The difference between an employment contract and a civil contract is a matter that affects ordinary citizens and entrepreneurs. Its proper resolution will help to avoid many difficulties with government agencies.
Difference in terminology
The main difference between an employment contract and a civil contract is that the first is the subject of a study of labor law, the second is civil.
The Labor Code gives a clear definition of an employment contract with its components. The general definition is given in the Civil Code, and then certain types of contracts are described, in particular, sales, contracts, etc. GPA have serious differences among themselves. The conclusion of an agreement with employees is based on a standard form.
Despite the outward ease of the question, it is in fact associated with many nuances. Judicial practice shows that it is not so easy to determine where the labor contract is and where the civil contract is, especially since the employer tries in every possible way to get away from this.
To identify the difference between an employment contract and a civil contract, take a look at the Labor Code.
Difference in terminology
This is an agreement between an employee and an employer. The employer is obliged to provide work with a clear list of rights and obligations, to organize the appropriate conditions in accordance with the norms of law. Next duty – pay regularly the salary stipulated by the contract in accordance with the law (guaranteed minimum).
The employee is obliged to fulfill his duties under the control of the employer, observing the internal routine.
GPA is an agreement between two or more persons that gives rise to rights and obligations or changes or cancels them. The difference between an employment contract and a civil contract in the presence of a clear list of conditions. In addition, each agreement has an individual content and variations of conditions.
Employment contract structure
What are the hallmarks of an employment contract from a civil law agreement?
First of all, we pay attention to the clauses of the agreement:
- information about the employee (full name);
- information about the employer (name of the representative of the organization or individual entrepreneur, name of the organization or its branch);
- TIN of the employee and employer;
- place of work;
- position according to the staff list;
- day of employment;
- the duration of the contract, if it is not perpetual;
- payroll formula or salary;
- working day mode;
- guarantees and compensations if the employee is hired with difficult and harmful working conditions;
- nature of work (travels, business trips, other options);
- place and date of signing the agreement.
Information about the employee and the employer is taken from the passport of a citizen or a document confirming the identity of a foreigner.
Other conditions of the employment contract
The agreement may include additional conditions on trade secrets, special measures of social insurance, on a probationary period, the obligation to work a minimum period if the training was paid by the employer.
Thus, a standard set of conditions is provided that applies to all employees. It does not matter either the industry in which they are engaged, the legal form of the enterprise, or the form of ownership (private or state).
GPA structure
A civil contract with an individual, as the closest form of agreement, has a different structure.
- preamble (indication of the parties);
- rights and obligations of each party;
- terms of payment;
- terms of the agreement;
- responsibility of the parties.
- other items.
The described structure is approximate, the parties to the agreement have the right to define it differently, although the presence of a number of points is mandatory.
The terms of the civil contract are formulated by the parties at their own discretion. They have the right to use one of the options proposed by law, or to establish their own rule, if such an opportunity is provided.
In civil law, there is a principle according to which everything is allowed, except what is expressly prohibited by law.
The employer is obliged to adhere to the requirements of the law, it is forbidden to worsen the position of the employee. The choice is limited to the options proposed by law.
For example, the conclusion of an agreement on full liability is permitted with limited categories of workers. The agreement is signed on the basis of the standard form, it is very difficult to go beyond its framework.
Social Security Issues
The position of an individual in labor relations is different than in civil law relations.
- the employee receives a guaranteed payment regardless of the volume and quality of work;
- paid vacation, sick leave, rely on payments during the period of stay of citizens in the decree;
- the law limits the duration of working hours (40 hours per week).
Contributions to social insurance funds, to the PF under a civil law contract with an individual are also made by a person who pays for work or services, but in a smaller amount and volume and at the expense of the person receiving payments.
The employer provides part of the pension and social contributions at his own expense.
Rights and obligations in labor relations
The law fixes the rights and obligations in the Civil Code. In employment contracts, obligations are formulated according to a single standard. All employees have a single status.
A more important element is the definition of the scope of official duties, which determine the labor function or what exactly the employee does at his workplace.
The government publishes a directory of professions, the document gives the name of professions, positions, and defines job duties.
The description is given in general form. But this is enough to formulate the job description.
In enterprises, especially in private ownership, the desire to combine several positions in one or distribute additional responsibilities among several employees was noticed. Often in connection with this, complaints are heard that the employer is trying to force the employee to perform duties to which he is not related. Naturally, there is no question of additional payments in favor of the employee.
Rights and obligations in civil matters
Civil law contains a list of rights and obligations of the parties to the contracts. However, the parties are entitled to reduce their volume, modify, transfer to the other side. For example, the parties to the lease in each case independently decide who is responsible for the current repair.
Practical example
What, for example, is the difference between a civil contract for the performance of work and services from an employment contract?
The GPA participant independently decides where and how to organize the work process, the customer has the right to make complaints only regarding the quality of the result. The progress of the contract is not the sphere of influence of the customer.
The employee is obliged to obey the routine and follow instructions in the course of performing his work.
The customer has the right to challenge the claim of the contractor on the payment of remuneration, such actions are prohibited with the employee.The law gives the right to recover damage from the employee, however, the amount claimed is limited to the average monthly earnings. Exception - cases of full liability. According to the GPA, damages are made in full.
The nuances of the contract conclusion procedure
The procedure for concluding a civil contract differs from the procedure provided for by the Labor Code.
On the proposal to conclude an agreement, the potential party to the contract has the right to offer its terms. If his conclusion is mandatory, but does not come to an agreement, a protocol of disagreements is drawn up. And one of the participants has the right to go to court.
And further. The contract is not considered concluded until all the conditions have been agreed upon, without which it is considered to be non-concluded.
The Labor Code provides that the actual admission to work means the conclusion of an agreement, even if the papers were not signed or the signed document does not have all the conditions that are mandatory.
The law obliges the employer to amend the contract to the employer if there is something missing.
If the gaps are not addressed, the law applies.
The procedure for concluding a civil contract sometimes requires registration of the transfer of rights by agreement. Actual performance of the contract may not be sufficient.
We prove the fact of access to the workplace with the help of witnesses, the conclusion of a written transaction with their words can no longer be confirmed. Documents required.
Labor relations are established, as a rule, for unlimited time. In civil law, on the contrary, the agreement is limited to a specific period, unless otherwise provided by law.
Conclusion
Thus, the employment contract is carefully described by law. Possible changes are included in the list of options proposed by law.
GPA softer design. The parties are entitled to amend it at their discretion. The restrictions in this case are minimal.
The employee submits to the authority of the employer, in exchange for which, he has a number of social guarantees. The contracting party does not possess them, but it has the freedom to organize its activities.