Civil contract with an individual and its differences from an employment contract

Civil contract alternative to employment contract

Today, along with employment contracts, civil law contracts are also concluded between employees and their employers. In addition, such agreements are used in the process of settling relations between individuals and legal entities. Documents of this type clearly regulate the rights, duties and obligations of the parties, and also determine their liability in case of ignoring their terms.

It must be noted that the GPA agreement is concluded in strict accordance with civil law. In the process of considering controversial issues relating to other areas of law, civil legislation will take priority.

GPD - what is it

A written agreement between two or more parties on domestic and labor issues is a civil contract. The following agreements are concluded between the following participants:

• individuals;
• individual and legal entity;
• legal entities.

The main feature of such an agreement is its mandatory written form, the presence of all attributes that allow its parties to be identified, a clear description of the conditions, obligations, scope of work, services, actions and deadlines for their implementation. Depending on the type of agreement, they can be notarized.

Remember, the GPA agreement must clearly comply with the terms of civil law. If the parties go beyond its limits and try to limit each other’s rights and responsibilities, then in the future such an agreement can be considered void.

Therefore, in the process of drawing up such agreements, it is advisable to carry out their legal verification or analysis. So that in the future the other party will not be able to refuse with impunity its obligations for formal reasons.

Concept and types of employment contract

What is an employment contract?

An employment contract is a document that is signed by the parties to labor relations, on the basis of which the employee undertakes the obligation to perform work and obey the internal work and rest regime established by the employer, and the employer assumes the obligation to provide the work specified in the contract, ensuring working conditions in accordance with the law, the payment of wages in the specified amount and on time.

The main participants in the labor relationship are:

1. Tenant (employer). Both an individual and a legal entity are considered;
2. Worker. An employee can only be an individual who, at the time of signing the document, has reached the legal age.

An employment agreement has several aspects to understand:

1. As a source of rights and obligations for the main participants in the relationship;
2. As a document having legal force;
3. As a separate institution of labor law.

Each labor act is classified on different grounds.

According to the period of legal validity:

• indicating the deadline:

1. Precisely defined (applied when concluding an agreement with a person who is elected to a position);
2. Regarding the one being determined (applied in cases of formalizing a relationship with a person who must perform specific work, the deadline for which may depend on a number of circumstances);
3. Urgent (used when concluding a relationship with an employee hired to replace another person during his absence).

• without specifying the duration of the contract. It assumes the possibility of terminating the relationship not in connection with the arrival of the day specified in the contract, but in connection with the occurrence of the conditions for dismissal, which are provided for by law.

Types of employment contract.

By volume of activity:

• main position filling. In this case, the employer assumes the responsibility for storing the person’s labor document. The latter performs duties in full, throughout the entire operating mode;
• part-time replacement. Involves performing additional work for another person, in free time from the main replacement. The scope of the labor function is proportional to the duration of the work mode (no more than 4 hours).

Part-time substitution is not permitted for persons under the age of majority. The terms are not interchangeable with combining positions (performing duties for a fee that are not provided for in a specific agreement) and with expanding service areas or increasing the volume of work (in these cases, the volume of work required to be performed increases through the introduction of new local acts).

According to the condition of the test upon admission:

• with a probationary period. The conditions are included in the document at the will of the employer. The main reason for the inclusion of this item is to verify the availability of qualities and skills to perform the job function. A separate document is used for registration.

The maximum period of the probationary period is 3 months.

If the contract is concluded for a period of no more than six months, the maximum trial period is 14 days. For management personnel, the probationary period has been increased to six months;

• without test condition.

Types and forms of GPA

Types and forms of civil contract

Considering the very wide scope of use of civil contracts, all of them can be conditionally divided into several basic groups. Here are the highlights:

1. Contracts related to property. This category includes all agreements that regulate issues of purchase and sale, delivery, exchange, donation, and other similar relations that determine the legal transfer of a thing or property from one owner to another.
2. Agreements under which any work or action is performed. For example, we should highlight a contract where one party undertakes to carry out the actions specified in the agreement within a certain period of time. The duties and obligations of the customer are also spelled out. This category includes agreements close to employment contracts.
3. Agreements under which certain services are performed. Here there are agreements on the transportation of goods, passengers, storage of things, property, goods, provision of insurance services, agency agreement and other similar actions.

