the representatives of the employer about the use of educational leave for the duration established by law.

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

Secondly, we can highlight 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 to educational institutions of secondary vocational education with state accreditation, lasting 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) exemption from work in the listed cases, which does not depend on the discretion of the employer; 2) maintaining the place of work (position) with the same working conditions; 3) maintaining 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 in part-time (evening) and part-time forms of education in educational institutions of secondary vocational education with state accreditation are granted, within 10 months preceding the completion of a graduation project (work) or passing state exams, the right to reduce the working week 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) preservation of the place of work (position) and previous working conditions for the employee; 3) saving for the employee during the period of release from work 50 percent of the average earnings, but not lower than the minimum wage.

Agreements, a collective agreement, an employment contract may provide additional guarantees compared to the legislation for persons receiving secondary vocational education. For example, the listed guarantees can be provided by the employer at his own expense and to employees who receive secondary vocational education 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 that 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 debts, are provided with additional holidays 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 pass exams, which does not depend on the discretion of the employer; 2) preservation of the work (position) and previous working conditions for the employee; 3) preservation of the average salary for the employee for the period of study leave.

Agreements, a collective agreement, an employment contract may provide for additional guarantees for persons enrolled in programs of initial vocational education, in particular, the provision of the listed guarantees to employees receiving education in educational institutions of initial vocational education that do not have state accreditation.

Fourthly, guarantees can be allocated to employees studying in evening (shift) general 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 debts, are provided with additional holidays with the preservation of average earnings for passing final exams in the 9th grade lasting 9 calendar days, in the 11th (12) class duration of 22 calendar days.

In this case, the guarantees 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 work (position) and previous working conditions for employees for the period of vacation; 3) preservation of the average salary for the employee for the period of vacation.

Based on part 3 of Art. 176 of the Labor Code of the Russian Federation, employees studying in general educational institutions with state accreditation, during the academic year, have the right to reduce the working week by one working day or by 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 of reducing working hours chosen by him. Reduced time is paid at the rate of 50 percent of the employee's average wage, but not less than the minimum wage.

In this case, the guarantees are: 1) the release of the employee from work at his request for one working day a week during the academic 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 previous working conditions for the employee; 3) saving for the employee in case of reduction of working hours 50 percent of his average salary, but not lower than the established amount of the minimum wage.

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

In part 2 of Art. 177 of the Labor Code of the Russian Federation states that study holidays, by agreement between the employer and the employee, can be added to annual paid leave. Therefore, joining the study leave to the annual one is the right, and not the obligation of the employer.

In accordance with Part 3 of Art. 177 of the Labor Code of the Russian Federation, due to the requirements of the law, when an employee is trained 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 his own expense, to provide the employee with the guarantees necessary for studying in each of the educational institutions.

1.5 Guarantees for employees upon dismissal

When employees are dismissed for certain reasons, the legislation provides for the payment of severance pay to them. 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 an organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation) or a reduction in the number or staff of the organization’s employees (clause 2, part 1, 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, the said employees retain their average earnings for the third month from the date of dismissal by decision of the relevant body of the employment service, but at the expense of the employer, if the employee applied to this body of the employment service within two weeks from the date of dismissal, but was not employed by him. In this case, the guarantees are: 1) the retention of the average salary for the employee for the period established by law, which has elapsed after the dismissal; 2) maintaining the insurance period for the period for which the average wage was paid to the dismissed person; 3) the preservation of the employee's preferential right to employment in the event of a reduction in the number or staff of the organization's employees during the entire period of retaining his earnings for the period of employment, since during this period the employer not only retains the obligation to preserve the average earnings for the employee, but also to accept measures for the employment of the dismissed.

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

In this case, the following acts as guarantees: 1) saving for the employee within two weeks from the date of dismissal of the average monthly salary; 2) retention by the employee within two weeks from the date of dismissal of the insurance period in connection with the payment of the average monthly earnings for this period; 3) preservation of the right for the employee within two weeks from the date of dismissal to employment with the same employer in the presence of relevant vacancies and the removal 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 guarantees the preferential right to remain at work, primarily to employees with higher labor productivity and qualifications. With equal labor productivity and qualifications, the following criteria are applied to resolve the issue of the presence or absence of a preferential right to remain 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 in the family of the dismissed employee of other employees with independent earnings; 3) getting a labor injury or an occupational disease in this organization; 4) the presence of a disability in connection with participation in the Great Patriotic War or in military operations to defend the Fatherland; 5) advanced training in the direction of the employer on the job. The collective agreement may also indicate other categories of workers who enjoy the priority right to remain at work with equal labor productivity and qualifications. At the same time, the prevailing right to leave at work may 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 position) 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 against receipt at least two months before the 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 allowance in the amount of at least three monthly earnings of the employee. This payment must also be made at the time of dismissal of the employee. Violation of the terms and in this case is the reason for the payment of interest to the dismissed person, provided for in Art. 236 of the Labor Code of the Russian Federation.

In relation to these employees, the guarantees are: 1) maintaining the average earnings for three months after dismissal; 2) inclusion of the periods for which the average salary is paid in the insurance period; 3) maintaining the opportunity to continue labor relations by concluding an employment contract for existing vacancies that correspond to the qualifications of the dismissed employee. The named employees cannot be unreasonably 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 temporary disability benefits in accordance with federal law. The 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 time of work 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-ФЗ “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 are less than six months , temporary disability benefits are paid in the amount of the minimum wage. Employees who have overcome the six-month insurance barrier and have an insurance record of six months to five years are paid benefits in the amount of 60 percent of their average wages. With an 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 service, the allowance is paid in the amount of 100 percent of the employee's average earnings.

