State civil servant as a subject of labor law

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Published: 05/09/2017

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Each branch of law is characterized not only by a set of individual legislative norms and documents, but also by the presence of certain subjects. These entities, in accordance with the law, are endowed with rights and responsibilities and can exercise them in the course of their activities.

The sphere of labor law is no exception, the presence of subjects in which is established by the Labor Code of the Russian Federation. These subjects, as well as their specific rights and obligations, are worth considering in more detail below.

• Concept
• Types Basic
• Minor

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Types of subjects

The listed entities can be grouped by type:

• The main ones: employee and employer.
• Derivatives. This group includes all other participants in labor relations.

Depending on the nature of the rights and obligations, the participants in the legal relations under consideration can be grouped into general and special. A participant who has both special and general rights and obligations is called a special subject of labor law. For example, this participant may be a minor citizen or a pregnant woman: these categories of people, along with the main ones, have additional, special rights and benefits.

Thus, the circle of labor legal relations has quite a lot of participants, each of which has its own legal status.

The legal status of the subject of labor law is the place of the participant in labor relations. It includes:

• legal personality;
• the totality of its rights and obligations arising from the law;
• guarantees of the implementation of status rights and obligations;
• responsibility that each party bears for breach of its duties.

Kinds

All subjects of labor law can be divided into two groups:

Basic

The first group includes the main participants in labor relations, which include the employee and the employer. These parties are also established at the legislative level, in particular Art. 20 Labor Code of the Russian Federation.

According to general rules, citizens who have reached the age of 16 years can be subjects of labor law (according to Article 63 of the Labor Code of the Russian Federation). However there are some exceptions:

1. Upon receipt of basic general education, citizens over 15 years of age can enter into working relationships.
2. Concluding an employment contract is possible from the age of 14, but subject to the following conditions:
   there is written consent to this from the parents, as well as the guardianship and trusteeship authority;
3. future work will not harm the learning process;
4. working conditions are safe for health and easy.

Minor

The second group unites those entities that play a secondary role in the implementation of labor relations.

These include:

• employment authorities;
• social partners - they are associations of workers or employers represented by elected representatives;
• labor control and supervision bodies;
• primary trade union organization or other representative bodies elected by employees;
• bodies that deal with resolving labor disputes.

The main and most important participants in labor relations are the employee and the employer.

All other bodies, which are also designated as subjects of the Russian Federation, were created primarily for the purpose of regulating relations and protecting their rights and interests. Therefore, these subjects should be further considered in more detail.

What applies to labor legal personality?

Labor legal personality consists of:

• legal capacity (i.e. having the right to enter into labor relations);
• legal capacity (the ability of a person to exercise the rights and obligations in question through personal actions);
• tortiousness (the ability of a person to bear responsibility for his or her labor relations).

Each of the participants in labor relations must have labor legal personality, since this is a prerequisite for the emergence of the desired relationship.

The legal personality of organizations is expressed through their competence.

Competence is all the rights and obligations, powers of legal entities that are provided at the legislative level to enable them to implement their tasks.

Next, some subjects of labor relations will be considered.

Contents of the employment contract

The contents of an employment contract are all its terms:

1. direct, stipulated directly by the parties in the written text of the employment contract;
2. derivatives provided for by law, collective agreement, agreements and, by virtue of the conclusion of an employment contract, extending to the parties (on the procedure for transfer, dismissal, labor protection rules, etc.).

The employment contract (Article 57 of the Labor Code of the Russian Federation) specifies:

• identifying information about the employee and employer who entered into an employment contract;
• place and date of conclusion of the employment contract;
• place of work (indicating a separate structural unit and its location);
• labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type of work assigned to the employee);
• start date of work (validity period and circumstances (reasons) that served as the basis for concluding a fixed-term employment contract - Articles 58, 59, 60);
• terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);
• working hours and rest hours (if for a given employee it differs from the general rules in force for a given employer), compensation, nature of work (mobile, traveling, on the road, other nature of work);
• a condition on compulsory social insurance of the employee in accordance with this Code and other federal laws;
• other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

See also Decree of the Government of the Russian Federation dated August 27, 2016 N 858 “On the standard form of an employment contract concluded between an employee and an employer - a small business entity that is classified as a micro-enterprise”

If, when concluding an employment contract, any information and (or) conditions were not included in it, then this is not a basis for recognizing the employment contract as not concluded or for its termination. The employment contract must be supplemented with missing information and (or) conditions. In this case, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by an annex to the employment contract or a separate agreement of the parties, concluded in writing, which are an integral part of the employment contract.

The employment contract may provide for additional conditions that do not worsen the employee’s position in comparison with established labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, in particular:

• about the test;
• on non-disclosure of secrets protected by law (state, official, commercial and other);
• on the employee’s obligation to work after training for no less than the period established by the contract, if the training was carried out at the expense of the employer;
• on the types and conditions of additional employee insurance;
• on improving the social and living conditions of the employee and his family members;
• on clarifying the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms.

According to Article 60 of the Labor Code of the Russian Federation, it is prohibited to require an employee to perform work not stipulated by an employment contract (except for cases provided for by the Labor Code of the Russian Federation and other federal laws).

The terms of an employment contract can only be changed by agreement of the parties in writing.

When concluding employment contracts with a number of certain categories of employees (managers, part-time workers, seasonal workers, etc.), the specifics of their work should be taken into account.

Contract terms that worsen the situation of workers in comparison with labor legislation are invalid.

Citizen (employee)

It should be clarified that the legal status of a citizen is one thing, but the legal status of an employee is completely different. By drawing up an employment agreement, an individual also adds the legal status of an employee to his status as a citizen. All employees have general rights and responsibilities. Certain categories of citizens have special rights.

In Art. 21 of the Labor Code defines the basic rights and responsibilities of an employee.

The employee has the right:

1. Conclude, amend and terminate an employment agreement.
2. Have a workplace organized in accordance with all GOST labor rules, work materials and other tools for work.
3. Receive stipulated wages on time and in full.
4. Rest.
5. Undergo professional retraining and improve your skills.
6. Protect your labor interests in ways not prohibited by law, incl. through strikes.
7. In case of injury to health during work, demand compensation.

The employee is obliged:

1. Comply with the internal rules of the organization where he works, as well as safety precautions during the work itself.
2. Treat other people's property with care.
3. Perform your direct job duties conscientiously.
4. In the event of an emergency, notify your employer.

The legislator, in order to protect the labor rights of citizens, introduced the following norms:

• prohibition on requiring work to be performed that is not expressly specified in the signed employment agreement;
• An employer can transfer to another job only if the employee has given written consent;
• An employer cannot dismiss an employee for the reasons specified in Art. 81-82, 371-372 Labor Code of the Russian Federation;
• For some categories of citizens, the employer must establish a shortened working day or week;
• a ban on forced work on weekends and non-working holidays;
• establishing a minimum wage;
• provision of annual leave, etc.

Subjects of labor relations. Rights and obligations of the employee and employer.

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Subjects of labor law are participants in social relations regulated by labor legislation, who have certain labor rights and responsibilities and have the opportunity to implement them.

For subjects, it is necessary to have working legal capacity and legal capacity, which are united by the concept of legal personality - that is, a characteristic that determines the right of the subject to be a participant in the relationship:

§ labor legal capacity - the ability to have labor rights and obligations recognized by labor legislation;

§ labor capacity - the ability, according to the law, to exercise labor rights and obligations through one’s actions.

The employee has the right:

§ to conclude, amend and terminate an employment contract in the manner and under the conditions established by law;

§ providing him with work stipulated by the employment contract;

§ a workplace that meets the conditions provided for by state standards of organization and labor safety;

§ timely and full payment of wages in accordance with their qualifications, complexity of work, quantity and quality of work performed;

§ rest provided by the establishment of normal working hours;

§ complete reliable information about labor conditions and labor protection requirements in the workplace;

§ professional training, retraining and advanced training;

§ association, including the right to create trade unions and join them to protect their labor rights, freedoms and legitimate interests;

§ protection of your labor rights, freedoms and legitimate interests by all means not prohibited by law;

§ resolution of individual and collective labor disputes, including the right to strike;

§ compensation for harm caused to an employee in connection with the performance of his job duties;

§ compulsory social insurance in cases provided for by federal laws, and others provided for by law.

The employee is obliged:

§ conscientiously perform your labor function;

§ comply with the internal labor regulations of the organization and labor discipline;

§ comply with established labor standards;

§ comply with labor protection and occupational safety requirements;

§ treat the property of the employer and other employees with care;

§ immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the employer’s property, and others provided for by law.

Employer is an individual or legal entity (organization) that has entered into an employment relationship with an employee. In cases established by federal laws, another entity entitled to enter into employment contracts may act as an employer.

The main rights and obligations of the employer are listed in Art. 22 of the Labor Code, and all of them can be divided into several groups.

1. Rights related to the employment contract. One of the main rights of an employer is the right to conclude, amend and terminate employment contracts with employees in accordance with the Labor Code of the Russian Federation and other federal laws.

2. Rights in the field of social partnership. Fundamental employer rights include the right to conduct collective bargaining and enter into collective agreements.

3. Disciplinary rights. The employer has the right to demand from employees the conscientious performance of their labor duties, observing the internal labor regulations of the organization, and careful treatment of the employer’s property.