They are drawn up exclusively in writing, certified by the signatures of authorized representatives (in some cases they may require notarization). The validity period of such documents is determined by the agreement itself.

The main differences between a GPA and an employment contract

Considering that both labor and certain types of civil contracts stipulate that one party must perform certain actions in favor of the other and receive remuneration for this, these documents are often equated. But in fact, this should not be done, because they are based on different legal grounds.

To understand how such agreements fundamentally differ from each other, we suggest that you familiarize yourself with their main differences:

• under an employment contract, the employee receives a salary regardless of the final result and the availability of work performed;
• a civil contract provides for equality of the parties, while in labor relations there is a clearly defined hierarchy of positions;
• the essence of labor relations comes down to the employee’s constant fulfillment of the obligations stipulated in the job description, while civil contracts are focused on a specific end result;
• in labor relations there is a clear obligation of the employer to create normal working conditions for the employee, to provide tools, special clothing, and all necessary resources, and in civil relations these are the personal risks of the other party;
• under an employment contract, the employee is subject to the rules of arriving at work on time, following the established daily routine, and standard working hours, while in a civil contract such a rule is unnecessary (otherwise such a contract can be equated to an employment contract);
• an employee under an employment contract is obliged to fulfill the obligations assigned to him personally, and under a civil agreement the other party can delegate his obligations to the contractor;
• in labor relations, the employer is obliged to pay wages to the employee within the lines clearly specified by law, while under a civil contract, the payment of remuneration is regulated by the terms of the contract (usually upon completion of all or part of the work).

Remember, the main difference between employment contracts and civil contracts is that the terms of the former are regulated by the Labor Code, while the latter are subject to civil law.

Civil contract and employment contract. Taxes, insurance premiums and work experience.

Finally, we have come to the most important thing, which is why many employers are trying to replace labor relations with civil law ones - reducing mandatory payments. In fact, employers must pay taxes and insurance premiums in both cases. The only differences are in the form of insurance premiums. I will give you the payment data again in the form of a comparative table.

I hope that my material will be useful to both employees and employers; if additional comments or clarifications are needed, you are welcome.

How to conclude a GPA correctly

The procedure for concluding a civil contract

Considering that in the process of resolving controversial issues when considering civil agreements, the priority is the terms of such agreements (if they do not contradict or go beyond the scope of legal norms), it is very important to carefully write out each clause of such an agreement.

The basic structure of the GPA should contain the following information:

1. Props part. It clearly states who the parties to the agreement are with reference to documents that allow identification of the identity and powers of the signatories.
2. Subject part. It is advisable to initially establish what the parties are agreeing on, so that later there will be no ambiguous interpretations of the essence of further actions.
3. Basic performance indicators. Here it is advisable to indicate what will need to be done, the level of quality, what time frames are allocated for this, what result the contractor must deliver to the customer in the end.
4. Responsibilities and rights of the parties to the agreement. These sections (blocks) should describe in detail what the parties undertake to do in relation to each other to implement the terms of the agreement, and how the final result will be accepted.
5. Contract price. Actually the key section. Therefore, it is necessary to clearly indicate when and for what the customer will pay the contractor a fee, write down its amount, and the documents that will be drawn up as confirmation.
6. Confidentiality. Typically, the parties initially agree that the terms of such an agreement should not become available to third parties or the public. After all, no one has canceled competitors, and few people want to suffer losses due to information leakage (both from the contractor and the customer).
7. Responsibility of the parties. If there are obligations, then there must be sanctions for non-fulfillment. They are prescribed in this section within reasonable limits (in accordance with the norms provided for by civil law).
8. Force majeure circumstances. It wouldn’t hurt to add such an item or section. Quite often, the parties cannot fulfill their obligations for objective reasons. And it is advisable to agree on this from the beginning.
9. Final provisions. Typically, the duration of the contract, terms of renewal, resolution of controversial issues, early application, as well as the requisite part are prescribed.

