The modern world is moving more and more online every day. Virtual relationships, companies, contracts - virtual life has long acquired a legal basis, and persistently competes with reality. If people of the older generation are still distrustful of everything “electronic,” then for the younger generation, electronic work, electronic document management, “electronic” relationships with superiors have become the norm. How to conclude an agreement at a distance?
USEFUL : For more recommendations on the provisions of the contract itself, see the video on our YouTube :
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Who can you hire for remote work?
Definition of remote work - Article 312.1 of the Labor Code
The Labor Code contains the term “remote work”. This is an ordinary job under an employment contract, only without being tied to the employer’s office.
Imagine that there are two accountants. Maria works at , goes to the office. She is an office worker. And Elena - she does everything the same, only from home. She is a remote worker.
There are no restrictions in the Labor Code on which employees can be hired to work remotely and which cannot. Therefore, if conditions allow, take anyone: an accountant, a lawyer, a marketer, a sales manager.
How to issue an email with a contract
Let's move on from theory to practice. How to correctly draw up contracts concluded electronically? For example, if we are talking about exchanging emails, do all the terms need to be stated directly in the “body” of the letter, or could it be an attachment? And if an attachment, in what format?
The Civil Code remains silent on this matter and does not establish the obligations of the parties to use any specific information technologies and (or) technical devices when concluding an agreement in electronic form. This means that all these issues are determined by the parties independently. For example, issues may be agreed upon in a framework agreement concluded by the parties, which defines the procedure and conditions for concluding subsequent agreements in electronic form. If such nuances are not agreed upon by the parties, then each of them can use any option for document execution in electronic form.
Moreover, if the parties have not established other conditions, then different copies of the same agreement, for which the law provides for a simple written form, can be formed in different formats and even on different media, i.e. both in electronic form and on paper. After all, the Civil Code of the Russian Federation does not establish a ban on combining several methods of concluding an agreement in simple written form.
Legal basis
In accordance with the legislation of the Russian Federation (FZ-63), a qualified electronic signature (CES) is a complete analogue of a handwritten signature written in blue ink. Requirements of regulatory authorities to maintain paper document flow or to additionally affix documents certified by CEP are illegal. This rule also applies to contracts concluded in writing.
The current Civil Code speaks about the rules and recognition of the force of a contract in several articles.
Article 160 sets out the rules for concluding a transaction in writing, which must be carried out by concluding an agreement expressing its content, as well as signed by the parties or their authorized persons. Multilateral transactions and the rules for their conclusion are prescribed in clauses 2 and 3 of Art. 434 Civil Code of the Russian Federation.
Clause 1 art. 162 of the Civil Code of the Russian Federation provides for the possibility of concluding additional requirements that the parties may establish for the appropriate form of transaction, as well as consequences for non-compliance with these requirements.
An agreement can be concluded using mechanical or other means of copying a signature, using an electronic digital signature or with another analogue of a handwritten signature. If for physical or other reasons a citizen cannot sign, then an authorized person can do it for him.
The Arbitration Procedural Code (Article 75) states that documents drawn up using a facsimile signature, electronic digital or personal signature are accepted as written evidence.
The Labor Code of the Russian Federation (Article 312, paragraph 1 and paragraph 2) allows the use of an electronic form of the document when concluding an employment contract with a remote employee.
Even without an individual entrepreneur, you can conclude an agreement. In theory
Theoretically, a freelancer can use different types of contracts, for example, an author's contract or a contract agreement. Each has its own nuances, but the essence is the same - the client receives work/services under a contract and undertakes to pay them to the contractor (freelancer). Also, according to Russian law, if your client is a company, then its accounting department is obliged to withhold taxes from the fees, in particular, personal income tax (personal income tax) in the amount of 13%. If you entered into an agreement for the amount of 1000 rubles, you will receive 870 rubles in your account.
However, companies are not interested in entering into contracts with individuals due to the need to deal with taxes. Therefore, the easiest way is to register an individual entrepreneur and cooperate with clients as an individual entrepreneur. Immediately switch to a simplified tax regime (simplified tax regime) with payment of 6% of turnover. Now you enter into an agreement with the client, receive payment from him into the account and pay all taxes on income yourself.