The employer has the right to reward employees who conscientiously perform their job duties, and to bring violators of labor discipline to disciplinary and financial liability.

4. Rule-making rights. One of the important rights of an employer is to adopt local regulations within its competence. They are mandatory for employees of the organization. For example, internal labor regulations, regulations on bonuses, etc.

5. Responsibilities arising from the labor relationship with the employee. (Directly related to the employee rights stated above.)

The employer is obliged to comply with laws and other regulations governing labor relations, provide all employees with work stipulated by the employment contract, pay employees on time and in full, etc.

It should be especially noted that the employer is obliged to provide employees with equal pay for work of equal value. The establishment of such an obligation ensures the creation, first of all, of a fair remuneration system. This principle is consistent with international wage standards.

6. Responsibilities related to monitoring activities and liability for damage caused.

The employer is obliged to consider submissions from relevant bodies, including representatives elected by employees, about identified violations of laws and other acts containing labor legislation, take measures to eliminate them and be sure to report direct measures to the relevant bodies and representatives.

The employer is obliged to compensate for damage caused to the employee in connection with the performance of his job duties, as well as to compensate for moral damage caused to the employee by the unlawful action or inaction of the employer.

The employer is responsible for damage caused by the employee to third parties in the performance of his job duties (Article 1068 of the Civil Code of the Russian Federation). This employer liability is based on insufficient control on the part of the employer over the activities of its employees.

7. Responsibilities for social insurance. The employer is obliged to provide compulsory social insurance to the employee in the manner established by federal law. The employer is the policyholder, and the policyholder is an organization of any organizational and legal form, as well as citizens obliged, in accordance with federal laws on specific types of compulsory social insurance, to pay insurance premiums (mandatory payments).

The general obligations of the policyholder are determined by the Federal Law “On the Fundamentals of Compulsory Social Insurance”1, as well as other special laws. The main responsibility of the policyholder is to register accordingly and pay insurance premiums on time and in the proper amount.

Employment contract. Types of employment contracts. Contents of the employment contract. Probation.

An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified labor function, to provide working conditions provided for by this Code, laws and other regulatory legal acts, a collective agreement, agreements, local regulations containing labor standards the right to pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function determined by this agreement and to comply with the internal labor regulations in force in the organization.

The parties to the employment contract are the employer and the employee. An employer can be a legal entity or an individual (usually an individual entrepreneur). An employee can be a citizen of at least 16 years of age (employment is permitted to perform light labor in free time from study upon reaching the age of 14 with the consent of parents, adoptive parents, or guardian).

Contents of TD:

The content of the contract refers to its terms, which determine the rights, obligations and responsibilities of the parties. The terms of the employment contract are divided into:

· derivatives (established by current legislation, for example, on wages)

· direct (established by agreement of the parties, for example, on a probationary period).

Derived conditions are divided into essential

(without them an employment contract is impossible) and
additional ones.
Essential conditions include conditions about the place of work, about the employee’s labor function (profession, specialty, qualifications), about the conditions of remuneration, about the type and duration of the employment agreement (contract).

Types of employment contract

Its validity period can be determined as follows:

• For undefined period;
• for a certain period of no more than five years (fixed-term employment contract), unless a different period is established by federal laws.

The main type is a contract for an indefinite period, and it is this that should be concluded in most cases.

A fixed-term employment contract is concluded when the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation (for example, temporary work, seasonal work, commissioning, etc.).

Conclusion, amendment and termination of an employment contract. Removal from work.

The employment contract must indicate:

• personal data of the employee, name of the employer;
• work start date;
• position, specialty, qualifications of the employee or his labor functions;
• obligations and rights of the employer and employee;
• working conditions, benefits and compensation for work under special conditions;
• employee remuneration (tariff rate or official salary), allowances, additional payments, terms of incentive payments;
• types of social insurance, etc.

The employment contract is concluded in writing, in two copies, and signed by the employee and the employer.

The employer is obliged to draw up the contract in writing within three days from the moment of admission to work. It is considered to come into force from the moment it is signed by both parties or the employee is allowed to perform his duties. All conditions noted in the employment contract are binding.

In addition to the above-mentioned clauses that are mandatory for an employment contract, it may also reflect other working conditions, depending on the specific activities of the organization (probationary period, preservation of non-disclosed information, duty to work).

The conclusion of an employment contract is possible both for an indefinite period and for a specific, fixed-term one (no more than five years).

The Labor Code provides a list of documents required by an employee when applying for a job:

• identification documents;
• employment history;
• pension insurance certificate;
• military ID;
• certificate of education or qualifications.

The final stage of drawing up an employment contract is an order (instruction) from the administration about hiring. Its content must comply with all points specified in the employment contract. The order (instruction) must be announced to the employee within three days, against signature.

Types of changes to the employment contract: 1) transfer to another job; 2) movement; 3) suspension from work. Transfer to another job is a change in the job function or a change in the essential terms of the employment contract (place of work, job function, wages, working hours, benefits, etc.), which is permitted only with the written consent of the employee. The transfer can be in the same organization or to another organization, as well as to another location together with the organization. Types of transfers: 1) temporary, arising in connection with: a) production needs; b) the employee’s health status (according to medical prescriptions); c) providing easier work to pregnant women, as well as women with children under 1.5 years of age, if, according to the conditions of their work, they cannot use breaks for feeding; 2) permanent: a) transfer in the same organization (at the initiative of both the employer and the employee); b) transfer to another organization for permanent work; c) transfer to another area together with the organization (an area outside the administrative-territorial boundaries of the corresponding locality). An employee’s refusal to be transferred to another location with the organization is grounds for termination of an employment contract with him. Temporary transfer is possible at the initiative of both the employer and the employee. Relocation - performing work at another workplace, in another structural unit of this organization in the same area, assigning work to another mechanism or unit, if this does not entail a change in the labor function and a change in the essential terms of the employment contract.

Termination of an employment contract

Termination of an employment contract is its termination at the initiative of the employer or employee. The concept of “dismissal” is used in articles of the Labor Code in the presence or absence of the will of one of the parties to terminate the employment relationship.

The grounds for termination of an employment contract may include:

• change of owner or reorganization of the enterprise;
• transfer of an employee to another job due to health reasons;
• violation of the rules established by the employment contract;
• conscription.

When terminating an employment contract at the initiative of an employee, he is obliged to notify the administration of his decision two weeks before stopping work. This time can be reduced if the employee is unable to fulfill his duties within a certain period of time (enrolling in studies), as well as in cases of violation by the employer of the terms of the employment or collective agreement. With the consent of the employer, the employment contract can be terminated before the expiration of the two-week period. The reason for dismissal is indicated as by agreement of the parties.

Termination of an employment contract at the initiative of the administration is possible in the following cases:

• providing an employee with false documents when hiring;
• when a special security clearance is established or the previous one is terminated;
• in cases provided for in the employment contract.

Termination of an employment contract due to violation of the rules during its conclusion is possible in the following cases:

• if the agreement was concluded with a person who does not have the right to engage in this activity;
• if the contract was concluded with a person who is contraindicated, for medical reasons, from performing this work;
• if the employee does not have the appropriate education necessary to perform this work, etc.

If the rules for concluding an employment contract are not the fault of the employee, the administration is obliged to pay him severance pay equal to his monthly salary. The administration's decision to dismiss an employee can be appealed to the labor inspectorate and the judiciary.

Suspension from work is the employer’s refusal to allow an employee to perform his or her job function. However, dismissal does not constitute termination of the employment contract.

The employer is obliged to remove from work (not allow to work) the employee:

1) appeared at work in a state of alcohol, drug or toxic intoxication;

2) who has not undergone training and testing of knowledge and skills in the field of labor protection;

3) has not passed a preliminary or periodic medical examination;

4) due to medical contraindications;

5) according to the requirements of bodies and officials authorized to do so.

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Employer

An employer is an individual or legal entity (organization), as well as the state, that has signed an employment agreement with an employee and organizes conditions for him to work.

The employer can be the following individuals:

• individual entrepreneur;
• notary;
• a lawyer working in a law office;
• persons who hire workers to help with housekeeping.

Such an employer can only be an adult capable person.

An employer - a legal entity - is an organization that has separate property, with which it is responsible for its obligations, and has the legal right to hire workers for the production of products, provision of services or other labor activities.

Unlike a legal entity, an individual is liable for its obligations with personal property.

A legal entity - an employer can have any organizational and legal form, type of activity, but, most importantly, the organization must have legal capacity to work.

The state, represented by its authorities, can also act as an employer.

Employer rights:

1. Sign and terminate employment contracts with employees;
2. Establish internal rules and organization of team work by issuing local regulations;
3. Require employees to fulfill the obligations established by the contract and to preserve property;
4. Bring employees to disciplinary and other liability in accordance with the legislation of the Russian Federation;
5. Protect your interests in court.

The employer is obliged:

1. Comply with the labor legislation of the Russian Federation and the obligations specified in the employment agreement with employees.
2. Provide workers with work, a workplace that meets the requirements of GOST, provide workers with materials and means for their work activities.
3. If the relevant notification is received, enter into negotiations with employee representatives.
4. Timely comply with the instructions of supervisory and regulatory authorities, pay fines imposed for violation of labor regulations.
5. Pay employees wages in the amounts and terms specified in the employment contract.
6. Transfer contributions to the Social Insurance Fund and other legally obligatory payments in the amounts established by current legislation.
7. To organize normal work, adopt local regulations.