Differences between labor relations and civil legal relations

Civil legal relations represent another form of legal relations in an integral system of law, which has its own characteristics and characteristics. There are a large number of definitions of civil legal relations in which scientists have emphasized different aspects of this type of relationship. Let's consider some of them and define a fundamental concept that will help distinguish between two areas of legal relations: labor and civil. Since these two areas intersect in their substantive activities, we need to indicate the author’s positions.

S.S. Alekseev defines a civil legal relationship as a connection between subjects of civil law through their rights and obligations, the implementation of which is ensured by the state.

O.A. Ruzakova gives the following definition of this concept: “A civil legal relationship is defined as a legal relationship regulated by the norms of civil law that arises between legally equal, property-separated entities regarding property, as well as intangible benefits, expressed in the presence of subjective rights and obligations.”

Thus, we can formulate the definition of a civil legal relationship as a legal relationship based on the norms of civil law, which develops regarding material and intangible benefits, the participants of which, having legal autonomy, act as legally equal bearers of rights and obligations.

In turn, the employment relationship is a legal relationship between an employee and an employer on the basis of an employment contract concluded between them, which presupposes the obligation of the employee to personally perform a certain labor function, comply with internal labor regulations and the corresponding responsibilities of the employer to ensure proper working conditions and timely payment of labor. and so on.

It should be noted that the subject and main content of labor relations is the labor process, living labor, while the subject of relations for a construction contract, assignment, order is the product of labor.

From the above it follows that labor and civil legal relations are a legal connection between subjects of law, however, each of the spheres operates with different legal acts.

Thus, these legal relations have both common and distinctive features that must be distinguished.

Civil legal relations that are formed for the purpose of performing certain work or providing services are closely related to labor relations.

For example, relationships that arise on the basis of the provision of services of a reimbursable nature. Just like labor relations, such relations arise on the basis of an agreement concluded by equal parties - the employee and the employer - and include payment for the provision of any services, within the framework of which such a category as labor is included.

Their essence is property relations arising from the result of labor, while labor law regulates property relations only as an element of labor relations. Thus, we can highlight the following differences between such social relations.

It should be noted that in civil law relations the employee performs a certain individual task, and not a labor function, he has a specific task set by the employer, and upon achieving it, receives a monetary reward. Participants in such legal relations themselves organize their activities in accordance with the concluded agreement and requirements.

They are not required to comply with any labor regulations and for violation of their obligations they bear not disciplinary, but civil liability (compensation for damages). In recent years, it is the independence (or lack of independence) of labor that is most often cited as a criterion for distinguishing between labor law and civil law.

As a result, payment is made for performing a certain labor or type of activity. Such remuneration is paid by mutual agreement of the parties; usually, wages are deducted immediately after the assignment is completed. Moreover, the amount of remuneration under a civil contract is not limited and is not regulated by any legislation.

It should be noted that the similarity of labor and civil law relations creates certain difficulties in determining the boundaries of legal situations. In addition, employees of the same organization can be both shareholders and directly perform their professional duties (in accordance with their position).

Labor and civil legal relations are based on contracts, which have their own characteristics.

An employment contract is, first of all, an agreement concluded between an employer and an employee, where the employer is instructed to provide the latter with work for a specified labor function, to ensure working conditions, to pay the employee wages on time and in full, and the employee is obliged to personally perform the labor function determined by this agreement , comply with the internal labor regulations established in the organization.

If we compare an employment contract with a civil law contract, the difference here is that in the second case the parties will be the customer and the contractor.

The employee, when concluding a civil contract, is not part of the workforce, and most importantly, is not subject to the internal labor regulations; he should not be responsible for maintaining the organization's work schedule.

Let's look at examples of civil and labor contracts.

In civil legal relations, a contract is an agreement between two or more persons on the emergence, change or termination of civil rights and obligations. Its result is the expression of the will of two or more persons. The will of these persons must be consistent. However, a contract is only an agreement between persons that is specifically aimed at causing legal consequences, i.e. on the emergence, regulation, change or termination of civil rights and obligations.