Employee consent
According to the Labor Code, remote employees work like “full-time employees on a general basis.” In practice, this means that the employer:
- gives leave;
- pays sick leave;
- pays extra for overtime or work on holidays;
- pays daily allowance and reimburses business trip expenses;
- investigates accidents that occur during the working day. Let's say an employee falls in the office and breaks his leg. The employer is obliged to find out the cause of the fall and, if the employer is at fault, to compensate for the damage. The same thing with a remote employee. An accountant works from home and falls while preparing a report - the employer finds out what happened;
- provides equipment and programs for work or compensates if the employee has everything of his own. To work, you need a computer, a phone, and licensed Photoshop. If the employee has everything of his own, the employer pays compensation.
The general rule is this: the employer does the same for a remote employee as for an office employee. If anyone thought about saving money on this, it won’t work.
The employer has the right to transfer an employee to remote work. This can be done at the initiative of the company or employee.
Employer offer. If the transfer is the initiative of the employer, he informs about it two months in advance. There is a notification for this: from such and such a date we propose to switch to remote work. The notification must be given in person and the employee must be asked to sign that he has seen the proposal and agrees with everything.
The work that the employer is obliged to offer - Article 74 of the Labor Code
An employee has the right to refuse to work remotely. Let's say we're talking about accountant Maria. If an employer wants an accountant to work remotely, but Maria is against it, he has two options:
- agree with Maria and allow her to work in the office;
- refuse and fire Maria.
You can't just fire someone like that. First, the employer offers available vacancies. There are a lot of rules, but here’s the main thing: you must offer literally all available vacancies. For example, a doctor, a financial director and a cleaner. That's all.
You can fire if an employee refuses a new job - Labor Code
We invite you to familiarize yourself with the List of documents for registering a lease agreement for non-residential premises: a package of necessary papers and a list of materials that are additionally needed
If an employee refuses offers, the employer has the right to dismiss him; the seventh paragraph of Article 77 of the Labor Code gives the right. He says that the company changed the working conditions and offered other vacancies, but the employee refused.
Employee proposal. An employee may himself request to be transferred to remote work. To do this, he writes a statement and talks about the reason.
Typically, an employee’s request is related to the fact that it is difficult to get to work, or they want to go to another city, they have a child, or they need to care for elderly relatives. The employer has no obligation to agree to the employee's request. Therefore, even if the employee really wants it, but the employer is against it, the employee will have to go to the office or quit.
Conditions for recognizing the legal force of contracts signed with a simple electronic signature
- One way or another, it should follow that your electronic document is accompanied by an electronic signature. In order for the electronic address (e-mail) itself to be considered a simple electronic signature, it should be explicitly provided for in the agreement that all electronic letters sent from the parties’ electronic addresses are considered signed by a simple electronic signature - an electronic address (e-mail address).
- Your agreement for the use of electronic signatures (this can be a separate agreement for the use of electronic signatures or part of the main contract) should clearly indicate how to identify the person who puts the electronic signature, i.e. how to compare a specific electronic signature and a specific person (counterparty to a transaction).
- The agreement on the use of electronic signatures should provide for the obligation of the parties to maintain the confidentiality of their electronic signature (for example, not to transfer the password, not to transfer access to email, etc.).
An agreement signed with a simple electronic signature is considered to be concluded in writing. The electronic form of the agreement is not an independent form, but is a type of written form of the agreement (on a par with the paper written form).
https://www.youtube.com/watch?v=ytpolicyandsafetyru
If you do not include in your correspondence the condition that the email address be recognized as a simple electronic signature, then such documents will not be considered signed, and the agreement, accordingly, will not be considered concluded in writing (in the absence of a signature), however, such documents will not lose legal force written evidence and on the basis of Art.
162 of the Civil Code, if the law does not directly provide for such a consequence of failure to comply with the written form of a transaction as its nullity, in order to prove the terms of your transaction (unsigned agreement), you can refer to just such written evidence. Articles 161 and 162 of the Civil Code
We suggest you familiarize yourself with where and how a marriage contract is concluded, is it possible to draw up a contract during marriage?
Article 161. Transactions made in simple written form
1. Must be made in simple written form, with the exception of transactions requiring notarization:
1) transactions of legal entities among themselves and with citizens;
2) transactions between citizens for an amount exceeding at least ten times the minimum wage established by law, and in cases provided for by law, regardless of the amount of the transaction.
2. Compliance with a simple written form is not required for transactions that, in accordance with Article 159 of this Code, can be concluded orally.