On the labor legal status of persons holding government positions in constituent entities of the Russian Federation

UDC 342.9:349.2

Magazine pages: 40-44

S.E. Channov,

Doctor of Law, Professor of the Department of Administrative and Information Law, Moscow State University of Economics, Statistics and Information Russia, Moscow

The labor legal status of persons holding government positions in the constituent entities of the Russian Federation is considered; the possibilities and limits of applying labor legislation to their activities are determined. The general scientific dialectical method, methods of formal logic, as well as the comparative legal method are used. It is established that the current federal legislation does not directly address the issue of extending labor law norms to persons holding government positions in the constituent entities of the Russian Federation; the constituent entities of the Russian Federation use different approaches to solving this issue; it is optimal to apply the norms of labor legislation to the activities of persons holding government positions in the constituent entities of the Russian Federation, subsidiarily; The specificity of the status of persons holding government positions in the constituent entities of the Russian Federation requires the conclusion of contracts, rather than employment agreements, with some of them. Currently, there is a need for more detailed regulation at the federal level of the status of persons holding government positions in the constituent entities of the Russian Federation, including on the issue of the possibilities and limits of applying the norms of labor legislation and legislation on public service to their activities.

Key words: public position, labor legislation, Labor Code, labor relations, legislation on civil service, employment contract, contract.

Public office is a key concept for the entire system of public administration. Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation” determines that government positions in the Russian Federation and government positions in the constituent entities of the Russian Federation include positions established by the Constitution of the Russian Federation, federal laws for the direct execution of the powers of federal government bodies, and positions established by the constitutions (charters), laws of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies of the constituent entities of the Russian Federation.

One of the unresolved issues related to the activities of persons holding government positions in the constituent entities of the Russian Federation is the question of the applicability of labor legislation to it.

Article 11 of the Labor Code of the Russian Federation contains a list of persons to whom labor legislation and other acts containing labor law norms do not apply:

“military personnel in the performance of military service duties;

members of boards of directors (supervisory boards) of organizations (except for persons who have entered into an employment contract with this organization);

persons working on the basis of civil contracts;

other persons, if this is established by federal law.”

On the one hand, this list does not include persons holding government positions, therefore, in principle, the extension of labor legislation to them is possible. On the other hand, unlike, for example, state civil and municipal employees, Art. 11 of the Labor Code of the Russian Federation does not directly speak about such distribution.

In accordance with Art. 15 of the Labor Code of the Russian Federation, labor relations are “relations based on an agreement between the employee and the employer on the personal performance by the employee for payment of a labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee), subordination of the employee rules of internal labor regulations when the employer provides working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, employment contracts.”

As you can see, labor relations are characterized by certain features, which, however, are well known to labor law science: the contractual nature of the relationship, personal performance of a labor function for pay, the presence of the employee’s subordination to the employer, etc. If we apply these features to the official activities of persons holding government positions in the Russian Federation, It can be stated that these characteristics are not fundamentally applicable to all types of labor relations.

For example, in no way, from our point of view, can any relationship arising in connection with the activities of a deputy of a legislative (representative) body of state power of a constituent entity of the Russian Federation be qualified as labor relations, even if this activity is carried out on an ongoing basis. This is due to the fact that the funds paid to such a deputy are monetary support, and not payment for performing a labor function; there is no hierarchical subordination of the deputy to anyone (including the chairman of the legislative body), etc.1 [10].

Official activity in such government positions of the constituent entities of the Russian Federation as, for example, first deputy, deputy senior official (head of the highest executive body of state power) of the constituent entity of the Russian Federation, member of the highest executive body of state power of the constituent entity of the Russian Federation is noticeably closer to labor (although for a number of reasons the legal status of these officials is still not identical to the legal status of an ordinary employee). Service in some government positions introduced in certain subjects is even more similar to labor (as well as public service) activities, for example, in the place of heads of the department of the Voronezh region, representative office of the Voronezh region, administration of the Voronezh region, inspection of the Voronezh region, department of the Voronezh region (st. 2 of the Law of the Voronezh Region dated November 11, 2009 No. 133-OZ “On public positions in the Voronezh Region” [1]).

Typically, in the legislation of the constituent entities of the Russian Federation themselves, one can find different approaches to solving the problem of applying labor legislation to the official activities of persons holding public positions. At the same time, most of the laws of the constituent entities of the Russian Federation simply ignore this issue. An obvious example here could be the Law of the Saratov Region dated March 30, 2007 No. 51-ZSO “On public positions in the Saratov Region” [2], Art. 3 “The legal basis for the activities of persons holding public positions in the Saratov Region” contains the following norm: “The legal basis for the activities of persons holding public positions in the Saratov Region is the Constitution of the Russian Federation, federal laws, the Charter (Basic Law) of the Saratov Region, this Law, other laws Saratov region and other regulatory legal acts of the Russian Federation and the Saratov region." As you can see, the Labor Code of the Russian Federation and labor legislation in general are not listed in this list, but they may well be classified as other regulatory legal acts of the Russian Federation. Essentially similar provisions are also contained in legislative acts on government positions in Moscow, the republics of Bashkortostan, Tatarstan, Dagestan, Kamchatka Territory, Leningrad Region, etc.

But, for example, part 2 of Art. 3 of the Law of the Krasnodar Territory dated November 6, 2009 No. 1855-KZ “On the status of persons holding public positions in the Krasnodar Territory in the executive bodies of state power of the Krasnodar Territory” (hereinafter referred to as Law No. 1855-KZ) [9] establishes: “to legal relations related to when filling government positions, to the extent not regulated by this Law, the norms of labor legislation are applied.” Also in accordance with Part 2 of Art. 3 of the Law of the Tambov Region dated July 1, 2011 No. 18-Z “On the legal status of persons holding public positions in the Tambov Region” [5] “labor relations of persons holding public positions in the Tambov Region, insofar as they are not regulated by federal laws and the Charter of the Region , this Law and other laws of the region, are regulated by labor legislation.”

Interesting provisions regarding the regulation of the activities of persons holding public positions are contained in the Law of the Arkhangelsk Region dated May 20, 2009 No. 30-3-OZ “On the status of persons holding public positions of the Arkhangelsk Region in the executive bodies of state power of the Arkhangelsk Region” (hereinafter referred to as Law No. 30 -3-OZ) [8]. Part 2 Art. 3 of this normative act clearly states that “relations related to the filling of public positions are not service or labor relations.” At the same time, the same article of Law No. 30-3-OZ allows for the application of service and labor legislation to persons holding government positions in the Arkhangelsk region. In particular, in accordance with Part 3, “in cases where relations related to the filling of public positions are not directly regulated by this law, the legislation of the Russian Federation on the state civil service of the Russian Federation applies to such relations, with the exception of the provisions governing:

1) qualification requirements for positions in the state civil service of the Russian Federation;

2) class ranks of the state civil service of the Russian Federation, the procedure for their assignment and retention, conducting a qualification exam;

3) basic rights and basic responsibilities of state civil servants of the Russian Federation, restrictions and prohibitions related to the state civil service of the Russian Federation;

4) conducting certification of state civil servants of the Russian Federation;

5) entry into the state civil service of the Russian Federation and filling a position in the state civil service of the Russian Federation, conclusion, change of essential conditions, suspension and termination of a service contract;

6) approval of job regulations;

7) remuneration of a state civil servant of the Russian Federation;

conducting an internal audit;

9) additional professional education of state civil servants of the Russian Federation, formation of a personnel reserve in the state civil service of the Russian Federation;

10) other provisions that do not correspond to the essence of relations related to the filling of public positions.”

In accordance with Part 4 of Art. 3 of Law No. 30-3-OZ “in cases where relations related to the filling of public positions are not directly regulated by this law and the legislation of the Russian Federation on the state civil service of the Russian Federation, federal laws and other regulatory legal acts of the Russian Federation apply to such relations , regional laws and other regulatory legal acts of the Arkhangelsk region containing labor law norms, if this does not contradict the essence of relations related to the filling of government positions.”

We have given here such a complete quotation of legislative provisions for the reason that the solution used in the law of the Arkhangelsk region seems to us methodologically the most correct and practically the most justified. Indeed, service in government positions is deliberately separated by the federal legislator from public service. Also, despite the presence in some cases of some common features, it should not be considered as work activity in the classical form.

However, in practice, there is often a need to resolve issues related to certain aspects of service in government positions that are not regulated in the legislation of the constituent entities of the Russian Federation. In this case, the application of the norms of both labor and service legislation on the basis of the analogy of the law seems to us to be completely justified.