In connection with the foregoing, the guarantees for temporary incapacity for work of an employee are: 1) the preservation of the place of work (position) for the employee for the entire period of incapacity for work. The employer has the right to accept another employee in his place for the period of 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 a return to the previous workplace. In this connection, the employee accepted for this workplace 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 previous working conditions for the employee, 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 wage increases. Temporary disability benefit should be paid in an increased amount from the moment of salary increase in the organization, if it is not paid in the amount of the minimum wage; 3) keeping an employee's average earnings or part of it, depending on his insurance period, or paying him the minimum wage for an insurance period in the billing period of 12 months of less than six months. In accordance with Art. 184 of the Labor Code of the Russian Federation in the event of temporary disability due to an accident at work or an occupational disease, temporary disability benefits are paid to the 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 released from work as a result of their election to elective positions in state bodies, that is, in elected bodies of federal and regional authorities, as well as in local governments, are provided with guarantees provided for by special laws regulating the status and procedure for the activities of these bodies. Among the general guarantees that are provided to these persons are: 1) providing the opportunity to return to their previous job (position), which they performed before exercising their elective powers; 2) providing an opportunity to start equivalent work in the absence of a previous job (position); 3) preservation of the previous working conditions, which can be changed after the return of the employee to the 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, employees elected to trade union bodies and commissions on labor disputes are exempted from work to participate in its work, while retaining their average earnings. In this case, the following acts as 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 previous working conditions for the members of the CCC for the period of fulfillment of the duties of a member of the CCC; 3) preservation of the average earnings for the members of the CCC during the period of 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 released from work in an organization in connection with his election to an elective position in the 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 job (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 study or retraining - for a period of up to one year.

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

In this case, the following acts as guarantees: 1) the preservation of the former job (position) for the elected employee with the same working conditions, the presence of this position (job) 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 elective powers of the employee who previously performed this labor function; 2) provision of another equivalent job (position) in the absence of the previous job (position); 3) maintaining average earnings for the period of employment in the absence of the opportunity to provide work to an elected employee for a period of up to six months, and in case of training - for a period of up to one year; 4) inclusion of periods of performance of elective powers in the general or special length of service of the employee; 5) the inclusion of paid periods of employment in the insurance period of the employee, subject to the payment of the relevant insurance premiums.

In 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 the costs associated with the performance of 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.

Firstly, compensations are compensatory in nature, they are designed to reimburse the employee for certain costs. These costs can be compensated to the employee both for the past time and in the case of future expenses, for example, to pay for travel to and from a business trip. Whereas the guarantees that are provided to employees do not have a compensatory nature. Guarantees are designed to ensure the implementation of labor rights of employees.

Compensations are aimed at reimbursement of expenses incurred by employees in the performance of established duties, as well as in the exercise of certain rights, in particular the right to training.

Secondly, the application of the concept of "compensation" involves proving the existence of a direct connection between the incurred or expected costs of the employee and the performance of labor or other duties provided for by federal law during the time allotted for the performance of labor duties.

That is, the connection between the incurred or future expenses of the employee and the performance of specific labor duties or other duties stipulated by federal law must be proven. The proof of these circumstances allows the employee to demand compensation for the costs incurred by him.

Thirdly, the employee's incurred or future expenses 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 expenses, thus recognizing them as compensable. In this case, the position of the employee in comparison with the current legislation improves, which is fully consistent with the legal principles of regulation in the field of labor. Expenses incurred by employees may be recognized as compensable 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. The employee is not obliged to spend personal funds in the performance of labor duties, state and public duties provided for by federal law. In this connection, the funds necessary for the performance of these duties, in cases provided for by law, must be provided to him by the employer. The refusal of the employer to pay the employee the amounts necessary to fulfill the listed obligations allows the employee to refuse to fulfill them, for example, from going on a business trip in the absence of the necessary funds for this, which the employer is obliged to provide. The expenses incurred by the employee, recognized as subject to compensation, must be reimbursed to him at the first payment of salary.

Failure to meet the deadlines for 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 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 law when compensating for incurred or future expenses. However, the application of local rules in the payment of compensation has its own characteristics. Expenses that are reimbursed to an employee on the basis of 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 lies in the fact that it sets the maximum allowable parameters for reimbursement of expenses incurred by an employee. Exceeding the specified parameters at the expense of the employer's own funds is considered as receiving additional income by the employee. Although in this case, the employer and the employee recognize the expenses incurred as necessary for the performance of labor and other duties and, therefore, subject to compensation.

The conclusion is that these payments cannot be attributed to the income of the employee, since they are used by him not to satisfy personal needs, but for the purpose of properly fulfilling the duties assigned to him. Therefore, the recognition of these payments as the employee's income in excess of the parameters established by law conflicts with the concept of compensation payments under consideration.

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

This definition is applicable when the circumstances under consideration are proved. It does not imply the possibility of limiting the amount of compensation due to an employee at the level of by-laws by attributing 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, with the consent or knowledge of the employer and in his interests, uses the employee’s personal property, he is paid compensation for the use, wear (depreciation) of the tool, personal transport, equipment and other technical means and materials belonging to the employee, as well as reimbursement of expenses related to 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, in order to recognize compensation payments made to an employee, the general concept of compensation payments is primarily applicable. In addition to the general circumstances included in this legal concept, Art. 188 of the Labor Code of the Russian Federation allows you to highlight special legally significant circumstances, the proof of which allows you to demand compensation for the use of personal property of employees in the course of work.

Firstly, such a circumstance is that the property used by the employee in labor activity belongs to the employee, and not to the employer. This property does not have to be owned by the employee. It is important that the employee use this property in the process of labor activity legally.

