Comparative analysis of Labor and Civil Law contract
- The difference between civil law contracts and employment contracts
- Civil law contract and employment record book
- Is it possible to re-qualify a civil law contract into a employment contract?
- Is it possible to conclude a Civil law contract and an employment contract at the same time?
Before conducting a comparative analysis of an employment and civil law contract, it is necessary to understand what each of them represents. The concept and their main features are given in the legislation of the Russian Federation.
The difference between civil law contracts and employment contracts
An employment contract is an agreement concluded between an employee and an employer that regulates the relations between the parties, their rights and obligations. In accordance with it, the employee undertakes to perform the work duties assigned to him under the control of the employer and in his interests, the latter undertakes to provide work to the employee within the framework of his functions and pay for his work.
It can be concluded that this is an agreement that is concluded between the subjects and is regulated by the norms of the Labor Code of the Russian Federation. The main regulatory act that regulates them is the Labor Code of the Russian Federation. Certain aspects of these legal relations are regulated by legislative, regulatory legal acts, as well as internal regulatory documentation of the employer.
A civil law contract is an agreement between two or more persons that forms, changes or terminates the obligations of these parties. This interpretation is fixed in the Civil Legislation of the Russian Federation. By signing such an agreement, one party assumes certain obligations, and the other has requirements.
If we conduct a comparative analysis of the employment and civil law contract, it becomes clear that the first one regulates legal relations related to labor activity, which are regulated by labor legislation. The second one regulates legal relations to the civil legal sphere, which can arise in any sphere, if it does not contradict Russian legislation.
If we talk about what kind of document it is necessary to conclude when carrying out a particular activity, then an employment contract is concluded to regulate labor relations. That is, if it is meant to accept an employee into the staff, formalize it in accordance with the Labor Code of the Russian Federation and perform a certain function on a permanent basis in the interests of the employer.
Civil law contract, as a rule, is concluded if you need to perform a certain task on a one-time basis without taking a person to the company staff. In other words, if a person is engaged to perform a certain task. One of the most common types is a contract and gratuitous provision of services. The first is an agreement between the contractor and the customer, according to which the first undertakes to perform the task and provide the necessary result, the second undertakes to clearly set the task, accept it and pay remuneration for its implementation. The second also implies that the performer performs a certain task to obtain the expected result. Its difference is that there is no fee for the services provided.
Based on the above, we can conclude that both of these types of civil law contracts are inherently similar, the only difference is whether the actions are performed by the contractor on a paid basis or free of charge. A contract is concluded if the result is important. And the contract of gratuitous provision of services focuses on the process itself, not the result.
The main feature of the employment contract is that it clearly establishes the rights and obligations of the employee, as well as its functions. The main function of the employee is that he must carry out his work under the control and at the expense of the employer, provided with the means of labor on the provided territory. This is the main difference between labor relations and civil law relations.
Also, the distinctive features of an employment contract include certain conditions for cooperation between the parties, which must be spelled out in this contract.
The Labor Code of the Russian Federation obliges to prescribe the following points:
- working time mode;
- working conditions;
- rest time;
- conditions of compulsory social insurance;
- the nature of the work;
- guarantees to the employee for working in dangerous and harmful conditions.
In accordance with the legislation of the Russian Federation, the civil law contract must also contain certain conditions that are necessary for it to be considered concluded. These are the so-called essential conditions, which are given in the Civil Code of the Russian Federation and other regulatory and legislative acts. The essential conditions also include those that are the object of the agreement of the parties. All of them must necessarily be spelled out in the subject of the contract.
Another important feature is that in an employment relationship, an employee assumes the responsibility to personally perform the work. As for civil law relations, there are no such restrictions. The contractor may perform the work personally or involve third parties for these purposes, unless otherwise specified in the agreement itself. Here, the main priority is the result and the exact execution of the task. The differences between the documents are shown in the table below.
|Employment contract||Civil law contract|
|It is necessary to fill out all personnel documents||The employee is not accepted into the staff, personnel documents are not issued|
|The work is carried out personally||You can involve third parties to perform the work|
|The employer provides a workplace and means of work||The customer is not obliged to provide the contractor with everything necessary|
|The employee has the right to social guarantees provided for by the Labor Code of the Russian Federation||The contractor does not have the right to labor guarantees|
|The work is regulated by internal regulatory documents||How and when the contractor decides to perform the work independently|
|Disciplinary penalties may be imposed on the employee||Disciplinary penalties are not imposed|
Civil law contract and employment record book
An employee who is accepted into the staff receives remuneration for his work in the form of wages. The procedure and principles of remuneration are clearly regulated by the current legislation, the norms of which the company is obliged to follow. For example, there is a minimum wage, a minimum frequency of payment is established, responsibility for late payment, etc. Civil relations imply remuneration for performing certain actions or achieving a certain result, which is negotiated between the parties in advance and specified in the agreement itself. Also, the parties themselves determine the frequency of payment and the terms.
If the employer has concluded a civil law contract with an employee, he does not make any entries in the employment record book. But the period of time during which the work was performed or services were provided for it is included in the insurance experience and is determined by the period of validity of the agreement.
Is it possible to re-qualify a civil law contract into a employment contract?
The analysis of judicial practice shows that there are certain signs that make it possible to clearly distinguish these two types of agreements:
- the employee is accepted into the staff, is involved in the economic activities of the enterprise and performs his assigned functions personally;
- the employee is obliged to obey the norms of the Labor Code of the Russian Federation and the regulations regulated by orders, orders and other internal regulatory documents of the organization;
- the work is not of a one-time nature, but is performed on an ongoing basis;
- in the agreement concluded between the employer and the employee, social guarantees are prescribed.
Only the court has the right to re-qualify. If such a retraining takes place, it can lead to negative consequences. For violation of the current legislation, sanctions may be applied to the violator by the tax service or other supervisory authorities.
Is it possible to conclude a Civil law contract and an employment contract at the same time?
The current legislation of the Russian Federation does not contain norms that would prohibit the simultaneous conclusion of an employment contract and the Civil law contract of an organization with a specific individual. This means that it is possible to conclude them at the same time, but provided that it implies performing different types of work on them, they do not replace each other in order to avoid providing social guarantees to the employee.
Despite the fact that the object of the civil law contract and the employment contract is labor – performing certain operations to obtain a result, they have a number of important differences that need to be taken into account. If the first one is used to regulate actual labor relations, the agreement may be reclassified in court, and sanctions will be applied to the violator.