Such an application should, in our opinion, be carried out precisely by analogy, when this is forced by the presence of a gap in the constitutional, legal and administrative legal regulation of the official activities of these persons. For this reason, we see it as somewhat incorrect to conclude employment contracts with persons holding government positions in the constituent entities of the Russian Federation. Meanwhile, this practice occurs. For example, Law No. 1855-KZ establishes that persons holding public positions carry out professional official activities on the basis of a legal act on appointment to a public position and an employment contract (Part 3 of Article 7). In accordance with the Decree of the Government of the Udmurt Republic dated August 15, 2005 No. 124 “On concluding employment contracts and service contracts with persons holding public positions of the Udmurt Republic and certain positions of the state civil service of the Udmurt Republic” [4] labor contracts with the Chairman of the Government of the Udmurt Republic, deputies The Chairman of the Government of the Udmurt Republic, the Deputy Chairman of the Government of the Udmurt Republic - the ministers of the Udmurt Republic, the permanent representative of the President of the Udmurt Republic to the President of the Russian Federation - the Deputy Chairman of the Government of the Udmurt Republic, the Head of the Administration of the President and the Government of the Udmurt Republic is concluded by the Government of the Udmurt Republic represented by the President of the Udmurt Republic. Labor contracts with other members of the Government of the Udmurt Republic are concluded by the Government of the Udmurt Republic represented by the Chairman of the Government of the Udmurt Republic.

The conclusion of employment contracts with persons holding government positions directly brings them into the scope of the Labor Code of the Russian Federation, which follows from Art. 16 Labor Code of the Russian Federation. Meanwhile, the legal status of persons holding government positions does not in all cases allow them to be reduced to the status of ordinary employees. It is worth recalling that Art. 5 of the Labor Code of the Russian Federation establishes its priority over all other acts containing labor law norms, including laws of the constituent entities of the Russian Federation and by-laws. The exercise of powers by persons holding public positions in the constituent entities of the Russian Federation on the basis of employment contracts can, in practice, give rise to complex questions about the relationship between the Labor Code of the Russian Federation and the regulatory acts of the constituent entities of the Russian Federation regulating their status, since these documents do not contain a clear indication of the constitutional, legal, administrative, legal, labor law or other affiliation of the norms contained therein.

In this regard, it seems to us that the most correct conclusion is that with persons holding government positions in the constituent entities of the Russian Federation, it is not employment agreements, but contracts. Such contracts are concluded, for example, with persons holding government positions in the Republic of Bashkortostan [7], the Republic of Mari El [3], and the Omsk Region [6]. They help, on the one hand, to individualize the conditions for serving in government positions in the constituent entities of the Russian Federation and resolve issues that are not regulated by law, and on the other hand, not to equate these persons with ordinary employees. This, in turn, makes it possible to clearly determine the priority of constitutional, legal and administrative-legal regulation of their status, without excluding at the same time the application of labor legislation to them by analogy.

In general, from our point of view, there is an objective need for more detailed regulation of the legal status of persons holding government positions in the constituent entities of the Russian Federation at the federal level. The basis for such regulation may well be the Federal Law of October 6, 1999 No. 184-FZ “On the general principles of organization of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation,” although the adoption of a separate legislative act is also possible. At the federal level, the basic approaches to serving in government positions in the constituent entities of the Russian Federation should be established (including depending on the filling of positions on a permanent and non-permanent basis), guarantees for the activities of such persons and restrictions on their rights should be established, the possibilities and limits of application to them should be determined. activities of labor legislation and legislation on civil service. All this would not at all prevent the legislative regulation of service in public positions by the constituent entities of the Russian Federation themselves, but would place it within a unified legislative framework.

Bibliography

1. On public positions in the Voronezh region: law of the Voronezh region dated November 11, 2009 No. 133-OZ // Collection of legislation of the Voronezh region. 2010. No. 11. Art. 491.

2. On public positions in the Saratov region: Law of the Saratov region dated March 30, 2007 No. 51-ZSO // Saratov regional newspaper. 2007. No. 57 (1831).

3. On the conclusion of service contracts with persons holding public positions in the executive authorities of the Republic of Mari El, and the approximate form of a service contract: Decree of the President of the Republic of Mari El dated June 25, 2007 No. 101 (as amended on June 20, 2013) // Collection of Legislation of the Republic Mari El Republic. 2007. No. 7. Art. 339.

4. On the conclusion of employment agreements and labor contracts with persons holding positions of the Udmurt Republic and certain positions of the state civil service of the Udmurt Republic: Decree of the Government of the Udmurt Republic dated August 15, 2005 No. 124 // Collection of legislation of the Udmurt Republic. 2005. No. 7.

5. On the legal status of persons holding public positions in the Tambov region: Law of the Tambov Region dated July 1, 2011 No. 18-Z (as amended on May 5, 2014) (adopted by Resolution of the Tambov Regional Duma dated June 24, 2011 No. 95) // Tambov Life (special issue). 2011. No. 88 (1170).

6. On the approximate form of a contract concluded with a person holding a public position in the Omsk region: decree of the Governor of the Omsk region dated September 28, 2007 No. 111 // Collection of legal acts of executive authorities of the Omsk region. 2007. No. 4 (23). Art. 18.

7. On the approximate form of a contract concluded with a person holding a public position of the Republic of Bashkortostan: Decree of the President of the Republic of Bashkortostan dated July 21, 2009 No. UP-461 // Gazette of the State Assembly - Kurultai, President and Government of the Republic of Bashkortostan. 2009. No. 17(311). Art. 1136 (published without attachments).

8. On the status of persons holding public positions in the Arkhangelsk region in the executive bodies of state power of the Arkhangelsk region: law of the Arkhangelsk region dated 05.20.2009 No. 30-3-OZ (as amended on 05.30.2014) (adopted by the Arkhangelsk Regional Assembly of Deputies on 05.20.2009) // Gazette of the Arkhangelsk Regional Assembly of Deputies of the fifth convocation. 2009. No. 3.

9. On the status of persons holding public positions in the Krasnodar Territory in the executive bodies of state power of the Krasnodar Territory: Law of the Krasnodar Territory dated November 6, 2009 No. 1855-KZ (as amended on October 3, 2014) (adopted by the Legislative Assembly of the Krasnodar Territory on October 21, 2009) // Information Bulletin Legislative Assembly of the Krasnodar Territory. 2009. No. 24.

10. Channov S.E. Controversial issues of regulating the labor of elected officials of local self-government // Constitutional and municipal law. 2012. No. 3. P. 54-59.

Trade union as a subject of labor law

A trade union is a voluntary association of citizens created to protect their labor interests.

From the moment of its notification registration with the Ministry of Justice, the trade union becomes a subject of labor law. The law defines the legal status of trade unions, the direction of their work, functions, rights, as well as guarantees for the implementation of all these rights.

Trade union rights:

1. At all levels of legal regulation, advocate and protect in the interests of workers.
2. Assist in employment and employment of the population.
3. Take part in collective negotiations and sign collective agreements.
4. Monitor compliance with labor laws, even to the point of demanding the dismissal of officials for violating them.
5. Take part in encouraging employees: they decide on the distribution of housing, entering a name in the book of honor, etc.
6. Manage sanatoriums, sports centers, clubs, holiday homes and other cultural institutions.
7. Have your own trade union property.
8. Cooperate with trade unions of other countries, join international organizations.

The peculiarity of this participant in labor law is that the law does not impose legal obligations on it.

Civil servants as subjects of administrative law

3

An employee is a person associated with the apparatus (body) for managing service relations, i.e. a person who provides his personal professional or technical services for a fee (salary) for the implementation of the functions assigned to him by the management apparatus. Service relations are associated with a certain type of social activity - management activity, which is carried out both in the state and non-state spheres (municipal service, service in the paid apparatus of commercial and non-profit organizations) Alekhin A.P., Karmolitsky A.A. Administrative law of the Russian Federation. M.: Mirror 2005. P. 386.

.

In Part 4 of Art. 32 of the Constitution of the Russian Federation specifically highlights the civil service as an important institution for the direct participation of citizens in the management of state affairs. Civil service is understood as professional activity to ensure the implementation of the powers of government bodies. The public service in the Russian Federation includes: the federal public service, which is under the jurisdiction of the Russian Federation, and the public service of the constituent entities of the Russian Federation, which is under their jurisdiction.

The administrative legal personality of a civil servant arises from the moment he fills (occupies) a certain position. The status of the position determines the scope of the employee’s legal personality and his social and legal status. A position is a primary social-organizational structural unit of a state body or institution that determines the official place and role of the person replacing it, the set of his rights and responsibilities, as well as requirements for professional training. Ibid. P. 389..

The emergence, change and termination of civil service relations are carried out in accordance with current legal regulations, which are of a state and administrative legal nature and at the same time relate to labor law. Therefore, the basis of these relationships is appointment or competition.

In accordance with Part 4 of Art. 32 of the Constitution, Russian citizens have equal access to public service. This constitutional provision corresponds to paragraph “c” of Art. 25 of the International Covenant on Civil and Political Rights of December 16, 1966, according to which every citizen must, without any discrimination and without unreasonable restrictions, be admitted in his country on general conditions of equality to public service. The principle of equal access to public service means the equal right of citizens to occupy any public position in accordance with their abilities and professional training, without any discrimination.

The main legislative acts regulating the right of citizens to public service in the Russian Federation are: Federal Law “On the Fundamentals of the Public Service of the Russian Federation” dated July 31, 1995, Regulations on the Federal Public Service dated December 22, 1993. Important for the implementation of Part. 4 tbsp. 32 of the Constitution have Decrees of the President of the Russian Federation “On public positions of the Russian Federation” and “On the Register of public positions of federal civil servants” dated January 11, 1995 (with subsequent amendments and additions).

Citizens of the Russian Federation who are not younger than 18, but not older than 60, who speak the state language, have a professional education and meet the requirements established by law for civil servants have the right to enter the civil service.