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, rather than the employee, becomes the beneficiary from the use of property during working hours. The employee performs a labor function in the interests of the employer. Therefore, the use of property to perform 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, the circumstance to be verified 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 process of labor activity is a right, not an obligation of the employee. In turn, the employer may conclude an agreement with the employee on the use of his property in the process of labor activity. This agreement is concluded in writing, after its conclusion, the employee has an obligation to use the property in the performance of labor duties. Corresponding to this obligation is the right of the employer to require the employee to perform labor 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 suffices to notify the representative of the employer about the use of property by the employee in the performance of the labor function and the employer accepts 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 detract from the rights guaranteed by law. The current legislation guarantees every citizen, including those who have concluded an employment contract, full compensation for losses incurred related to the use of property in the performance of labor duties. Therefore, an agreement between an employer and an employee cannot contain a condition that worsens the position of the employee in comparison with the law. In this connection, the amount of expenses subject to compensation cannot be less than the actual costs of the employee in the course of labor activity, as well as the actual depreciation of his property used in work. Therefore, the amount of compensation payments specified in a written agreement between the employer and the employee is not an obstacle to reimburse 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 expenses of organizations for the payment of compensation for the use of personal cars for business trips, within which, when determining the tax base for corporate income tax, such expenses are included in other expenses related to production and implementation” established the following norms of compensation payments: 1) when using cars with an engine capacity of up to 2000 cubic meters. cm inclusive - 1200 rubles per month; 2) when using cars with an engine capacity of more than 2000 kb. cm - 1500 rubles per month. Exceeding the specified norms entails the inclusion of amounts received as compensation by the employee in excess of the named norms for compensation of expenses in the employee's income subject to taxation. In this connection, the right of the employee to receive full compensation for expenses incurred in the performance of labor duties is violated.

Although, based on the data 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 expenses of an employee in the performance of labor duties in an amount exceeding the listed standards relate 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 a basis for distinguishing between compensation payments and employee income. In connection with the foregoing, it is possible to conclude that the specified 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 the business trip and back; 2) the cost of renting a dwelling; 3) additional expenses 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 expenses of the employee as compensable due to the fact that they are caused by the need to fulfill labor duties.

In part 2 of Art. 168 of the Labor Code of the Russian Federation states that the procedure and amount of reimbursement of expenses associated with 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 position of employees in comparison with the law.

Decree of the Government of the Russian Federation No. 729 “On the amount of reimbursement of expenses associated with business trips on the territory of the Russian Federation, employees of organizations financed from the federal budget” dated October 2, 2002 established standards for reimbursement of travel expenses to the place of business trip and back.

In Art. 168 of the Labor Code of the Russian Federation also says nothing about the possibility of limiting the 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 for 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 an employer sends an employee for advanced training with a break from work, he retains his place of work (position) and the average salary. Employees sent to improve their skills with a break from work in another area are paid travel expenses in the manner and amount that are provided for employees sent on business trips.

Thus, employees who take an advanced training course in another locality receive compensation payments according to the rules established for business travel expenses. However, in this case, it should be borne in mind that employees have the right to compensation for expenses incurred during advanced training in full, the restriction 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, the specified employees are provided with: 1) preservation of the place of work (position) with the same working conditions; 2) maintaining average earnings during advanced training; 3) providing an opportunity to use the skills acquired during advanced training in the course of labor activity.

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, members of his family 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 reimbursement by organizations financed from the federal budget, expenses to employees in connection with their relocation to work in another locality" dated April 2, 2003 established that the costs of relocating an employee and members of his family (including insurance contribution for compulsory personal insurance of passengers in transport, payment for services for issuing travel documents, expenses for the use of 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 expenses 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 these purposes. In this connection, the employer is obliged to give the employee the funds necessary for a business trip, advanced training in another area, moving to work in another area. The employee's lack of sufficient funds allows him to refuse to fulfill his 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 provision of documents confirming that they were incurred by the employee. Failure by the employer to fulfill this obligation allows the employee to demand the application of unpaid amounts 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 the payment of amounts due to the employee, including compensation established by law and local regulatory legal acts of the organization.

worker guarantee

The current legislation does not oblige the employer to pay the employee who combines work with training the expenses 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 for employees studying by correspondence in educational institutions of higher professional education with state accreditation, once in the academic year, travel to the location of the educational institution and back. The minimum standard 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 compensation to the employee in a higher amount than the payment for travel on business trips and back for employees of organizations financed 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 with 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, the amount of payment for travel on business trips and back, which are established for organizations financed from the federal budget, is also used as the minimum established by the state. However, the minimum in this situation 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 at a secondary specialized educational institution, for example, to pay the cost of travel to and from the place of study in full. In this case, the employer recognizes the need for the employee to improve his qualifications. In this connection, the expenses of the employee on travel to the place of training and back are related to labor activity.

Therefore, they should not relate to the income of the employee. 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 obligations of the employer to compensate employees who combine work with education are limited to paying the cost of travel to and from the place of training, and when studying in secondary vocational educational institutions - partial payment of the cost of travel 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 and from the place of study 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, which provides for the payment of interest for each day of delay in the amounts due to the employee.

In addition to obligations, the employer has the right to pay the employee the costs associated with training. The employer may, at his own expense, compensate the employee for the expenses that arise when studying at higher and secondary vocational educational institutions. For example, an employer may pay the cost of training an employee at specified educational institutions. Payment by the employer for the employee's studies allows us to conclude that he has improved his qualifications at the expense of the employer. In this connection, employees 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 for advanced training. In particular, an employee can receive compensation for the cost of travel to and from the place of study to pass an intermediate certification, reimbursement of housing expenses, daily allowances in the amounts established for business trips of employees of organizations financed from the federal budget. These payments are directly related to the labor activity of an employee who undergoes 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's funds should be recognized as compensation payments, and not the employee's income. These payments correspond to the definition of compensation, which is available 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 tuition fees, compensation of other expenses for employees who improve their qualifications at the expense of the employer's funds may be placed in the local regulatory legal acts of the organization, in an agreement between the authorized representative of the employer and the employee. This condition improves the position of workers 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 mandatory for execution.