For example, LLC “Product Store”, hereinafter referred to as “Buyer”, represented by Nikolay Petrovich Skvortsov, acting on the basis of the charter, on the one hand, and LLC “Supplier of Goods”, hereinafter referred to as “Supplier”, represented by Elena Petrovna Kvasnikova , acting on the basis of the charter, on the other hand, entered into a supply agreement as follows:

- under this agreement, the supplier undertakes to transfer the ownership of the “Minsk” refrigerator to the buyer, and the buyer undertakes to accept and pay for one product supplied on the terms determined by this agreement, the Specifications (Additional agreements) to this agreement.

- the name (assortment, assortment), quantity, price of the goods, delivery time (period) and quality requirements for the goods are determined by the Specifications (Additional Agreements) agreed upon by the parties, which are an integral part of this agreement.

Article 784 of the Civil Code of the Russian Federation states that the transportation of goods, passengers and luggage is carried out on the basis of a contract of carriage.

General conditions of transportation are determined by transport charters and codes, other laws and rules issued in accordance with them.

The conditions for the transportation of goods, passengers and luggage by certain types of transport, as well as the responsibility of the parties for these transportations, are determined by agreement of the parties, unless otherwise established by the Civil Code of the Russian Federation, transport charters and codes, other laws and rules issued in accordance with them.

Let's take another example. Limited Liability Company represented by a director acting on the basis of the Charter, hereinafter referred to as the “Customer”, on the one hand, Limited Liability Company “Max-Auto” represented by a director acting on the basis of the Charter, hereinafter referred to as the “Contractor”, on the other sides. Together and separately, the “Parties”, having intentions to cooperate on a stable basis and mutually beneficial terms, have entered into this agreement as follows:

a) the contractor undertakes, in the manner and under the conditions provided for in this agreement, to accept cargo presented by the customer for transportation along the routes. The customer presents goods for transportation based on the application. The application form is established by the customer and includes the following essential conditions of transportation:

-transportation route and detailed address of the loading and unloading place;

-required type of vehicles and their quantity;

- date and time of delivery of vehicles for loading and unloading;

- coordinates and telephone numbers of representatives of the shipper and consignee (specific persons responsible for loading and unloading and their telephone numbers);

-name and characteristics of the cargo, its gross weight and cost of the cargo;

-type of container and packaging and method of loading;

- a set of documents related to the transportation of goods;

-special conditions of transportation (if necessary, temperature conditions, method of securing the cargo and or its placement);

- freight rate (as agreed by the parties) for transportation and terms of payment;

b) transportation of goods under this agreement is carried out in intercity traffic across the territory of Russia. Road transportation of goods is regulated by the rules for the transportation of goods by road of the Ministry of Road Transport and the Civil Code of the Russian Federation;

c) the contractor carries out transportation using his own vehicles. It is allowed to carry out transportation under a subcontract of the contractor, while preserving the obligations assumed under this contract, both by the contractor and by his subcontractor, with the latter fulfilling all the provisions of this contract.

Under a construction contract, the contractor undertakes, within the time period established by the contract, to build a certain object on the customer’s instructions or to perform other construction work, and the customer undertakes to create the necessary conditions for the contractor to carry out the work, accept their result and pay the agreed price (Article 740 of the Civil Code of the Russian Federation).

A construction contract is concluded for the construction or reconstruction of an enterprise, building (including a residential building), structure or other object. The rules on construction contracts also apply to major repairs of buildings and structures, unless otherwise provided by the contract.

For example, HOA "Vesna", hereinafter referred to as the "Customer", represented by Chairman G.A. Shisterova, acting on the basis of the Charter on the one hand, and Limited Liability Company "Stroyinvest", represented by Director A.M. Kalinin, acting on the basis of the Charter, hereinafter referred to as the “Contractor”, entered into this agreement as follows:

a) the customer instructs and the contractor undertakes to perform a set of works for routine repairs of balconies;

b) the customer undertakes to create the necessary conditions for the contractor to perform the work, accept the result and pay for the work performed by the contractor;

c) the work is performed using the contractor’s materials and equipment.

