Conclusion of civil law contracts (page 1 of 2)

Difference in terminology

The main difference between an employment contract and a civil contract is that the former is the subject of the study of labor law, the latter - civil law.

The Labor Code provides a clear definition of an employment contract with its components. The Civil Code gives a general definition, and then describes individual types of contracts, in particular, purchase and sale, contract, etc. Civil Codes have serious differences from each other. The conclusion of an agreement with employees is based on a standard form.

Despite the apparent ease of the question, it is actually associated with many nuances. Judicial practice shows that it is not so easy to determine which is an employment contract and which is a civil one, especially since the employer is trying in every possible way to avoid this.

To identify the difference between an employment contract and a civil contract, let’s look at the Labor Code.

Types of civil contracts

1. Contract agreement. The subject of the contract is the execution of the work specified by agreement between the parties (design, construction, installation, etc.) within the agreed period. The contractor performs the work using his own resources and at his own expense. The result of labor is accepted according to the acceptance certificate.
2. Service Agreement. The subject of the contract is services (for example, medical, consulting, educational). The customer must remember that an agreement providing for a person to carry out a licensed type of activity can only be concluded with a person who has the appropriate license. The fact of provision of services is confirmed by an acceptance certificate.
3. Agency agreement. The subject of this type of agreement is the implementation on behalf of one person (the principal) by another (the attorney) of a legally significant action. The attorney must be given a power of attorney to carry out the scope of actions provided for in the contract.
4. Commission agreement. Subject - conclusion by the executor (commission agent) on behalf of and for the benefit of the customer (committent) of transactions on his own behalf. The remuneration under such an agreement is often expressed as a percentage of the amount of the concluded transaction and is called a commission.
5. Agency contract. It implies two forms of representing the interests of the principal (in this case, the customer - a legal entity) - both on behalf of the contractor and on behalf of the customer. However, in both cases, a transaction with a third party is carried out at the expense of the principal (customer).

Difference in terminology

This is an agreement between the employee and the employer. The employer is obliged to provide work with a clear list of rights and responsibilities, and to organize appropriate conditions in accordance with the law. The next obligation is to regularly pay the salary agreed upon in the contract in accordance with the law (guaranteed minimum).

The employee undertakes to perform his duties under the control of the employer, observing internal regulations.

A GPA is an agreement between two or more persons that creates, modifies, or cancels rights and obligations. The difference between an employment contract and a civil contract is the presence of a clear list of conditions. In addition, each agreement has individual content and variations in terms.

Civil agreement: basics of the Labor Code of the Russian Federation

The definition of a civil contract (CLA) contains Article 420 of the Civil Code of the Russian Federation, according to which an agreement between a certain number (two or more) persons on the emergence, modification or abolition of rights and obligations between them is recognized as such. The conclusion of a civil contract between a legal entity and an individual does not contradict the law if, as a result of such an agreement, labor relations are not actually established.

A civil contract, unlike an employment contract, implies equal status of the parties

However, a GPA between an organization and a citizen can be concluded only if certain conditions are met:

How to conclude a job contract correctly:

1. The citizen will perform temporary work.
2. At the same time, the company will not provide working conditions for the citizen and provide him with tools to perform the work.
3. The agreement of the parties provides only the outcome of the work and the deadline for its completion without regulating the labor regime of the contractor.

How does an employment contract differ from a GPA (table)

With whom can you enter into a GPA?

A GPA can be concluded with an individual acting in legal relations as an individual entrepreneur or directly as an individual who does not carry out entrepreneurial activities. At the same time, the law does not limit the organization in choosing a counterparty by the nationality of the performer - the GPA can be concluded both with a citizen of the Russian Federation and with a foreigner or stateless person.

The law allows civil agreements to be drawn up with persons over 14 years of age, but for those under 16 years of age, parental permission is required.

Structure of an employment contract

What are the distinguishing features of an employment contract from a civil agreement?