Article 162. Consequences of failure to comply with the simple written form of the transaction
1. Failure to comply with the simple written form of a transaction deprives the parties of the right in the event of a dispute to refer to testimony in support of the transaction and its terms, but does not deprive them of the right to provide written and other evidence.
2. In cases directly specified in the law or in the agreement of the parties, failure to comply with the simple written form of the transaction entails its invalidity.
3. Failure to comply with the simple written form of a foreign economic transaction entails the invalidity of the transaction.
Thus, for a contract for the provision of services there is no provision for its nullity if the written form is not observed.
There are many more recommendations that can be given, however, no matter how trivial it may sound, it is better to get individual legal advice, as a result of which an optimal scheme will be developed for you specifically for your activities, for your Internet project, which will allow you to avoid not only possible legal errors, entailing, for example, a refusal to recognize the legal validity of a transaction you have concluded via the Internet, but will also minimize possible problems with proving the legal validity of such a transaction.
* The relevance of the answer was checked for compliance with the legislation in force as of October 30, 2012.
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Real worker - electronic “papers”
Documents for an employment contract
The rules for registering a remote employee are almost the same as registering an office one. The list of documents is the same:
- personal documents of the employee. This is a passport, insurance certificate and educational documents, if necessary;
- documents on working conditions. Typically these include a job description, labor protection instructions, provisions on personal data and trade secrets;
- employment contract;
- The order of acceptance to work.
There are two differences compared to office employees. The first is a work record. According to the Labor Code, the employer is not obliged to fill it out for a remote employee, only if he asks. A request is a statement from an employee with his signature.
Another difference in paperwork is that you don’t have to meet to sign the documents. There are two ways to do this. The first is through Russian Post or courier. The employer sends two copies of the employment contract and documents on working conditions, the employee signs and sends one copy back. This is how he shows that he has seen everything and agrees with everything.
Another way to take on remote work is to sign documents remotely. But here, as always, there is a catch. There are companies that believe that remotely is when an employee receives an employment contract by email, prints it out, signs it, scans it and sends the scan by mail. This is not true for remote work.
To hire a remote employee, he and the employer must sign an employment contract, and the employee must show that he has seen documents about working conditions. For example, a job description and a provision on trade secrets. To do this, you will need the employee's electronic signature.
An electronic signature, or ES, is a replacement for a handwritten signature for electronic documents. She confirms that it was Maria Mashkina who signed the agreement, and not someone else. Receiving an electronic signature may take a week and three thousand rubles.
The Labor Code does not indicate who pays for obtaining a signature or does this in general. Usually the employer does this for the employee: he hires ten employees and pays for ten signatures. However, you cannot force an employee to sign at his own expense.
If an employee signs up by email. signature, a paper version of the contract is still needed. In this case, the employer sends the contract by registered mail. Delivery time: three calendar days from the date of signing.
My advice is to sign the agreement at a meeting or via electronic signature. According to the law, an employee has no right to work without signed documents, and shipping takes time. There is also a risk that the employee will forget to send a copy of the documents, the employer will forget about it, and the company will be left without documents.
In the digital environment, a qualified or unqualified (if an additional agreement is concluded) digital signature is a guarantor of the authenticity of the document and its immutability and confirms authorship (according to Federal Law-63). All documents signed by the CEP are equivalent to paper documents.
The use of an electronic digital signature makes it possible to equate an electronic contract to a paper one, but there are exceptions to this rule. Some forms of documents can only be compiled on paper, and some - only in electronic form.
On paper
In cases prescribed by Federal Legislation, a transaction can only be concluded in an ordinary way, i.e. paper form (FZ-63). Agreements subject to mandatory notarization cannot be drawn up electronically. These include:
- contracts of purchase and sale or gift of real estate, etc.;
- annuity contracts.
We invite you to familiarize yourself with the Pledge (Mortgage) Agreement for Land Plots
Also according to Art. 362 of the Civil Code of the Russian Federation, a guarantee agreement is drawn up in simple written form and only on paper.
Electronic
Other types of contractual documents can be concluded in electronic or conventional form. The exceptions are electronic auction contracts (FZ-44), some forms of civil legal acts, and the conclusion of a remote work contract.