When entering the civil service, as well as during its passage, it is not allowed to establish any direct or indirect restrictions or advantages depending on gender, race, nationality, language, origin, property and official status, place of residence, presence or absence of citizenship subjects of the Russian Federation, attitude to religion, beliefs, membership in public associations created in the manner prescribed by the Russian Constitution and federal law, as well as other circumstances for citizens whose professional preparedness meets the requirements for the relevant position.

The constitutional principle of equal access of citizens of the Russian Federation to the public service does not exclude restrictions on entering this service or occupying specific government positions. Restrictions are established by the Federal Law “On the Fundamentals of the Civil Service of the Russian Federation” (clause 3 of Article 21), and the Regulations on the Federal Public Service (clause 21).

A citizen cannot be accepted into the civil service and remain in the public service in the following cases: he is declared incompetent or partially competent by a court decision that has entered into legal force; deprivation of his right to hold public positions in the civil service for a certain period of time by a court decision that has entered into legal force; the presence of a disease confirmed by the conclusion of a medical institution that prevents him from performing his official duties; refusal to undergo the procedure for obtaining access to information constituting state and other secrets protected by law, if the performance of official duties for a public position in the civil service for which the citizen is applying is related to the use of such information; close relationship or relationship (parents, spouses, brothers, sisters, sons, daughters, as well as brothers, sisters, parents and children of spouses) with a civil servant, if their public service is related to the direct subordination or control of one of them to the other; having citizenship of a foreign state, except in cases where access to public service is regulated on a reciprocal basis by interstate agreements; refusal to provide information about income received and property owned by right of ownership, provided for in Art. 12 of the Federal Law “On the Fundamentals of the Civil Service of the Russian Federation”.

The civil service institution consists of public positions held by civil servants. Outside of government positions, civil service does not exist.

Public positions are positions in federal, regional and other state bodies established by the Constitution, federal laws, constitutions and charters of the constituent entities of the Russian Federation with a certain range of responsibilities for the execution and provision of the powers of this state body.

All public positions in the Law “On the Fundamentals of the Civil Service of the Russian Federation” are divided into categories “A”, “B” and “C”. Category “A” is the positions of the Russian Federation and its subjects directly provided for by the Constitution of the Russian Federation, federal laws, constitutions and charters of the subjects of the Federation. An open list of such positions is given in the Law itself (Article 1). Public positions of category “B” are positions established to directly ensure the execution of the powers of persons holding positions of category “A”. And finally, positions of category “B” are positions established by the state bodies themselves, as stated in the Law, to ensure their powers, and in essence to ensure and execute positions of category “B”.

In accordance with paragraph 1 of Art. 2 of the Law, the civil service refers only to the performance of official duties by persons holding public positions of categories “B” and “C”. At the same time, civil service in public positions of category “B” is limited to the period for which the corresponding persons filling positions of category “A” are appointed or elected.

Thus, persons holding positions in category “A”, within the meaning of the Law, are not civil servants and its effect does not apply to them. These persons are the President of the Russian Federation, the Chairman of the Government of the Russian Federation, chairmen of the chambers of the Federal Assembly, heads of legislative and executive authorities of the constituent entities of the Russian Federation, deputies, ministers, judges, etc. Persons holding positions in category “B” are temporary civil servants - in during the period for which persons from category “A” are elected or appointed.

The rights and obligations of civil servants are determined by the above Law. Along with the most general responsibilities of employees provided for by the norms of labor legislation, special responsibilities are additionally established for civil servants: to ensure support for the constitutional order and compliance with the Constitution of the Russian Federation, the implementation of federal laws and laws of the constituent entities of the Federation; conscientiously perform official duties; carry out orders, instructions and instructions from superiors in the order of subordination of managers; maintain a level of qualifications sufficient to perform their official duties; ensure compliance and protection of the rights and legitimate interests of citizens, timely consider their appeals and make decisions in the manner established by law. The specific responsibilities of civil servants for relevant public positions are determined by job regulations and instructions.

Civil servants exercise the rights granted to them within the limits established by their position. The fundamental rights of civil servants include decision-making and participation in their preparation in accordance with their official duties. Among other fundamental rights, which were first normatively enshrined, the right to: familiarization with documents defining the rights and responsibilities of a civil servant for his public position should be highlighted; obtaining information and materials necessary to perform official duties; visiting, in accordance with the established procedure, to perform official duties, enterprises, institutions and organizations, regardless of their form of ownership; promotion, increase in salary taking into account work results, skill level, etc.

It is fundamental to enshrine in the Federal Law (Article 11) the restrictions associated with public service. Government employees are prohibited from engaging in other paid activities. This means that a civil servant does not have the right to hold another position (be a part-time worker) or perform other paid work under the terms of an employment agreement or contract in government agencies, local governments, enterprises, institutions, organizations and public associations. The prohibition is unconditional and is not related to the control, accountability of a state body, enterprise, organization or otherwise with the competence of the state body in which the civil servant is in the public service. The prohibition to engage in other paid activities is a legal expression of the requirement that a civil servant must devote all of his working time to official activities.

A ban on a civil servant holding another position means at the same time a ban on being a deputy of the legislative (representative) bodies of the Russian Federation, legislative (representative) bodies of the constituent entities of the Federation, and local government bodies.

The federal law (clause 1, article 11) provides only one exception to this rule: civil servants are allowed to engage in teaching, scientific and other creative activities. However, receiving fees for publications and speeches in the course of official activities as a civil servant is prohibited (clause 7 of Article 11), even if these publications are of a scientific, pedagogical or creative nature. Because in fact this would mean “combining” with paid activities, which is prohibited by law.

The Federal Law (clauses 3, 4, 5 of Article 11) for the first time provides a detailed formula for prohibiting all categories of civil servants of the Russian Federation (federal and constituent entities of the Federation) from engaging in entrepreneurial activities. In the context of the Law, entrepreneurial activity is understood as any independent initiative activity carried out on an ongoing basis, both through personal performance of work and by investing in enterprises in the forms provided for by law, aimed at generating personal income.

A civil servant is organically connected with the state. This leads to specific requirements for civil servants: not to take part in strikes (as well as in other actions that disrupt the functioning of government bodies); not to accept awards, honorary and special titles from foreign states, international and foreign organizations without the permission of the President of the Russian Federation.

Civil servants are obliged to keep state and other secrets protected by law. The Federal Law does not define whether this requirement extends to the duration of service or remains for a certain time after the termination of the public service relationship.

State secrets are understood as the most important information provided for in special lists, the disclosure of which constitutes a criminal offense in the form of treason.

Other secrets protected by law mean official and professional secrets. Official secrets are formed by information contained in official regulations, the disclosure of which is not subject to criminal sanctions, but a disciplinary sanction may be applied.

The content of professional secrets is determined in the legislation regulating the relevant types of activities. Thus, employees of the Federal Tax and Duty Inspectorate are obliged to maintain secrecy regarding the materials at their disposal, even if this information is sometimes well known.

Administrative responsibility of civil servants arises in accordance with Art. 2.4. and 2.5. Code of Administrative Offenses of the Russian Federation for committing an administrative offense related to official activities.

The current stage of state building and the formation of civil society in Russia is directly related to the solution of strategic issues of organization and legal support for institutions of state and municipal service.

Among the tasks that are expected to be solved in the process of the administrative reform ongoing in the country, reform of the civil service occupies a special place. The goal of the reform is to radically increase the efficiency of the public service in the interests of developing civil society and strengthening the state, creating an integral system of public service, taking into account historical, cultural, national and other characteristics Chikanova L.A. Legal regulation of official relations in the state civil service: issues of theory and practice.// Journal of Russian Law. 2005. No. 4..

2. State management of the economic sphere in the Russian Federation

The destruction of the USSR, the change in socio-economic and political systems in Russia, and the criminal redistribution of property sharpened attention to the problems of the economic role of the state, in particular, public administration. The most important areas of state activity are the development of the national economy as a whole, ensuring a balance of national and local socio-economic processes in a market economy, creating conditions for effective entrepreneurship, regulating inter-industry proportions, etc.

State management of the economy is necessary for the implementation of social policy, in general, the strategy of socialization in a broad sense. Collective consumption or meeting public needs (health care, education, support for the poor, etc.) is impossible without the use of government levers and organizations. Government regulation is thus determined by the emergence of new economic needs that the market by its nature cannot cope with. And, although such regulation in a modern market economy is carried out on a much smaller scale than in an administrative-command system, the economic role of the state here is still great, especially compared to a system of free competition.

State management of the economy in a market economy is a system of standard measures of a legislative, executive and supervisory nature carried out by authorized government agencies.

Public management of the economy has common features that characterize the process of public administration. The process of public administration has as its content the activities of subjects of administrative law, which is carried out through certain administrative legal forms, procedures and methods. An administrative legal form is a legal expression of specific actions and decisions of public administration bodies and other subjects of administrative law in the process of implementing executive and administrative activities. It represents legally significant ways for subjects of administrative law to exercise their powers, rights and obligations, reflecting the peculiarities of their legal status.