First of all, let's pay attention to the points of the agreement:

• information about the employee (full name);
• information about the employer (full name of the representative of the organization or individual entrepreneur, name of the organization or its branch);
• TIN of the employee and employer;
• place of work;
• position according to the staffing table;
• day of hiring;
• the duration of the contract, if it is not unlimited;
• formula for calculating wages or salary;
• working hours;
• guarantees and compensation if an employee is hired under difficult and harmful working conditions;
• nature of the work (traveling, business trips, other options);
• place and date of signing the agreement.

Information about the employee and employer is taken from the citizen’s passport or document confirming the identity of a foreigner.

How does a GPC agreement for the provision of services differ from a labor agreement?

Before talking about the differences, let's talk about several common points of a civil contract and an employment agreement with an employee. So, both the first and second types of contracts are characterized by:

1. Registration in writing (the exception here is GPA between two individuals with an agreement amount of up to 10,000 rubles).
2. Bilateral agreements: both parties have rights and obligations. Moreover, both types of contracts are prepared in two copies, both must bear the signatures of the parties, and also contain the full details of both parties, by which the subjects of the contract can be identified.
3. Services under GPC agreements imply the personal participation of the performer, similar to that of an employment contract. It is worth noting that even an individual entrepreneur, by signing a GPA, actually undertakes to be the sole executor under the contract, and even when hiring hired employees to provide services (for example, when providing accounting, legal or consulting services), only a private businessman bears responsibility.

If we talk about the specifics of both types of contracts (labor versus civil contract), it is worth noting that preparation for concluding an employment agreement includes a little more steps:

• preparation and ratification of the Order of Enlistment;
• preparation of a package of personnel documents (personal file, employment record, etc.).

All preparation for a civil agreement consists of verbally reaching agreements. True, it happens that the customer prepares a separate technical specification in advance, which can subsequently be included in the contract.

Naturally, in both options, the parties begin to implement the agreements only after signing the contract.

The main requirements for the GPA, which share it with the employment contract:

• The contractor’s GPC agreement should not regulate either the daily work schedule, or mandatory presence in a specific office, or any support for his work activities, or incentives, or additional motivation.
• The subordination of the performer to anyone, etc., is also not allowed.
• The list of prohibited wording and the latest comments can be found in the definitions of the RF Armed Forces No. 66-KG17–10 or No. 34-KG17–10 dated 02/05/2018
• Another important point for all GPC agreements is that there should not be such a functional unit (even a vacant one) in the staffing table of the enterprise. Otherwise, it will be regarded by controllers as a substitution of an employment contract, and this is fraught with fines and sanctions for the company.

Table: GPA versus employment agreement, what is the difference

Video instruction: what is the difference between an employment contract and a civil law contract

Other terms of the employment contract

The contract may include additional conditions on trade secrets, special social insurance measures, a probationary period, and the obligation to work a minimum period if the training was paid for by the employer.

Thus, a standard set of conditions is provided that applies to all employees. Neither the industry in which they are employed, nor the organizational and legal form of the enterprise, nor the form of ownership (private or public) matters.

Can an outsider keep military records in an organization?

Maintaining military records is mandatory for all organizations, regardless of their organizational and legal forms and forms of ownership. According to the Decree of the Government of the Russian Federation of November 27, 2006 No. 719 “On approval of the Regulations on military registration,” their leaders are responsible for the state of military registration carried out by organizations.

In an organization with less than 500 employees, military registration may be assigned to an employee working part-time. The person responsible for maintaining military records is appointed by order of the head. By virtue of the Methodological Recommendations for maintaining military records in organizations approved by the General Staff of the Armed Forces of the Russian Federation on July 11, 2017, the order is drawn up in the form in accordance with Appendix 4 to these methodological recommendations.

It is advisable for heads of organizations to coordinate with the military commissar of the municipality the candidacies of military registration workers before appointing them to positions, and also to send to the military commissar copies of orders on the appointment of employees carrying out military registration in organizations to positions.

Based on the foregoing, we believe that it is impossible to maintain military records according to the GPA and the employer must appoint a full-time employee for this or assign these responsibilities to the head of the organization.

GPA structure

A civil contract with an individual, as the closest form of agreement, has a different structure.

• preamble (identifying the parties);
• the rights and obligations of each party;
• terms of payment;
• duration of the agreement;
• responsibility of the parties.
• other points.

