Analysis of a civil contract
- What is a civil contract and what types there are
- When and how to conclude a civil contract
- What should be in the contract
- Terms of the agreement
- Contract period
- Termination procedure
- Differences between the civil contract and the employment contract
- Why is it needed to analyze the Civil contract?
- Pros and cons, risks, penalties
- How to re-qualify civil contract in an employment contract
Alignment of interests and determination of effective actions leading to the implementation of set tasks can be reached by drawing up a civil contract. For the optimization of economic processes and work, civil contacts are concluded between the participants of economic relations. Such document is given legal force, which makes it possible to use coercion to execute it. All agreements of such kind are subject to scrutiny, analysis of the civil law contact ensures the reliability of civil transfers.
What is a civil contract and what types there are
When two or more people reach an agreement regarding setting up, changing and termination of formal relations – it is a contract. Such relationships are based on legal equality of the associated subjects, which does not allow the obedience of one party to another. Voluntariness is a mandatory component of the conclusion and registration of contracts, which is protected by law since it ensures freedom of subjects. It represents the right to choose any types of consents, but they must coincide with the current legislation and not violate the established prohibitions.
The mixed type of civil contract differs from complex and unnamed by the nature of the obligations. If several obligations are formed from a mixed type, which are inherent in the constituent elements, then in the complex type there are a number of obligations of the same type. The unnamed type includes obligations that are not provided for by the legislation of the Russian Federation, without contradicting the law.
Obligations are usually divided in accordance with the classification provided for in the Civil Code:
- alienation of property;
- transfer it for use;
- production of works;
- provision of services;
- disposal of the results of intellectual activity and means of individualization.
On this basis, 26 types of contracts are defined, 6 of them form subspecies. Considering the document informing about the purchase and sale, as an example, it can be noted that the number of its types is 30. Each of them is equipped with its own specifics and in this regard, it is impossible to do without conducting their analysis, in order to protect interests.
When and how to conclude a civil contract
Civil contract is concluded when the will of the parties involved in it coincides, that is, unanimity, when approving the main provisions, as well as correctness in accordance with the established requirements for registration. Consent fixes the implementation of a single project or service.
It is possible to conclude a transaction between absent or present persons. The procedure includes 4 stages:
- discussion of the features;
- introduction to the offer;
- acceptance of the offer (permission to mark all the agreed points).
The conclusion of the Civil Contract is usually made in writing, an oral agreement is allowed at a cost of no more than 10 thousand rubles.
The presentation of a book with work records is not required, but when entering into a contract with a foreign person, you will need to approve his patent or rights to perform the work.
What should be in the contract
The signed consent specifies all the essential conditions. If they are not registered, then it will be considered invalid. Popular forms of GPA are contracting and providing services.
The following information is provided in the document:
- bank details;
- execution time frame;
- possible extension;
- ways to evaluate the result;
- the cost of services and the procedure for their payment;
- amount of compensation upon termination;
- fines and penalties charges in case of violation of deadlines.
The subject matter of the contract plays an important role in the conclusion, as it determines its meaning and nature. It sets out the type of activity to be performed. During the verification of civil contracts, the specifics of the employer are taken into account.
Terms of the agreement
As for other essential conditions, they can be divided based on the source of mandatory compliance:
- regular (terms of execution; price, etc.);
- prescribed (conditions on the subject that are established by law);
- initiative (determined by the parties by agreement: terms of performance or delivery of goods).
The content of the contractual obligations is expressed in the breadth of visibility of the transaction itself, on which the agreement is based, because most of its terms are set not by the desire of the participants, but by the legislation and customs of the business sphere.
From the moment of conclusion, the document is considered to have entered into force and is binding on its participants. Relations that arose before the conclusion of the contract may be subject to the agreement of the parties, if they do not violate the law and are not organized from the content of such relations. The expired term of validity may entail the termination of obligations for the persons who concluded it, if this is specified in the contract. The absence of such a clause means that the agreement continues to be valid until the specified time of performance of duties.
The agreement can be terminated in the following ways:
- by mutual agreement of the parties;
- by a court decision, if significant violations are proven and in other cases, in accordance with Civil law;
- unilaterally, if provided for by law;
- by a sudden change of circumstances.
In all these cases, an act of termination is drawn up, it is drawn up in accordance with the procedure established by law. During the verification of civil contracts or in the event of a refusal to comply with the civil contract of one of the parties, a corresponding notification is sent in the form of a registered letter. It contains all the necessary details, date and signature of the initiator. The transaction is considered terminated after the second party is notified of this event.
Differences between the civil contract and the employment contract
The main difference between a civil agreement and an employment agreement is the type of legal relationship they regulate. A contract with an employee regulates the relationship between the employee and the employer. In practice, the means for determining them have already been developed and differences from other similar civil law transactions have been identified. If the work contract is not concluded, the employee is not protected from the consequences of the lack of cooperative relationships. They do not take into account the possibility of equalizing the rights of subjects depending on actual events, and the legislators seek to make them equal.
In civil relations, the participants are the customer and the contractor, who is declared an equal and independent entity in the civil field. Civil contract do not contain public guarantees, this is reflected in the interests of the state to check them for falsity. Therefore, they can be concluded to perform an activity at a time. In other situations, it is desirable to conclude a document on the performance of activities.
Why is it needed to analyze the Civil contract?
In order to avoid the risks of changing the status of the civil contract in labor, a detailed analysis of the civil law contract is carried out. It is also worth clarifying the following points:
- the content of all the mandatory conditions in it;
- how they should be implemented;
- validity period;
- date of conclusion;
- maintaining a balance of interests;
- profitability for customers;
- penalties in the form of fines for unfair performance of obligations;
- termination and others.
It is not recommended to sign a document without studying its contents. Even when explaining that this is a model agreement, it still needs to be read carefully. Often there are customers who hide their superiority, applied when assigning remuneration, that is, the expression of their will pays or not.
Pros and cons, risks, penalties
The benefits of the civil contract are reduced tax payments and fund contributions. The room for the workplace is not allowed to rent, you can not follow the formalities when hiring new employees in your company. The employer saves on the social package of the staff. The negative side is the lowest indicator of employee management, that is, the refusal to work can be without specifying the reasons. Usually, such a company is often interested in the control authorities.
When drawing up the civil contract, the customer must exclude the points directly pointing to the analogy of the employment contract. The risk of concluding a civil contract may be its verification by the labor inspectorate. If it is found that the functions of employees affect the characteristics of the employment relationship, the organization is issued a fine and an obligation to make unpaid tax and stock payments. The payment of compensation to an employee is determined by a court decision. If a substitution is detected during the verification of civil contracts, the official is fined 20 thousand rubles, for legal entities the amount of the sanction will be up to 100 thousand rubles.
How to re-qualify civil contract in an employment contract
Due to the fact that a contract of a civil nature is created on a one-time agreement, repeated provision of services of the same category entails its re-registration in the TD. To turn the civil contract into a working contract, it is necessary to supplement it with clauses that prove the presence of a working relationship. An example is the consolidation of the workplace, the appointment of leave, sick leave, compliance with the company’s regime and the implementation of job descriptions.
Relations that have arisen on the basis of the civil contract are recognized as labor relations:
- according to the submitted application from the contractor;
- in connection with the regulation of the supervisory authority in the field of labor;
- the adoption of a court decision on this.
Article 19.1 of the Labor Code of the Russian Federation provides an attempt to re-qualify the civil contract into an employment contract after receiving materials from the regulatory authorities.
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