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

And, on the contrary, the employee has the right to receive payments established in local regulatory legal acts, labor contracts, corresponding to this obligation. Thus, the legislation provides a non-exhaustive list of employer's obligations to compensate employees for expenses related to training. This list can be expanded at the expense of the employer.

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

In accordance with paragraphs. 3 p. 1 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) additional medical care (in excess of that provided for by compulsory medical insurance), including for additional food and the purchase of medicines; 2) outside (special medical and domestic) care for the insured, including those carried out by members of his family; 3) for sanatorium-and-spa treatment, including vacation pay (in excess of the annual paid leave established by law) for the entire period of treatment and travel to and from the place of treatment, to compensate for 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 at home; 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 of provision for employees are made at the expense of the Social Insurance Fund of the Russian Federation, in which the employee must be insured by the employer against industrial accidents and occupational diseases. To pay for the cost of travel to and from the place of treatment, per diems for the time spent on the road, the standards established to compensate the expenses of employees of organizations financed from the federal budget during business trips are used.

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

The foregoing allows these employer payments to be included in the number of compensation 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. The 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 the employee's ability to work are directly related to labor activity.

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. In part 1 of Art. 1 of the Labor Code of the Russian Federation provides 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 ensuring the rights of everyone to the protection by the state of his labor rights and freedoms. This principle is specified in chapters 56 - 58 of section XIII of the Labor Code of the Russian Federation, dedicated to the protection of labor rights of workers.

In modern Russia, among employers, the number of private property organizations, individual entrepreneurs and other individuals using the labor of hired workers 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 its observance is growing.

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

The main ways to protect 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 of Part 2 of Art. 352 of the Labor Code of the Russian Federation in the first place is the self-defense of labor rights by employees. This does not mean a weakening of the state protection of workers from violation of their rights, but is aimed at the need for special attention to the implementation by workers of the possibility of self-defense by legal means.

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 establishes 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 of labor rights by employees (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 compliance with 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 contribute to the protection of the labor rights of employees through 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).

The activities of the Public Chamber of the Russian Federation, a newly created body, are aimed at ensuring the protection of the rights and freedoms of citizens and public organizations in the formation and implementation of state policy, as well as exercising public control over the activities of federal state authorities of the constituent entities of the Russian Federation and local governments.

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

As for self-defense by employees of their rights, the Labor Code of the Russian Federation provides for their forms and the obligation of the employer not to prevent employees from exercising self-defense.

To the forms of self-defense by employees of their labor rights Art. 379 of the Labor Code of the Russian Federation includes:

1) a written refusal of the employee 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.

Refusal of an employee 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 hard work and work and work with harmful and (or) dangerous working conditions not provided for by the employment contract , does not entail bringing him to disciplinary responsibility (Article 220 of the Labor Code of the Russian Federation).

For example, a delay in the payment of wages for more than 15 days can 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 wages not in full amount refer to forced labor, he has the right not to go to work until the delayed amount is paid to him.

The ways of protection by 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 by all means 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 those methods that are indicated in the Labor Code of the Russian Federation.

Judicial protection of the labor rights of employees is carried out in the resolution of individual labor disputes by the courts.

A special place among the ways to protect the labor rights of workers is occupied by state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, since in its implementation the power of state (legal) influence on employers, their representatives is used, forcing them to mandatory compliance with the instructions of the competent authorities to eliminate the detected violations, and, in addition, measures of state coercion - bringing those guilty of violations of labor legislation to disciplinary, administrative or criminal liability in the appropriate case

State supervision and control - the activities of authorized state bodies aimed at verifying the compliance with labor legislation of employers' actions in labor management (establishing working conditions and applying labor legislation, other regulatory 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 compliance with labor legislation, other regulatory legal acts containing labor law norms, interact with trade unions, their inspections authorized to conduct 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 existence of the Federal Service for Labor and Employment as part of 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” provides that this service is a federal executive body that exercises the functions of supervision and control over compliance with labor laws and other regulatory legal acts containing labor standards. rights and other functions. According to the Decree of the Government of the Russian Federation No. 324 dated June 30, 2004, Regulations on the Federal Labor and Employment Service, it is primarily assigned the functions of supervision and control in the sphere of labor, employment and alternative civil service. These functions are performed by the Federal Labor Inspectorate, which is part of this Federal Service. The Federal Service for Labor Employment itself is under the jurisdiction of the Ministry of Health and Social Development of the Russian Federation.

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

This was followed by Decree of the President of the Russian Federation of May 20, 2004 No. 650 “Issues of the structure of federal executive bodies”, by which the Federal Service for Technological Supervision and the Federal Service for Nuclear Supervision were transformed into the Federal Service for Environmental, Industrial and Nuclear Supervision, which is managed by the Government RF.

Changes in the structure and powers of federal executive bodies have not yet received full legal formalization. Therefore, when covering issues of state supervision and control, previously adopted normative legal acts are also used, which have retained their 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 norms 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 in the territory of the Russian Federation.

The relevant federal executive authorities, performing the functions of supervision and control in the established field 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 the bodies of the federal labor inspectorate.