The described structure is approximate; the parties to the agreement have the right to define it differently, although the presence of a number of points is mandatory.

The terms of a civil contract are formulated by the parties at their own discretion. They have the right to use one of the options proposed in the law, or establish their own rule, if such an opportunity is provided.

In civil law there is a principle according to which everything is permitted except what is directly prohibited by law.

The employer is obliged to adhere to the requirements of the law; it is prohibited to worsen the employee’s situation. The choice is limited to the options offered by law.

For example, concluding an agreement on full financial liability is permitted with limited categories of employees. The agreement is signed on the basis of a standard form; it is very difficult to go beyond its scope.

Composition and structure of the agreement

There is no standard form of GPC agreement. Depending on the type of agreement being concluded (contract, provision of services, rental or transportation, etc.), as well as the circumstances prevailing in a particular situation, the parties have the right to include in the document any conditions regarding the procedure for performing and paying for work, responsibility, validity periods agreements. To the extent not regulated by the terms of the agreement, the resulting legal relations will be regulated by the Civil Code of the Russian Federation.

In order to avoid the emergence of further controversial situations, the terms of the GPC agreement should be written down in as much detail as possible.

As a rule, the structure of the GPA includes the following sections:

1. Information about the parties to the agreement indicating documents confirming registration and powers of the representative - for a legal entity, confirming identity - for an individual.
2. Subject of the contract and general conditions - name of the work, execution time - initial and final.
3. Rights and obligations of the parties under the agreement.
4. The procedure for accepting work and paying for it.
5. Responsibility of the parties for non-fulfillment or delay in fulfilling obligations.
6. Other terms of the agreement - the terms of its validity, the procedure for resolving disputes, the number of copies, etc.
7. Addresses and details of the parties.
8. Signatures of the parties and seals (if available).

If the agreement is drawn up on one sheet of paper (with or without the back), the signatures of the parties are affixed only at the end. If the agreement is drawn up on several sheets, each sheet must be signed.

Sample agreement for the provision of services

First page.

The header of the agreement contains general information about the parties to the agreement - name, documents confirming the identity of the individual, the legal capacity of the legal entity and its representative

Second page.

Each sheet of the agreement must be signed and sealed by the parties (if any)

Rules for making changes

Changes in the terms and conditions contained in any agreement are made by drawing up an additional agreement to it. The additional agreement is drawn up according to the rules for drawing up a contract, with the only exception that it specifies only the changes being made.

Filing and storage of contracts

GPC agreements concluded by an organization with individuals are filed in a separate file and stored for 5 years.

Social security issues

The position of an individual in labor relations is different than in civil law relations.

• the employee receives guaranteed payment regardless of the volume and quality of work;
• vacations and sick leave are paid, and payments are made while citizens are on maternity leave;
• The law limits working hours (40 hours per week).

Contributions to social insurance funds and the Pension Fund under a civil contract with an individual are also made by the person paying for the work or services, but in a smaller amount and volume and at the expense of the person receiving the payments.

The employer provides part of the pension and social contributions at his own expense.

Features of the conditions contained in the GPC agreement

As noted above, a civil agreement is regulated, unlike a labor agreement, by the norms of civil law. Accordingly, all powers and obligations of the employee, his responsibility, benefits and guarantees (including the period of work in seniority, vacations, sick leave, financial assistance, etc.) provided for by the Labor Code and other legislative acts containing labor law norms are not applicable in this case .

All processes related to GPA are regulated by civil law

The conclusion of the GAP does not provide for the inclusion of the contractor in the staff, maintaining a personal file regarding him, or filling out a work book. If the contractor is an individual entrepreneur, he calculates and pays taxes and contributions independently; for an individual who does not carry out entrepreneurial activities, the accounting department of the customer enterprise must calculate the amount of tax and transfer it.

Most of the terms of a civil contract are established by agreement of the parties. The only exceptions are those that are directly provided for by civil law, for example:

How to conclude a fixed-term employment contract under the Labor Code of the Russian Federation:

• the contractor’s right to suspend work if the customer fails to fulfill counter-obligations under the contract agreement;
• the customer’s obligation to reimburse the contractor’s expenses in situations where the impossibility of performance arose against the will of both parties to the agreement on the provision of paid services.

