In Russian law, there is such a thing as a “civil contract”. The peculiarity of this legal category lies primarily in the breadth of possible types of agreements that may correspond to its legal nature.
At the same time, the term in question is often used in the context of legal relations, the subjects of which are the employer and the employee. And this despite the fact that for the legal consolidation of communications between them there is a special labor law. In what cases is it lawful to use civil law contracts in the relationship between the employer and the employee? What are the specifics of these contracts?
Concept of contract
To begin with, we will study the concept of a civil law contract. The fact is that this term has a very wide range of interpretations. In the general case, a civil contract can mean almost any contract concluded within the framework of civil law. That is, this kind of agreement is quite suitable for transactions between businesses, individuals, non-profit organizations. Thus, the types of civil contracts can be very different.
At the same time, in Russian legal practice, this term has traditionally entrenched in the field related to labor legislation. That is, it is used as one of the possible design options labor relations through the norms of the Civil Code. While the main source of law in the traditional format of employment is the Labor Code of the Russian Federation.
It can be noted that some lawyers consider the Labor Code as part of civil law. This thesis is valid, experts believe, due to the fact that in the legal system of the Russian Federation there are a large number of related industries. This criterion, in addition, allows you to combine in one category not only the Civil Code of the Russian Federation and the Labor Code of the Russian Federation, but also, for example, the Family Code. However, in modern legal science there are supporters of the complete mutual isolation of these types of legislation.
Employer Obligations
In the context of this article, our task is to compare the civil law contract with the labor contract, examine the general points for each of the contracts and highlight the special ones. According to many lawyers, the most obvious differences between a contract under the Labor Code of the Russian Federation and a civil contract can be traced at the level of obligations. So, in particular, if we are talking about those for the employer in an employment contract, then the following list can be distinguished:
- payment of a stable salary (with a frequency of at least 2 times per month);
- vacation pay;
- compensation for travel expenses;
- payment of various social benefits;
- training costs, compensation for the use of employee property.
And this, of course, is not an exhaustive list. It can also be noted that the above employer responsibilities essentially become the rights of the employee. A civil contract is not characterized by any of the above features.
Of course, a variant is possible in which the employer (in the context of a civil agreement it is more correct to call him a customer) wants to provide the employee with the appropriate privileges in order to increase loyalty.However, this aspect of the relationship is not legal, it is not regulated by law.
Employee Obligations
The civil contract and the employment contract in the context of the obligations of the employer we have considered. We now study the aspect that reflects the duties of the employee. If we are talking about a contract drawn up in accordance with the norms of the Labor Code, then the main duties of the employee will be presented in the following list:
- come to work according to the approved schedule, lateness is unacceptable;
- comply with direct orders of management;
- to be at the workplace during the period established by the contract.
A civil contract with an employee does not provide for the fulfillment of such obligations. At the same time, in practice it often happens that an employee (in this context it is more correct to call him “contractor” or “executor”) executes them informally - with the goal of stability in receiving orders (continuous work).
Thus, in a number of cases, the employing company, by signing a civil contract with the employee, does this in the hope of avoiding the obligations characteristic of contracts under the TC standards. At the same time, the company expects full loyalty of the employee (de jure, contractor or contractor) in the form of presence at the workplace and submission to the orders of the management. In turn, the employer can make reciprocal gestures in the form of vacation payments and the provision of other privileges to the employee that are characteristic of contracts under the rules of the Labor Code.
The design of both types of contracts is also characterized by certain specifics. If the employer signs a contract with the employee according to the norms of the Labor Code of the Russian Federation, then he is also obligated to have a workbook for him and to familiarize himself with other documents related to the activity - for example, with the internal labor regulations. In turn, when signing a civil contract, no additional documents are required.
De jure and de facto agreement
Thus, in practice, a civil contract is sometimes concluded between an employer and an employee instead of a labor contract drawn up in accordance with the norms of the Labor Code. It turns out that de jure a person carries out labor activities within the framework of civil law, and de facto - in a format consistent with labor law.
One of the possible reasons for the employer's desire to interact with employees in the form of an alternative to what is signed in the framework of the Labor Code of the Russian Federation is the lack of financial opportunities for the company to constantly fulfill the obligations that we listed at the beginning of the article. In turn, the employee himself agrees to sign a civil service contract for the provision of services instead of a labor due to a shortage of jobs in his city or because of the particular attractiveness of the vacancy that is open in a particular company.
State is watching
Thus, some employers practice signing civil contracts instead of labor contracts. But how legal is this? It should be noted the most important aspect regarding precedents, when a contract of civil law actually replaces the labor. If some time ago the state represented by the Labor Inspectorate generally turned a blind eye to such activities, now employers who impose civil law contracts on employees (while the content of the work involves concluding labor contracts) will be considered violators of the law. At the same time, an option is possible in which the court obliges the customer company to issue a full-fledged contract with the employee, in accordance with the norms of the Labor Code.
At the same time, legal relations under a contract alternative to labor may well be carried out in the context of the full compliance of the activities of the employee and employer with the provisions of the law.We noted that the state is beginning to closely monitor that the content of contracts de jure corresponds to the de facto work performed by a person. Let us further consider the aspect that reflects the scenarios of the use of civil law contracts in a pure, legal form.