To exercise their powers in the process of public administration, executive authorities use such basic administrative and legal forms as Tikhomirov Yu.A. Administrative law and process. M, 2005. P. 78.:

· publication of administrative legal acts (legal acts of management);

· conclusion of agreements (for example, administrative agreements, international agreements);

· performing other legally significant actions that cause certain legal consequences (drawing reports, registering facts, issuing a certificate of employment, drawing up administrative protocols, etc.). Along with these legal forms of exercising executive power, there are also non-legal forms in the form of organizational actions and material and technical operations (information, instruction, holding meetings, consultations, etc.).

There are legal and non-legal forms of government.

In legal forms, the state-imperious, executive-administrative nature of the powers of governing bodies and their officials is clearly manifested.

Non-legal forms are not associated with the publication of legal acts and the commission of other legal actions and do not give rise to, but terminate, administrative relations.

The adoption and execution of administrative legal acts is one of the main forms of implementation of executive power. In the process of public administration, there is a need to specify the norms of laws, which is carried out through the issuance of administrative acts. In the process of public administration, they serve to establish legal norms or to resolve individual legal situations through the application of legal norms.

An administrative-legal act is an official legal decision based on the law of an authorized subject of executive-administrative activity, adopted unilaterally in a volitional manner in compliance with a certain form and procedure and aimed at establishing administrative-legal norms or at the emergence, change or termination of administrative-legal relations in order to implement management tasks and functions of the executive branch.

Each administrative act has its own content and form. The content of an administrative act includes three main elements:

· expression of the will of the authorized body, which should not go beyond its competence (this expression of will must be free, i.e. not formed under the influence of deception, delusion or coercion);

· the legal essence of this expression of will (assign, establish, permit, grant, revoke, deprive, punish, etc.);

· conditions, obligations and instructions accompanying the main decision. The form of an administrative act is the external expression of the will contained in it, the motives and purposes of its adoption. This form can be presented in the form of decrees, resolutions, orders, orders, instructions, instructions, regulations, etc.

According to their legal properties, administrative acts are divided into normative, individual and mixed. According to the method of expressing will, they are divided into written, oral and symbolic or conclusive (gestures, signals, signs). Depending on the order of adoption, they can be collegial or individual.

The administrative-legal method is a method, a technique for implementing the functions of the executive branch in the process of public administration. The most universal methods used in the management process are persuasion, encouragement and coercion. Persuasion is manifested in the use of various explanatory, educational, and organizational measures to shape the will of the subject or transform it. Encouragement is a method of influence that, through interest and consciousness, directs the will of people to do things that are useful from the point of view of the encourager.

Coercion consists in the application by subjects of executive power of coercive measures established by administrative legal norms in relation to subjects of administrative law. It is implemented through the adoption of certain measures, which are traditionally divided into three groups.

Public administration in the economic sphere is carried out as follows:

Industry management.

1) General management: Government of the Russian Federation (Industrial Department and Department of Defense Industries).

2) Intersectoral leadership: Ministry of Economy, Ministry of State Property, Ministry of Antimonopoly Policy.

3) Direct management: ministries of fuel and energy, atomic energy, agriculture and food, etc.

4) Supervision: Federal Mining and Industrial Supervision, Federal Supervision of Nuclear and Radiation Safety.

Agricultural management.

1) General management: Government of the Russian Federation (Department of Agro-Industrial Complex and Consumer Market).

2) Direct management: Ministry of Agriculture and Food. It includes: Department of Veterinary Medicine, Protection and Rational Use of Hunting Resources, etc.

3) Supervision: State Grain Inspectorate under the Government, state inspections under the Ministry of Agriculture and Food, etc.

Communication management.

1) General management: Government of the Russian Federation (Department of Transport and Communications).

2) Direct management: State Committee for Communications and Information. It consists of: Federal Postal Administration; Federal Service for Regulation of Natural Monopolies in the Field of Communications.

3) Supervision: Main Directorate of State Supervision of Communications under the Ministry of Communications.

Management of the transport and road complex.

1) General management: Government of the Russian Federation (Department of Transport and Communications).

2) Direct management: Ministry of Railways (railway transport); Ministry of transportation. It includes: departments of air, sea, river, road transport, road transport, transport system development; Interdepartmental Commission on the Use of Airspace and Air Traffic Control and others; Federal Service for Regulation of Natural Monopolies in Transport.

3) Supervision: State Automobile Inspectorate of the Ministry of Internal Affairs of the Russian Federation, transport supervisory authorities, etc.

Construction and housing and communal services management.

1) General management: Government of the Russian Federation (Department of Investments and Construction).

2) Direct management: State Committee for Housing and Construction Policy; Federal Service for Special Construction.

3) Supervision: State Housing Inspectorate under the State Committee.

Finance and credit management.

1) General management: Government of the Russian Federation (Department of Finance, Budget and Monetary Circulation).

2) Direct management: Ministry of Finance. It consists of: Federal Treasury; Central Bank, Vnesheconombank, Federal Tax and Duty Inspectorate.

3) Financial control: the same bodies.

An element of managing foreign economic relations is the customs system, which includes customs authorities and customs legislation.

Trade management.

1) General guidance; Government of the Russian Federation (Department of Agro-Industrial Complex and Consumer Market).

2) Direct management: Ministry of Foreign Economic Relations and Trade.

3) Supervision: State inspections for trade, quality of goods and consumer protection under the Ministry of Foreign Economic Relations and the Ministry of Trade.

Customs.

In the Russian Federation, the system of customs authorities includes:

1. The State Customs Committee (SCC) is the central body of the federal executive power that directly manages customs affairs.

2. Regional customs departments that manage customs houses located on the territory of a certain region of the Russian Federation (there are 17 of them in total).

3. Local customs authorities:

customs (154),

customs posts (510).

State management of foreign economic activity covers control and regulatory financial and incentive measures. The basis of the customs tariff method is the mechanism for applying customs duties.

A special type of public management of the economic sphere is management of the public sector of the economy. The specificity of state and municipal enterprises as subjects of civil law is that their property is respectively in state or municipal ownership and belongs to such an enterprise with the right of economic management or operational management (clause 1 of Article 113 of the Civil Code). Therefore, they are the only type of commercial legal entities that do not have the right of ownership to the property they own, but a secondary property right.

State and municipal enterprises are unitary, and their property is indivisible and cannot be distributed among deposits. Thus, a state (municipal) enterprise is a legal entity established by the state or local government for business purposes or for the purpose of producing particularly important goods (production of work or provision of services), the property of which is state (municipal) property.

Currently, the legal status of state and municipal enterprises is determined by the Civil Code, as well as a number of special regulations adopted regarding certain types of these legal entities. Currently, the Federal Law “On State and Municipal Unitary Enterprises” dated October 30, 2002 has been adopted.

The legal basis for the management of a state unitary enterprise is discussed in Art. 21 of the Law “On State and Municipal Unitary Enterprises”. The head of a unitary enterprise (director, general director) is the sole executive body of the unitary enterprise. The head of a unitary enterprise is appointed by the owner of the property of the unitary enterprise. The head of a unitary enterprise is accountable to the owner of the property of the unitary enterprise.

At the same time, the system of management bodies of a state enterprise cannot be based only on one, albeit very important, level of management of the manager. Here it is necessary to highlight the role of the general meeting of employees of a state-owned enterprise and, as practice shows, the importance and place in the enterprise management system of the advisory body - the State-Owned Enterprise Council, on which the fulfillment of the strategic and national interests of the state no less depends. The legal status of these governing bodies is not regulated by federal legislation. According to lawyers, it is necessary to develop a coherent system of legal regulation of the management process of state unitary enterprises Tikhomirov Yu.A. Administrative law and process. M, 2005. P. 84.

. At the same time, it is necessary to focus on the long-term development of the Russian economy, which should be served by the results of the process of transforming the state into an effective owner.

3. Problem

Check out Art. 14.23 of the Code of the Russian Federation on Administrative Offences. Determine the elements of an administrative offense, the list of officials authorized to initiate proceedings for this offense. Which bodies (officials) are authorized to consider this case? What administrative punishment should be applied to the offender?

Here is the text of the article. 14.23 Code of Administrative Offenses:

“Article 14.23. Carrying out activities related to the management of a legal entity by a disqualified person.

1. Carrying out activities related to managing a legal entity by a disqualified person during the period of disqualification -

shall entail the imposition of an administrative fine in the amount of fifty times the minimum wage.

2. Conclusion of an agreement (contract) with a disqualified person for the management of a legal entity, as well as non-application of the consequences of its termination -

shall entail the imposition of an administrative fine on a legal entity in the amount of up to one thousand times the minimum wage.”

To determine the composition of this administrative offense, we will consider whether it meets the definition of an administrative offense.

The definition of an administrative offense is given in Art. 2.1 Code of Administrative Offences. According to this article, “an administrative offense is an unlawful, guilty action (inaction) of an individual or legal entity for which administrative liability is established by this Code or the laws of the constituent entities of the Russian Federation on administrative offenses.”

In this case, according to the disposition of this article, an individual takes action to manage a legal entity (Part 1) or to conclude a contract for the management of a legal entity (Part 2). This action is guilty because the person managing the legal entity does not have the right to do so due to disqualification. Disqualification is one of the types of administrative penalties (Article 3.2 of the Administrative Code). Issues of disqualification are regulated by Art. 3.11 Code of Administrative Offences. Disqualification consists of depriving an individual of the right to occupy leadership positions in the executive management body of a legal entity, to join the board of directors (supervisory board), to carry out entrepreneurial activities to manage a legal entity, as well as to manage a legal entity in other cases provided for by the legislation of the Russian Federation. An administrative penalty in the form of disqualification is imposed by a judge. Disqualification is established for a period of six months to three years. And finally, administrative liability is established for this act by the considered article of the Code of Administrative Offences.