Federal executive authorities, executive authorities of constituent entities of the Russian Federation, local self-government bodies exercise internal control over compliance with labor legislation and other regulatory legal acts containing labor law norms in organizations subordinate to them in the manner and on conditions determined by federal laws and laws of 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 the functions of control and supervision in the established field of activity, except in 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 precise and uniform implementation of labor legislation and other normative legal acts containing labor law norms.

State bodies of supervision and control interact in the course of their activities among themselves, as well as with trade unions, labor inspectors of trade unions, associations of employers, 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 main principles (principles) in the acquisition and exercise of subjective civil rights by citizens (individuals).

It must be remembered that the participants in civil legal 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 existence 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 affair as an activity of a citizen or a legal entity (as a private individual), based on a private interest in the field of application of private, not public law . This can be both private business activity, and the private life of a citizen, and in general everything that is outside the state, political and other public activities pursuing public interests. The private business of a citizen or a legal entity must be protected by law from arbitrary interference in it by any person or state. Of course, the degree of closeness is assumed to be different depending on the nature of the private matter.

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

A direct continuation of the principle outlined 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 establishes 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 will" and "in one's own interest" determine the general direction in the operation of this principle at the stage of application of civil legislation. Of course, they cannot be interpreted literally, since there are cases when civil rights are acquired and exercised “not by one’s own will” (for example, by the actions of guardians in relation to minors) and “not in one’s own interest”, but in the interests of other persons, society and the state.

The Civil Code of the Russian Federation (Article 2) distinguishes three types of relations regulated by civil law: property relations, related personal non-property relations 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 sphere of the economy (paragraph 1, clause 1, article 2). Their main object is property that acts or can act as a commodity in commodity-money circulation.

Personal non-property relations related to property relations (paragraph 1 of clause 1 of Article 2) most often arise regarding 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 evaluation. 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 property relations created in parallel.

A separate variety is made up of relations for the protection of inalienable human rights and freedoms and other intangible benefits (clause 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 the moral damage caused to their owners can be applied. The Civil Code stands on 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 at the conclusion of a civil law contract (on the example of a work contract)

The contract is one of the most important institutions of the law of obligations, because. is a legal fact underlying the legal obligations. 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 contract is the most important means of legal regulation of property and relevant non-property relations and has the following main features.

1. The conclusion of an agreement leads to the establishment of a legal connection between the participants in civil transactions 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 of each other, regardless of whether they are citizens, legal entities, national-state or administrative-territorial entities represented by their authorities and management. The contract arises as a result of an agreement between its participants, requires reaching agreement on entering into an obligation and determining its terms, and coercion to conclude a contract is possible only in cases expressly provided for by law.

3. The exercise of the rights provided for 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 measures of coercion to the execution by the debtor of the stipulated terms of the contract.

When concluding contractual relations, determining the correlation between the norms of the law and the will of the parties when agreeing on rights and obligations in the contract is of great legal importance. Of decisive importance for the development of contractual conditions is the discretion of the parties and their agreement on the composition and procedure for performing actions, taking into account their interests and capabilities.

The contract 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 a contract, and the decision on the conclusion of contractual relations depends only on the will of potential counterparties. Coercion 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 and not provided for by law or other legal acts, provided that it does not contradict the current legislation. The parties may enter into a mixed contract that contains elements of different contracts, in which case they will be governed by the rules on the relevant contracts, the terms of which are contained in the mixed contract, unless the parties agree on which law applies to their contract.

4. The parties independently determine the terms of the contract, except when the content of the relevant terms of the contract is directly prescribed by law or other legal acts. This provision allows the participants of civil turnover to exercise their property independence and economic independence and compete on an equal footing with other participants in market relations. Freedom in concluding contracts and determining their content must be inextricably combined with the obligation to fulfill the accepted conditions, and their non-fulfillment or improper fulfillment is a civil offense. Therefore, ensuring the accurate and timely fulfillment of contractual obligations is a task of national importance, because the reliability of contractual ties and the increase in 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, 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 paragraph 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 “reasonable term” rule applies), does not apply to work contracts. For a contract, the term is an essential condition of the contract, and if the parties fail to reach an agreement on this condition, the contract is recognized as not concluded.

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

The special significance of the deadline lies in the fact that it is with its violation that the Civil Code (clause 2 of article 405) connects the consequences provided for in the event of delay (meaning responsibility for the impossibility of performance that accidentally occurred during the delay, the emergence of the creditor's right to refuse 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 paragraph 3 of Art. 424 of the Code, the price, unlike the term, is not an essential condition of the contract. If it is not 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, 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: the compensation of the contractor's costs and the remuneration due to him. The specified norm matters mainly in the event of a pre-contractual dispute brought to the court between the parties. With more complex types of contract, the price is usually determined by the estimate, which allows you 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 compared to how they are defined in the estimate? Regardless of whether the savings occurred due to the fact that the contractor used more advanced methods of performing work, or for reasons that are generally beyond the control of the customer (for example, the materials necessary for the work or third-party services have fallen in price), it is recognized that the customer should pay for the work in in the amount in which it was provided for by the price specified in the contract.

The Civil Code emphasizes in Art. 705 two kinds of risks. The first is related to the accidental loss 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, construction equipment transferred to complete the building, fabrics for sewing dresses, etc.). The risk in question is borne by the person who provided the relevant property. This expresses the principle known since the time of Roman law: the risk of an accident is borne by the owner. In the Civil Code itself (Article 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 risk allocation option relates to accidental loss or accidental damage to the result of the work performed before it is accepted.

The Code has established certain limits for a party to bear the relevant risks. Firstly, the owner, and hence the contractor, are exempted from the risk of destruction of materials and, accordingly, the destruction of the result of labor, if these 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 overdue party. This rule is mandatory. Therefore, it will be valid even when the parties in the contract establish otherwise.