Under a household contract, the contractor carrying out the relevant business activity undertakes to perform, on the instructions of the citizen (customer), certain work intended to satisfy the household or other personal needs of the customer, and the customer undertakes to accept and pay for the work (Article 730 of the Civil Code of the Russian Federation).

A household contract is a public contract.

Relations under a household contract that are not regulated by the Civil Code of the Russian Federation are subject to laws on the protection of consumer rights and other legal acts adopted in accordance with them.

An example of a household contract would be the painting of a brick house made from the customer’s material under the conditions stipulated by this contract.

A contract for the provision of paid services regulates relations related to the concept of service in a narrower sense than services provided under contracts of transportation, contract, transport expedition, bank deposit, order, commission. Under a contract for the provision of paid services, the contractor undertakes, on the instructions of the customer, to provide services in the form of carrying out certain activities, and the customer assumes the obligation to pay for these services. Such services are communication services, information services, medical, veterinary, auditing, training, consulting, tourism services and others (Article 779 of the Civil Code of the Russian Federation).

The above listed civil law agreements (and here are those that relate to labor relations) once again confirm the main difference between the two types of legal relations (labor and civil) - the attitude towards the labor process: if for the first type of legal relations the labor process itself (labor activity) is important , as well as the place and conditions for its implementation, then the latter is aimed at the result and quality of its implementation.

If we compare the method of labor and civil law, the main difference is that the labor method includes a specific combination of unity and differentiation of the legal regulation of labor. Since the essence of labor law is reflected in the general constitutional principles, basic labor rights and responsibilities of workers and employers, in the mutual provisions of the Labor Code of the Russian Federation and regulatory acts of labor legislation that apply to all subjects of the Russian Federation and to all workers.

Differentiation is based on the integrity of labor law and is expressed in the establishment of characteristic working conditions for certain categories of workers.

The difference between the method of labor legal relations and the civil one is also expressed in the combination of methods of legal regulation of labor. This is a combination of regulatory and contractual, centralized and local regulation. In civil law, the predominantly permissible method is used. It should be noted here that civil law considers the subjects of legal relations as equal parties, not subordinate to each other. In contrast, in labor law, the imperative method of legal regulation takes precedence.

In civil law, the parties to an agreement can assist each other in establishing any conditions in this agreement. And in labor law, one party has the right to accept working conditions, or may refuse to conclude an employment contract. That is, if an employee has entered into an employment contract with an employer, then he is obliged to accept the conditions provided for by law or internal labor regulations.

As a result, we can conclude that labor and civil legal relations have their differences and similarities in regulating labor relations. Labor relations are based on the process of labor activity, where place and working conditions play an important role, and subjects either agree or refuse to interact in the process of labor relations. Civil legal relations take into account only the results, and the employer and employee can agree on the conditions for achieving and selling the product of labor. In this case, civil law complements labor law, describing special cases of the relationship between employer and employee.

What guarantees of an employment contract are not provided for by the GPA?

Advantages of an employment contract over a civil law one

Considering that the legislator has provided for significant penalties for substituting concepts in the GAP relating to labor agreements, it is advisable to consider what is not included in these types of contracts, and how such norms affect the level of social protection of the employee himself.

Labor legislation, in contrast to civil law, provides for a number of benefits for the employee that determine the basis of labor relations. The following points stand out here:

• guaranteed wages at least twice a month;
• payment for the period of temporary disability (job is retained, sick leave is fully paid);
• if personal property (for example, a car) is used in the course of work, the employer reimburses the employee for the costs of its maintenance or operation;
• for those who are receiving education, it is possible to take out additional paid leave while maintaining their job;
• in the event of early termination of the contract at the initiative of the employer, the employee is entitled to compensation payments and other guarantees in the process of new employment;
• if an accident occurs during the performance of work due to the fault of the enterprise, all further compensation for damage and payment of compensation to the employee will be carried out by the employer;
• for the entire period of pregnancy and childcare, the employer is obliged to maintain a workplace for the employee;
• When an employee goes on a business trip, all associated expenses are borne by the employer.

Remember, if such norms are included in the agreement between the customer and the contractor, the contract can be reclassified from a civil law contract to a labor contract in court.