List of basic conditions

1. The parties to the agreement are the customer and the performer (contractor), but not the employer and the employee (as in labor relations).
2. The subject of the agreement is the final result of the performer’s work.
3. The deadline for execution is set by mutual agreement of the parties. The contract must reflect the start and completion dates of the work. Intermediate deadlines can also be designated for individual stages of work.
4. The procedure for accepting work and paying for it is established by agreement of the parties. As a rule, work is accepted according to the act. Payment occurs within the period determined by the parties after acceptance; advance payment, advance payment, or payment for individual stages of work are possible.
5. Responsibility of the parties: the contractor is responsible for the quality of work and compliance with deadlines, the customer is responsible for timely payment, compliance with the terms of mutual obligations (if they are provided for in the contract).
6. Penalties for failure to fulfill obligations under the contract by the parties are established by the contract. As a rule, this is a penalty, a fixed amount of a fine, etc.
7. The duration of the contract is always determined.
8. The agreement may be terminated early on the grounds specified by the parties in the agreement itself, or by mutual agreement of the parties.

Important! A civil agreement between an organization and an individual must be drawn up in writing (Article 161 of the Civil Code of the Russian Federation).

Rights and obligations in labor relations

The law establishes rights and obligations in the Civil Code. In employment contracts, responsibilities are formulated according to a single standard. All employees have the same status.

A more important element is the determination of the scope of job responsibilities, which determine the labor function or what exactly the employee does at his workplace.

The government publishes a directory of professions; the document gives the names of professions, positions, and defines job responsibilities.

The description is given in general form. But this is enough to formulate a job description.

In enterprises, especially privately owned ones, there is a tendency to combine several positions in one or distribute additional responsibilities among several employees. In this regard, complaints are often heard that the employer is trying to force the employee to perform duties that he has nothing to do with. Naturally, there is no talk of additional payments in favor of the employee.

Is it possible to conclude a GPA to perform the work required by a vacant full-time position?

One of the cases when a GPA can be re-qualified as an employment contract is when an employee is hired for a specific position or profession (specialty) provided for in the organization’s staffing table. But it happens that a position is provided for in the staffing table, but it is not possible to find a suitable employee for it. And the solution in this situation may be to perform the work as a freelance worker registered under the GPA.

True, special attention should be paid to ensure that when providing such services, the contractor does not perceive signs of an employment relationship: submission to internal labor regulations, performance of services at a workplace created by the organization, receipt of a salary, etc.

Moreover, it is better if the performer does not perform all the duties provided for by the full-time position, or if the services provided differ from the duties provided for in the job description. Evidence of the absence of an employment relationship will also be the argument that the remuneration under the contract for the provision of services is more (or less) than the salary for the position, as well as that the contractor under the GPA during the provision of services did not contact the customer with an application (request) for hiring him for the corresponding vacant position.

Case Study

How, for example, does a civil contract for the performance of work or services differ from an employment contract?

The GPD participant independently decides where and how to organize the work process; the customer has the right to make claims only regarding the quality of the result obtained. The progress of the contract is not the customer's sphere of influence.

The employee is obliged to obey the schedule and follow instructions in the course of performing his work.

The customer has the right to challenge the contractor’s demand for payment of remuneration; such actions are prohibited with the employee. The law gives the right to recover damages from the employee, but the amount recovered is limited to the average earnings for the monthly period. The exception is cases of full financial liability. According to the Civil Regulations, damages are recovered in full.

Pros and cons of a GPC agreement for an organization and a citizen (table)

A civil contract concluded by an organization with a citizen, despite some similarities with a labor contract, is a fundamentally different form of cooperation. That is why the scope of application of such an agreement in the area under consideration is very limited: the conclusion of GPC agreements is allowed only for the performance of one-time work. The employer should be extremely careful when drawing up an agreement - any similarity with an employment contract (including the use of the concepts “Employer” and “Employee”) may lead to recharacterization of the contract.