The issue of advance payment and deposit is highlighted. The obligation of the customer to pay the contractor an advance (deposit) must be provided for in the law or in the contract. The transfer of an advance (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, without 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 remuneration 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 perform the contract at any time without explaining the reasons for the refusal. Such a reason may be the refusal of the bank to issue a loan to the customer, which he counted on when concluding a contract. Protecting the interests of the contractor in such cases, the Code provides for the need for the customer to pay his counterparty a part of the established amount for the share of the work that he has completed before receiving notice from the customer about the termination of the contract. The contractor is also entitled to demand compensation for his losses, which, however, should not exceed the total cost of the entire result of the work under the contract.

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

Along with property rights as one of the types of absolute rights that mediate the statics of property relations, another type of absolute rights is important - the exclusive right to the 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 in which they are created.

Unlike physical labor, the result of which is usually things, intellectual activity is the mental (mental, spiritual, creative) labor 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 in a printing house that prints books. However, in the civil law understanding, intellectual activity is not material and production activity, culminating in the production of books as things, but spiritual activity, ending, for example, in the creation of an ideal system of concepts of the science of civil law. The compositors, for all the importance of their work, only materialize the ideal results of the author's mental labor.

The result of intellectual activity is its product expressed in an objective form, which is called, depending on its nature, a work of science, literature, art, an invention or an 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 a big role in shaping its spiritual world and aesthetic level.

In market conditions, the timely and widespread use of the results of mental labor contributes to an increase in the efficiency of entrepreneurial activity, the quality and competitiveness of goods, works and services. Exclusive rights, first of all, to inventions, utility models, industrial designs, trademarks and other types of product designations are an important part of the intangible assets of enterprises. Along with other values, these rights can be invested in entrepreneurial 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, 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 depend in any way on national-territorial characteristics, “legal regulation of intellectual property” is within the jurisdiction of the Russian Federation (paragraph “o” of Article 71).

The most important role in creating conditions for the protection and use of the achievements of the human mind is played by civil law. And although it also cannot directly regulate the processes of mental activity, it is able to have a positive organizing effect on relations 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 incentives and

Depending on the nature of the result, 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 using the result of intellectual work, i.e. determine who is entitled and who is not entitled to apply the result. Within the framework of exclusive rights, authors of works of science, literature, art, inventors and designers, their employers and other persons are also granted personal non-property and property rights, methods and forms of protection of these rights are established.

Copyright, related, patent and similar rights, being exclusive absolute rights, provide their owners with a legal monopoly to perform various actions (to use the results of their creativity and dispose of them) while simultaneously 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 transfer of rights to use its results for a fee.

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 protection is one of the powers of subjective civil law, which provides for the possibility for an authorized person to apply law enforcement measures that correspond to the nature of the subjective right 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 technique. The term "protection" provides for the formation of legal, physical and material measures aimed at ensuring the exercise by all subjects of 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 protection is determined by the measure of the possible behavior of the authorized and obligated person and is associated with law enforcement measures. The right to protection is aimed at achieving provisions that contribute to the implementation of subjective civil rights at various stages of the actions of an authorized and obligated 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 circulation is carried out within the limits specified by law or by the will of their participants.

To protect the subjective civil right, 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 specified in the Civil Code of the Russian Federation can be divided into three groups depending on the mechanism of influence on the offender of subjective civil rights.

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

2. Appeal with the requirement to protect 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 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 law and order. Prosecutorial bodies take measures to eliminate violations of the law, bring the perpetrators to justice and exercise state supervision over the implementation of laws throughout Russia.

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

3. Self-defense of civil rights is the commission by an authorized person of actual actions permitted by law, 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 where the authorized person has limited opportunities to apply to law enforcement, state or public bodies.

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

recognition of the right;

restoration of the situation that existed before the violation of the right, and 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;

awarding to fulfillment of duties in kind;

indemnification;

recovery of a penalty;

compensation for moral damage;

termination or change of legal relationship;

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

in other ways prescribed by law.

Russian legislation allows the use of administrative measures and criminal prosecution to protect civil rights. This provision is based on constitutional norms that establish and protect the rights and freedoms of man and citizen. The Constitution of the Russian Federation, as a law of direct action, allows for a civil offense to apply measures to protect subjective civil rights using the legal mechanisms laid down 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. CORRELATION OF SOCIAL GUARANTEES IN LABOR AND CIVIL LAW

3.1 Legal nature of an employment contract and a civil law 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 specifics of the product itself and the form of its purchase and sale predetermine the relationship between the seller and the buyer, their duration, and the 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 in the Russian Federation” dated February 19, 1991 was adopted, which consolidated the new trends in the labor market characteristic of the Russian economy, singled out other labor market participants along with employees and employers 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 obsolete prohibitions in labor activity;

Flexibility of labor 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 on their own the issues of the number of labor force, the quality of work and the release from redundant workers.

The formation and development of the labor market took place in the context of the reduction of 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 workforce 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 production and marketing of products (performance of work), but also by the presence of archaic, inconsistent with the spirit of the times, methods of legal regulation of the organization of labor based on regulations that preserve the ideas and principles of administrative command methods of labor process management.

Formulated by L.S. Talem, the features of an employment contract as an agreement under which one person promises to another the application of his labor force to his enterprise (farm) as a non-independent worker, subject to the master's authority and the internal order of the enterprise, constituted for many years a model of legal connection: "employee - employer" . At the same time, the scientist considered the provision of labor to an industrial enterprise (farm) for a long period, the subordination of the employee to the internal order and the master's power, as well as the promise (duty) of the employer to pay remuneration (wage) as a characteristic feature of an employment contract, the scientist considered.