The procedure for preparing documents when hiring a remote employee is regulated by Art. 312.1 and 312.2 of the Labor Code of the Russian Federation. The employee receives the employment contract form by e-mail, enters his data into it, signs it with an enhanced qualified electronic signature - this is a requirement put forward by the Labor Code of the Russian Federation - and sends it back to the employer.
The documents required to hire a remote employee (Article 65 of the Labor Code of the Russian Federation): passport, diploma, work record book, military ID, certificate of compulsory pension insurance - can also be received by e-mail in the form of pdf files. You have the right to request notarized paper copies by mail.
However, the employer can specify the requirement for the personal presence of the employee at the time of conclusion and termination of the contract. Then the employee brings all the necessary documents with him.
Art. 312.2 allows for the option when, by agreement of the parties, information about remote work may not be entered into the work book; moreover, a remote employee may not have a work record issued at all, even if this is his first place of work. If the employee insists on making entries, he sends his work book to the employer by registered mail with notification. An employee working remotely receives a certificate of state pension insurance independently.
You must record all this in the employment contract: it can be included in a separate clause “Features of the organization of the employee’s work” or included in the clause “General provisions”. Don't forget to specify your email address, which will be used to communicate with the employee. Leave a field for the employee's email address.
In conclusion, I would like to repeat once again: you should not be afraid of remote employment. A remote employee means serious savings for the employer: there is no need to equip an additional workplace, spend money on a special assessment of working conditions, and much more. Fruitful and comfortable interaction largely depends on how detailed you write down all the conditions in the employment contract with a remote employee.
Question for a lawyer
I fulfill orders via the Internet, provide various online services, all correspondence is conducted through messengers (ICQ, Skype), as well as by email (e-mail).
I periodically exchange letters in the WebMoney system. Please tell me whether such electronic messages have legal force? Will the terms and conditions that I exchanged with the customer over the Internet (by email and other above-mentioned methods of exchanging documents) have legal force? Is it possible to conclude an agreement via the Internet?
https://www.youtube.com/watch?v=ytcreatorsru
If so, will an agreement concluded via the Internet (for example, by e-mail) be considered a written form of the transaction or is it a separate electronic form of the agreement?
Remote work format
In an employment contract, the employer and employee agree on everything: how long the employee works, how he receives tasks and reports, what equipment he will use.
The employee performs work remotely. The start date for remote work is November 21, 2020.
If the contract does not contain a work format, the labor inspectorate may have questions about why the employee is in another city or working from home.
Invoice for payment by email
In conclusion, let us dwell on one more point: is it possible to conclude an agreement electronically by issuing an invoice and paying it? That is, is it possible to issue such an invoice-offer not on paper, but in electronic form?
As already mentioned, paragraph 3 of Article 434 of the Civil Code of the Russian Federation provides that the requirement for a written form of the contract is considered met if a written proposal to conclude an agreement is accepted in the manner prescribed by paragraph 3 of Article 438 of the Civil Code of the Russian Federation. In accordance with this norm, the person who received the offer, within the period established for its acceptance, takes actions to fulfill the terms of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.
https://www.youtube.com/watch?v=ytadvertiseru
) is considered acceptance (acceptance by execution). The application of this rule of the Civil Code of the Russian Federation is in no way limited to the sphere of document flow on paper. This means that it can also be applied in the case of an offer (including invoicing) in electronic form. Note that these conclusions are confirmed by judicial practice (see.
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Where can I sign an ED?
Signing an agreement with an electronic digital signature is provided in various programs and systems. Among them:
- electronic trading platforms with government and commercial auctions;
- websites of commercial organizations that provide clients with the opportunity to remotely sign an agreement after registering and installing special software;
- accounting systems (SAP, Oracle, etc.);
- specialized EDI systems;
- Information Systems;
- special programs for using electronic digital signatures installed on a PC;
- web services.
In the Russian information space, the most commonly used software and web services are CryptoPro and Kontur.Crypto products. This is explained by the fact that it is the first developer of certified electronic signature tools.
Legal consultation
In order for an agreement concluded remotely (including via the Internet) to have legal force, by law it is necessary to sign documents and also exchange them by means of communication.
A signature can be considered not only your handwritten signature (signature put by you by hand on paper), but also any analogue of a handwritten signature, including an electronic signature, if the parties to the agreement specifically agree on this possibility and stipulate what will be such an analogue of a handwritten signature.