Contract: objective need and types
The conclusion of a civil contract is the optimal solution when it comes, for example, to the need for payments for a one-time job or the performance of any services. It happens that the company does not make any sense to formalize the contractor as an employee.
Types of civil contracts, in addition, are very different in terms of adaptation to a particular area. For example, contracts of this type include those signed by newspaper editorial staff with freelance authors (as well as, for example, designers, layout designers, sometimes advertising agents, etc.). That is, the copyright agreement also belongs to the category of civil law.
The type of agreement under consideration is also used in cases where the employer, due to the legal nature of his status, cannot be a full-fledged employer. For example, if one individual hires another to perform any work or provide services. For example, if we are talking about childcare services, for parents, of course, it is not at all necessary to arrange a babysitter according to the Labor Code: they sign a civil law employment contract with her.
Payroll aspect
Speaking at the beginning of the article, the differences between the two types of contracts, we noted that in the framework of the agreement drawn up in accordance with the norms of the Labor Code, the employer must consistently pay salaries. The specificity of this type of cash incentives is regularity.
In turn, the concept of a civil contract does not provide for such a thing as salary. In the practice of settlements between an employer and an employee (executor), as a rule, other terms appear - “remuneration”, “fee”, etc. Thus, if we consider the differences between the two types of agreements in terms of salary, we can note that they dissimilar, firstly, on the basis of regularity, and secondly, in terms of the conceptual apparatus.
At the same time, as is known, obligations to pay various contributions to state funds, as well as tax deductions, arise before employing companies. What is their specificity for each type of contract? What should be paid by the employer who has concluded a civil contract with the contractor, contributions?
Tax aspect
It can be noted that the obligations on the transfer of taxes and other fees by the employing company in favor of the state are very similar under both types of contracts. Agreements, both within the framework of the Labor Code and in the civil law regulation regime, determine the appearance of certain financial obligations for the employer.
When paying a salary under an employment contract, the company must:
- withhold and transfer to the state 13% as personal income tax;
- transfer 22% of the salary to the FIU;
- send 5.1% to the MHIF;
- transfer 2.9% to the FSS.
In this way, the tax burden on the employer in the case of a signed employment contract, as we see, is significant. Is it possible for a company-employer signing a civil law contract to save on taxes and fees? Very little.
The fact is that the employer, paying fees, compensations and implementing other methods of settlements with performers, also has obligations to transfer fees - all but contributions to the Social Insurance Fund. Thus, the tax burden on the employer in a civil contract will be lower by only 2.9%.
The structure of the civil contract
Consider what a civil contract may look like.The sample structure of the corresponding document, as a rule, has very few elements of similarity with labor contracts. To a greater extent, it will be similar to civil (typical, for example, for the commercial sphere) agreements.
In Russian practice, the type of agreement under consideration is often called a contract. That is, an employee employed by the company under civil standards will in this case be considered a contractor. However, this, as noted by lawyers, is not important. Of course, it is desirable that the terms included in the form of a civil contract correlate with the content of the work. That is, if we are talking about a contract, then, probably, this term is best used, for example, in the construction industry or in the field of repair services.
A civil contract, the model of the structure of which we are currently considering, may look as follows:
Thus, in the title of the document we write "contract agreement", and in the preamble we reflect that such and such a customer on the one hand and such and such a citizen on the other ("contractor") have concluded a contract.
In the subject matter of the agreement, we reflect that the customer instructs, and the contractor agrees to perform a certain range of services (can be replaced by a list of works) and list the necessary items, as well as the timing of their implementation. Some lawyers also recommend that the contract include provisions according to which, upon completion of work (upon the provision of services), the contract terminates. Of course, the actual format for determining the terms may be different than the one that contains the civil law agreement (the sample is presented in the article).
The most important clause of the agreement states that the customer agrees to timely accept the results of the contractor's work and make payment. The criterion for fixing admission may be the signing of an additional act, as well as determining the conditions for the acceptance of work in certain provisions of the contract.
It can be noted that the clauses in the civil law contract are fairly standard for many other types of transactions. They reflect the responsibility of the parties, their rights and obligations, cost issues, as well as the procedure for resolving disputes. At the end of the document, the legal addresses of the customer and contractor are registered, signatures are put.
The differences are in the legal nature
Of course, the form of civil contract that we have considered is one of the simplest. However, on his example, we can see that the key provisions of the relevant contracts as a whole predetermine his unconditional membership in civil, and not labor, legislation. We will not find language reflecting the need for the contractor to appear at the object belonging to the employer - an office or, for example, the place of construction of a building. There are also no provisions reflecting the obligations of the employer to pay salaries regularly - the corresponding remuneration is transferred only upon completion of work, which, of course, meets the criteria prescribed in the contract.
Thus, no matter how similar the two types of contracts under consideration - labor and civil law - in form, content and legal nature, they are still very different. This fact, as many lawyers believe, has become one of the factors in the adoption by the state of relevant laws requiring employers to distinguish between approaches to formalizing labor relations with individuals. As we noted above, the employing company is not entitled to conclude a civil contract with a person if the essence of his activity is more suitable for the criteria defined and fixed in the Labor Code of the Russian Federation.