All of the above are elements of this administrative offense.

A case of an administrative offense is initiated on the basis of Article 28.1 of the Code of Administrative Offenses. According to this article, the reason for initiating a case for this administrative offense is:

direct discovery by officials authorized to draw up protocols on administrative offenses of sufficient data indicating the existence of an administrative offense event;

materials received from law enforcement agencies, as well as from other state bodies, local government bodies, and public associations containing data indicating the presence of an administrative offense event;

messages and statements of the owner of the property of a unitary enterprise, management bodies of a legal entity, an arbitration manager, and when considering a bankruptcy case - a meeting (committee) of creditors.

The case is considered initiated from the moment the protocol is drawn up. Article 28.3 states that protocols on this administrative offense are authorized to be drawn up by officials of bodies authorized in the field of bankruptcy and financial recovery. Therefore, these officials are authorized to initiate proceedings for this offense. According to Part 1 of Art. 23.1 of the Code of Administrative Offences, cases of administrative offenses committed under Art. 14.23 considered by the judges.

Administrative penalties for this offense are provided for in Article 14.23 itself. Part 1 of this article establishes the imposition of an administrative fine in the amount of fifty times the minimum wage. Part 2 of the same article varies the amount of the fine imposed on a legal entity in the amount of up to one thousand minimum wages. The exact amount of the fine is established by the court depending on the circumstances of the case.

LIST OF SOURCES USED

1. Constitution of the Russian Federation.

2. Code of the Russian Federation on Administrative Offences.

3. Alekhin A.P., Karmolitsky A.A. Administrative law of the Russian Federation. M.: Mirror 2005.

4. Grishkovets A.A. Public service and civil society: legal problems of interaction (Russian practice) // State and Law. 2004. No. 1.

5. Kozbanenko V.A. Legal support for the status of state and municipal employees: general and special // State and Law. 2003. No. 1.

6. Starilov Yu.N. What is happening to the Russian civil service institution? // Journal of Russian Law, 2004. No. 9.

7. Tikhomirov Yu.A. Administrative law and process. M, 2005.

8. Chikanova L.A. Legal regulation of official relations in the state civil service: issues of theory and practice // Journal of Russian Law. 2005. No. 4.

Unemployed citizens

The unemployed include able-bodied citizens with the following characteristics:

• do not have an official place of work;
• recorded in the employment service;
• are looking for work and want to start it.

A citizen acquires the status of unemployed on the basis of a decision of the relevant authorities.

Persons cannot be recognized as unemployed:

1. Under 16 years of age.
2. Pensioners receiving an old-age pension.
3. Those who refused two options for work offered by the employment service.
4. Those deprived of their liberty and sent to correctional labor by court decision.
5. Providing false documents about lack of work and earnings.

Udk bbk az labor law

6.SELF-CONTROL TESTS

1. The main function of labor law is:

a) social

b) protective

c) production

e) educational

1. Labor legislation, in accordance with the Constitution of the Russian Federation, refers to:

a) the exclusive competence of the Russian Federation

b) the exclusive competence of the constituent entities of the Russian Federation

c) joint competence of the Russian Federation and constituent entities of the Russian Federation

1. Are civil servants subjects of labor law:

a) yes

b) no

c) are subjects of only some relationships

1. The rules establishing the rights and guarantees of the activities of trade unions in the field of labor relate to ... part of the branch of labor law:

A)

general

b) special

c) special

1. The labor of foreigners in Russia is regulated by:

a) Russian legislation

b) international law

c) Russian legislation and international treaties

d) legislation of a foreign state.

1. Sources of labor law include:

a) Presidential Decree on conferring the title – Honored Worker

b) employment agreement

c) an order for the enterprise about hiring

1. Labor capacity arises for an employee:

a) 16 years old

b) 15 years

c) 14 years old

1. Employers may be:

a) only legal entities

b) legal entities and other organizations

c) organizations of all forms of ownership and individuals

1. Local regulations include:

a) internal labor regulations

b) an order for the enterprise on appointment to a position

c) Decree of the President of the Russian Federation on the personal conferment of honorary titles

d) Instructions on the procedure for maintaining work books

1. The parties to the social partnership are:

a) employees, employers, their representatives, as well as government bodies

b) associations of employers and government bodies

c) employees, employers, their representatives

1. Conditions that worsen the situation of workers compared to the law

   :

a) may be included with the consent of the trade union

b) may be included by mutual agreement of the parties

c) cannot be turned on

1. What type of collective agreement is concluded with the participation of the Government of the Russian Federation:

a) general agreement

b) regional agreement

c) professional tariff agreement

d) territorial agreement

1. Which collective agreement are the participants of local governments:

a) general agreement

b) regional agreement

c) professional tariff agreement

d) territorial agreement

1. Labor arbitration is created:

a) from representatives of the parties to a collective labor dispute and an independent mediator

b) only from representatives of the parties to a collective labor dispute

c) parties to a collective labor dispute and the relevant state body for the settlement of collective labor disputes

1. How is a collective agreement adopted?

a) employer

b) at a general meeting of employees

c) by the employer, taking into account the opinion of the trade union

d) participants in collective bargaining

1. State bodies for the settlement of collective labor disputes, within their powers:

a) check the powers of representatives of the parties to a collective labor dispute

b) bring to justice representatives of the parties guilty of failure to fulfill obligations

c) declare the collective agreement invalid

1. A collective agreement can be concluded for the following period:

a) no more than 5 years and, by agreement of the parties, can be extended for another 5 years

b) no more than 3 years

c) no more than 3 years and, by agreement of the parties, can be extended for another 3 years

d) no more than 5 years

1. The conciliation commission is created:

a) from representatives of the parties to a collective labor dispute and an independent mediator

b) only from representatives of the parties to a collective labor dispute

c) parties to a collective labor dispute and the relevant state body for the settlement of collective labor disputes

19. When employees are simultaneously covered by several agreements, the following applies:

a) the most favorable conditions

b) conditions stipulated in agreements concluded at a higher level of social partnership

c) conditions providing for the greatest differentiation in labor regulation

20. At what age can a citizen be recognized as unemployed?

?

a) 18 years old

b) 16 years old

at the age of 15

d) 14 years old

21. Can citizens sentenced by a court to punishment in the form of deprivation of the right to occupy certain positions or engage in certain activities be recognized as unemployed?

a) yes

b) no

c) they can, if the criminal record is withdrawn or expunged

1. Are persons fired for violation of labor discipline entitled to receive unemployment benefits?

a) yes

b) no

c) yes, but the benefit is reduced by 25%

1. If the unemployed person refuses two options for suitable work:

a) the benefit amount can be reduced by 25% for up to 1 month

b) payment of benefits may be suspended for up to 3 months

c) payment of benefits is terminated.

1. Can a citizen studying by correspondence at a higher educational institution be recognized as unemployed:

a) yes

b) no

1. What is the maximum amount of unemployment benefit?

a) 100% of previous average earnings

b) 75% of previous average earnings

c) 50% of previous average earnings

d) the amount established annually by decree of the Government of the Russian Federation

d) living wage

1. The hiring test is established (as a general rule)

a) mandatory for all employees

b) by agreement of the parties

c) only in cases provided for by law

d) at the discretion of the employer

1. The probationary period for an employee cannot exceed (as a general rule

   ):

a) 1 month

b) 3 months

c) 6 months

1. There is no probation period

   :

a) temporary workers

b) persons under 21 years of age

c) women with children under 3 years of age

d) pensioners

29. An employment contract is considered concluded from the moment:

a) signing an agreement

b) job order

c) specified in the contract or actual permission to work

30. How long in advance is a temporary employee required to notify the employer in case of termination of the employment contract at his own request?

a) 2 weeks

b) 3 weeks

c) 10 days

d) 1 month

31. If the term of the employment contract has expired and neither party has demanded its termination, then the contract is considered:

a) extended for an indefinite period

b) extended for the same period

c) terminated

32. The employee’s achievement of retirement age is the basis for termination of the employment contract:

a) yes

b) no

33. When hiring, the employer has the right to require the employee to provide

:

a) work book, military ID, questionnaire, medical certificate

b) passport, work book, pension insurance certificate

c) passport, work book, reference

34. For what period is it possible to transfer an employee without his consent to a job not stipulated by an employment contract with the same employer:

a) for 1 month

b) for the entire duration of production needs

c) for 3 months

35. Which employees can be fired for immoral misconduct?

a) master of industrial training at a vocational school

b) financially responsible person

c) any employee

d) production site foreman

36. How long in advance are employees notified of the introduction of new wage conditions?

a) within 2 months

b) for 1 month

c) in 2 weeks

d) in 1 week

37. A fixed-term employment contract can be concluded for a period of up to:

a) 3 years

b) 5 years

c) 7 years

38. Upon dismissal due to a reduction in the number or staff of employees, the employee must be notified of this for:

a) within 2 months

b) for 1 month

c) in 2 weeks

d) in 3 months

39. Employees dismissed due to staff reduction are paid severance pay in the amount of:

a) average earnings

b) two weeks' earnings

c) not paid

d) 2/3 of average earnings

40. Employees dismissed upon expiration of the employment contract are paid severance pay in the amount of:

a) average earnings

b) two weeks' earnings

c) not paid

d) 2/3 of average earnings

1. In labor law, the following hours are considered night time:

a) from 10 pm to 6 am;

b) from 11 pm to 6 am;

c) from 10 pm to 5 am;

d) from 24 o'clock to 6 o'clock in the morning.