The criteria for delimiting the labor of an industrial worker from the labor of an entrepreneurial, independent, contract, assignment, commission, etc. regulated by a civil law contract, were supplemented and specified by many Trudovik scientists at the later stages of the development of labor law. Thus, to distinguish an employment contract from civil law contracts, additional criteria were proposed, such as: performance of work by personal labor; consent of a citizen to work as a worker or employee; inclusion of an employee in the staff of the enterprise; payment of wages (rather than remuneration) in accordance with the quantity and quality of labor; performance by the employee of a 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: objective (performance of work in accordance with the labor function); organizational (subordination of the employee to the internal labor schedule of the enterprise) and property (the nature of wages). Later, however, the author believed that "the time has come to include in the sphere of labor legislation all labor agreements providing for the performance of work, regardless of their term, including civil law contracts and assignments" .

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 "Paid Services", the contract, often involved in civil law for the legal registration of relations for the performance of various kinds of work, has given way to a special obligation - a contract of paid services. provision of services. The fundamental difference is that the contract for the provision of services for a fee 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 indicating the increasing importance of civil law in the regulation of labor relations is not so much the obvious blurring of the lines between an employment contract and a civil law contract for the provision of services, but the consistent position of the legislator, which aims to combine the efforts of two contracts in the legal support of a single subject - human labor activity.

V.N. Skobelkin came to the conclusion that there are no sufficiently defined and clear criteria to confidently separate an employment contract from a civil law contract, since both contracts regulate homogeneous relations related to 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 field of social organization of labor (contracts, leases, etc.).

The close interaction of labor and civil law contracts 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, ILO Convention No. 143 and ILO Recommendation No. 151 on migrant workers, promotes the idea of ​​free choice by a foreigner of a work 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 the legal status of 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 taken by the parties when choosing a particular type of contractual obligation is consistently observed. This novelty in the regulation of the labor of foreign citizens in Russia expands the range of their purely labor interests (along with entrepreneurial and other interests), going beyond the traditional labor relations formalized exclusively by an employment contract (Article 13 of the Law). The law does not establish any opposition of one contract to another, any preference for a specific method of legal regulation of labor activity.

Such differences can be made according to the following three criteria: 1) on the subject of the contract; 2) on obedience to the rules of internal labor regulations; 3) according to the one 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, the employee in the process of performing work 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 the employer, the employee is obliged to obey the rules of the internal labor schedule (clearly regulated work schedule, rest time, etc.) and be responsible for their violation, which is not the case when concluding a civil law contract. If you write in the contract that you are hiring a programmer with such and such a salary for a period until the full computerization of the company, then, no matter how you call it, in fact it will be an employment contract. When you conclude an agreement on the provision of such and such services for a fee, 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 law contract.

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

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

One of the conditions of the employment contract may be a test to verify the compliance of the employee with the work assigned 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 half a month. 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 act of acceptance of 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 the UST in terms of the amount of tax credited to the Social Insurance Fund does not include remuneration paid to individuals under civil law contracts, copyright and license agreements. That is, when concluding a civil law contract with a person, the employer will have to pay contributions to the Pension Fund and the Compulsory Medical Insurance Fund, and no contributions need to be paid to the Social Insurance Fund. This situation is explained by the fact that at the expense of the Social Insurance Fund, temporary disability of the employee is paid, and there is no such concept in the civil law contract.

But if the person you hired for temporary work under a contract is not listed anywhere else, labor inspectors are likely to insist that his 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 sick leave.

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

The combination of two types of contracts in the regulation of labor activity can also be seen in the example of the organization of labor of workers "without holding a regular position." Thus, Decree of the Government of the Russian Federation of April 4, 2003 No. 197 “On the peculiarities 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 work and does not require the conclusion (execution) of an employment contract." Consequently, these and similar works can be regulated by civil law contracts.

These regulations seem to me quite controversial, because. part-time workers are entitled to the same set of social guarantees as the main workers, with the exception of benefits that are provided to persons who combine work with education and work in the regions of 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. We should also not forget 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), while civil legislation, in principle, providing more opportunities to protect their rights, obliges the citizen to protect 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 specific. They are not remuneration for labor for the reason that they are not commensurate with the quantity and quality of labor actually expended by the employee in the period for which they were paid. Their intended purpose is to prevent possible losses in earnings due to the fact that the employee is distracted from the performance of labor duties.

The concept of "compensation", given in Art. 164, coincides in meaning with the concept of “compensation payments”, which has long been established in the science of labor law. In the educational and scientific literature on labor law, compensation payments are characterized as payments made in the 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 compensations in the following cases:

When sent on business trips;

When moving to work in another area;

When performing state or public duties;

When combining work with education;

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

When granting annual paid leave;

In some cases, termination of the employment contract;

Due to the delay due to the fault of the employer in issuing a work book upon dismissal of an employee;

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

Unlike the previous Labor Code of the Russian Federation, the new code specifies the provision of guarantees and compensations exclusively with the labor relations of the employee with the employer. Therefore, if guarantees and compensations are to be provided under the concluded contract, 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 whose interests the employee performs state or public duties (juries, donors, and others) make payments to the employee in the manner and on the conditions provided for by the Labor Code, federal laws and other regulatory legal acts of the Russian Federation. Thus, in this case, the employer does not bear any costs. Based on the analysis of each of the issues considered, we can conclude that guarantees and compensations represent a kind of protection of the rights granted to employees in the field of social and labor relations.

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When hiring employees, you will definitely mention the provision of a social package. This phrase means sick pay, deductions to various funds. And it's not just bonus program. You are required by law to provide employees with a social package upon employment. What other social guarantees exist?