1. Overtime work cannot exceed:

a) 120 hours per year and 4 hours for 2 consecutive days;

b) 140 hours per year and 2 hours during the day;

c) 120 hours per year and 2 hours during the day;

d) 140 hours per year and 4 hours for 2 consecutive days.

1. With the consent of the employees, the working hours can be set:

a) 36 hours a week;

b) 45 hours a week;

c) 7-hour working day (with a 6-day week).

d) 8-hour working day (with a 6-day week).

1. Part-time working time, the employer is obliged to establish:

1. to any employee at his request;

b) a disabled person of group 1 or 2 at his request;

c) a woman who has a child under 14 years of age.

45. Replacement of annual paid leave with monetary compensation:

1. not allowed;

b) allowed for production reasons with the written consent of the employee;

c) a part of the vacation exceeding 28 calendar days is allowed.

1. Work on weekends and holidays is permitted:

1. to prevent accidents without the employee’s consent;

b) in cases specified in the Labor Code of the Russian Federation with the consent of the employee;

c) always only with the consent of the employee and taking into account the opinion of the trade union.

1. In case of temporary disability of an employee, annual leave:

1. extended if stipulated in the collective agreement;

b) extended with the consent of the employer;

c) is extended in any case.

1. Dividing the vacation into parts:

1. impossible

b) possible by agreement between the employee and the employer

c) possible at the request of the employee

d) possible at the request of the employer.

1. Calculation terms upon dismissal:

1. no later than 10 days after dismissal

b) on the day of dismissal

c) no later than 3 days after dismissal

d) no later than 3 days before dismissal.

1. Wages overpaid to an employee due to a counting error:

1. may be withheld by the employer

b) cannot be withheld

c) can be withheld with the consent of the employee

1. Involvement in overtime work is carried out:

1. always only with the written consent of the employee;

b) without the employee’s consent in the cases specified in the Labor Code of the Russian Federation;

c) always only with the written consent of the employee and taking into account the opinion of the trade union.

1. For part-time work, payment will be made:

1. as during normal working hours;

b) in proportion to the time worked;

c) 2/3 of the tariff rate.

1. The employer is obliged to establish a reduced working time for an employee engaged in work with hazardous working conditions:

1. according to his statement;

b) without his consent;

c) in accordance with the collective agreement.

1. Leave without pay can be granted by the employer:

1. for good reason and at the request of the employee;

b) due to downtime and with the consent of the employee;

c) by decision of the employer and without the consent of the employee.

1. Night work:

1. reduced by 1 hour;

b) reduced by 1 hour for employees hired specifically for night work;

c) does not contract.

56. An employee’s right to use vacation for the first year of work arises:

1. after 6 months of work;

b) after 11 months of work;

c) at his request at any time.

57. Parental leave:

1. counted towards the length of service;

b) are not included in the length of service;

c) are counted towards the total length of service, but not towards the continuous length of service;

d) are counted towards the length of service only until the child reaches 1.5 years of age.

1. Wages overpaid to an employee due to incorrect application of the law:

1. may be withheld by the employer

b) cannot be withheld

c) may be withheld by court decision

1. What is the total amount of monthly salary deductions (as a general rule):

1. no more than 20% of salary

b) no more than 25% of salary

c) no more than 50% of salary

d) no more than 75% of salary.

1. When is vacation pay paid to an employee?

1. no later than one day before the start of the vacation

b) no later than 3 days before the start of the vacation

c) on the first day of vacation

d) on the last day of vacation

1. In case of intentional damage by an employee to the employer’s property, the employee shall compensate for:

a) only real actual damage

b) real damage and lost profits

c) real damage, lost profits and moral damage.

1. An employee’s financial liability in case of careless infliction of material damage is limited to:

a) the average salary of an employee

b) the amount of actual damage

c) minimum wage

d) 10 minimum wages.

1. Agreements on full liability cannot be concluded:

a) with guards

b) with persons under 21 years of age

c) pregnant women

d) cashiers.

1. To what extent is the head of an organization liable for damage caused to the organization:

a) within the average earnings

b) within three official salaries

c) within the limits of direct actual damage

d) in full.

1. To what extent is an employee responsible for causing damage to the employer’s property while intoxicated:

a) within the average earnings

b) within three official salaries

c) within the limits of direct actual damage

d) in full.

1. Why in labor law, when bringing an employee to financial liability, harm is called direct actual:

a) because it includes lost profits

b) because the employee, as a rule, is responsible within the limits of average earnings

c) because the amount of damage subject to compensation does not include lost profits

d) because the employee, as a rule, is responsible within the limits expressly specified by the employer.

67. In what order is an employee held liable if the amount of damage caused exceeds his average earnings:

a) by order of the employer

b) by order of the employer with the consent of the trade union

c) in court

d) in a contractual manner.

68.
What is the duration of the limitation period established for bringing an employee to financial liability if damage is revealed as a result of an audit:
a) 6 months

b) 1 year

c) 2 years

d) 3 years

69.
Does the employer independently reduce the amount of damage subject to compensation to the employee:
a) yes

b) yes, with the consent of the trade union

c) yes, with the consent of the state labor inspectorate

d) no

70.
After an employee has learned of a violation of his right
, he can contact the CCC:

a) within 3 months

b) within 2 months

c) within 2 weeks

d) within 1 month

71. From the moment the application is received by the CCC, the labor dispute must be considered:

a) within 10 days

b) within 15 days

c) within 2 weeks

d) within a week

72.
An application for labor disputes regarding dismissal is submitted to the court:
a) within one month from the date of delivery of a copy of the order

b) within 3 months from the date of delivery of a copy of the order

c) within 2 months from the date of delivery of a copy of the order

73.
Public control over compliance with labor legislation is carried out by:
a) trade unions

b) KTS

c) Rostrudinspektsiya

d) prosecutor's office

74.
An employee may bear full financial responsibility under a written agreement:
a) from the age of 18

b) from 16 years old

c) from 17 years old

d) no age limit

75.
Disciplinary sanctions are applied for disciplinary offenses
:

a) no later than 1 month from the date of discovery

b) within 1 month from the date of commission

c) no earlier than 10 days from the date of discovery

d) no later than two weeks from the date of commission

76.
A disciplinary sanction cannot be applied for a disciplinary offense later:
a) 6 months from the date of commission

b) 1 month from the date of commission

c) two weeks from the date of commission

d) two weeks from the date of discovery

1. Is transfer to another job for violation of labor discipline a disciplinary sanction:

a) yes

b) no

1. In what order are internal labor regulations adopted and amended :

a) based on the employer’s decision, taking into account the opinion of the trade union

b) at a meeting of a trade union organization

c) at a general meeting of employees

d) upon the recommendation of the employer at the general meeting of employees

1. In what order are bonuses given for high performance results?

a) by decision of the trade union

b) by decision of the employer

c) by decision of the employer and the trade union committee

d) by decision of employees

1. Is a disciplinary sanction recorded in the work record book?

a) yes

b) no

1. During what period is a disciplinary sanction considered valid?

a) within 2 weeks

b) within one month

c) within six months

d) within 12 months

1. In what case is a disciplinary sanction lifted early without issuing an order:

a) by decision of the trade union

b) by decision of the employer

c) by decision of employees

1. Is it legal to include in an employment contract with the chief accountant a condition on full financial responsibility:

a) yes

b) yes, by agreement of the parties

c) yes, with the consent of the trade union

d) no

1. Does an injury that occurred to an employee while performing actions that are not part of the employee’s job duties, but performed in the interests of the employer, apply to an industrial accident:

a) yes

b) no

1. Disputes about reinstatement are considered:

a) in CTS

b) in court

c) at the state labor inspectorate

d) in the prosecutor's office

1. Individual labor disputes are considered:

a) at the employee’s place of residence

b) at the location of the employer

c) alternative jurisdiction is possible

1. Time limit for consideration of a dispute in the CCC:

a) 5 days

b) 10 days

c) 15 days

d) 30 days

1. Enforcement of the decision of the CCC is carried out:

a) trade union

b) bailiff

c) state labor inspectorate

d) the prosecutor's office

1. A collective labor dispute is resolved:

a) by the parties themselves with the involvement of a mediator, labor arbitrators

b) in court

c) at the state labor inspectorate

d) in the prosecutor's office

1. Workers warn the employer about an upcoming strike:

a) within 5 days

b) in 10 days

c) in 3 days

d) within 30 days

91. Is it possible to send women with children aged 3 to 14 years on a business trip?

a) yes

b) no

c) only with their consent

92. Is it possible to send on a business trip women with children aged

up to 3 years?

a) yes

b) no

c) only with their consent

1. Persons younger than:

a) 21 years old

b) 18 years old

c) 16 years old

1. Is it possible to involve disabled people in night work, overtime work, and work on weekends:

a) yes

b) no

c) only with their consent

d) with their consent, if these works are not prohibited by a medical certificate