The main social guarantees and compensations that you must provide to employees under the Labor Code of the Russian Federation:

1. Provision and payment of sick leave.
2. Provision and payment annual leave(28 days).
3. Social insurance.
4. Travel expenses.
5. When traveling nature of the work payment of transport costs.
6. Combining work with study. Compensation must be paid during the training.
7. Compensation in case of forced termination of work through no fault of the employee.
8. Compensation for downgrading or transferring an employee to a job with a lower salary.
9. Compensation in the event of an accident at work.
10. In certain cases, the termination of the employment contract.
11. If you yourself sent an employee for advanced training, then you must compensate him for his absence from the workplace.
12. Compensation for medical examinations.
13. Compensation in case a person becomes temporarily disabled.

Also in the Labor Code of the Russian Federation (in Art. 170,) guarantees are spelled out for employees performing state or public duties, for example, donating blood or speaking as a witness in court.

You need to remember that these are compulsory guarantees and do not constitute additional social security. If you are working in the pedagogical field, then you need to know the following: every 10 years of continuous work, employees are entitled to a year of vacation to write educational literature. They can be provided with both full and partial salary for the period of vacation, or let the teacher go “with nothing”. All this is provided at the request of the employee, and you determine the form of payment on the appropriate recommendation of the council.

I would like to note that social support for personnel can be provided at the expense of the prescribed collective agreement in which safe working conditions are guaranteed. Various compensations are prescribed there: what, for what, why. Each organization has its own provision on social support for employees.

Social support for personnel can be provided through a prescribed collective agreement, which will guarantee safe working conditions.

Women with children

You probably know that refusing to work for a woman with a child is at least illegal. There are a few more rules related to this topic:

1. If an applicant came to you and her child is under 1.5 years old, then a test for employment is not arranged for her.
2. If the child of your employee is under 3 years old or she is the mother of a disabled child, then call her to work in night shift or overtime, you can only with her written consent.
3. If the employee is on parental leave, she has the right to work part-time or work at home. However, the allowance must be maintained.
4. If the child of a woman working for you is not yet 1.5 years old, then she should be provided, in addition to the main lunch break, also breaks for feeding the child every three hours, lasting at least 30 minutes. In cases where there are two or more children, then at least one hour.
5. During the period of parental leave, you are obliged to keep the employee's workplace without interruptions in seniority. .

Motivational or additional package

Everything that is not in the law is additional social guarantees. This includes gifts that your company gives to the children of employees on New Year, as well as employees on certain calendar holidays. Gifts from the company for a birthday, wedding, childbirth, etc. Tickets to the theater and cinema can also become an employee's motivation. There is such an option as an additional payment for work experience. You can also offer compensation for expenses as additional social guarantees. For example, payment for cellular communications or gasoline (fuel and lubricants). If an organization gives employees such guarantees, then staff turnover becomes less, and team cohesion, on the contrary, is higher.

Everything that is not in the law is additional social guarantees.

Whether to assign additional guarantees or provide employees with only what is prescribed in the law is only your decision. And you need to accept it, based on what goals you pursue and what opportunities you have. After all, the motivation of employees is undoubtedly very important for the organization.

material and legal means that ensure the realization of the socio-economic rights of citizens - the right to work, to rest, to housing, to free education and free medical care, to material security in old age and in case of disability, etc. Social guarantees are provided by social policy, the material basis of which is the social funds of the state and enterprises, from which targeted social security payments are made.

Great Definition

Incomplete definition ↓

Social guarantees

a system of socio-economic and legal means that ensure the conditions for the life of members of society, social groups, realization of their interests, various connections and relations, functioning and development public system generally. The main this year include the right to choose a profession, the scope of application of labor, forms economic activity, receiving general and vocational education, the right of a person to realize his labor potential, abilities and adequate remuneration in accordance with the quantity and quality of labor, the equal equivalence of this remuneration to a set of consumer goods and services. Integral part The implementation of this year is to maintain optimal compliance in meeting social and individual needs, which is carried out through the distribution of the share of national income for consumption and accumulation. The part of the national income allocated for consumption is realized through wages and public consumption funds. The implementation of this year in the sphere of consumption means ensuring the minimum acceptable level of satisfaction of needs in housing, health care, education, income (in the scale of welfare and level achieved by society). economic development) to ensure an acceptable standard of living. To this end, a system of socio-economic standards is being developed that defines the lower limits of the minimum level of living goods to meet individual and social needs. These include minimum wages, pensions, stipends, education spending levels, children's preschool institutions, standards for housing, health care, education, a set of goods and services to meet vital needs. The minimum level of satisfaction of needs, guaranteed by society for citizens, should be linked to the achieved average standard of living. The function of social protection is performed by public consumption funds. They are designed to provide a guaranteed income for those who cannot earn a living (pensioners, the disabled, orphans), as well as an equal right for all members of society to receive free education, health care and housing. If these opportunities are not distributed to all, then the principle of free-of-charge loses its social meaning, since in this case the right of all members of society to an equal share of the national income from public funds consumption. The main this year includes the right to a minimum of life's blessings (guarantee of partially retained wages) of mothers employed in labor that provides optimal conditions for raising and maintaining the health of children in the first years of life after birth. The implementation of this year depends largely on the quantity and quality of consumer goods and social services provided to the population at the expense of society or in exchange for earned cash. Given the shortage of goods and services and, as a result, the lack of freedom to choose them, as well as the dominance of departments and monopolies of producers, this year of the population cannot be fully implemented. Ensuring the living conditions of individuals and social groups includes the right to choose consumer goods and services, housing, places of residence, health care facilities, culture, ways of organizing recreation, satisfying material and spiritual needs.