Getting a job, every citizen must conclude an agreement on the implementation of labor activities. But you can conclude a standard labor contract, or civil law contract. What is a labor agreement (civil contract), what are its advantages and disadvantages, and what is the mechanism of conclusion and termination?
The concept
A civil contract is an agreement:
- between several individuals;
- between an individual and a legal entity;
- between several legal entities.
According to this document, interaction appears, is supplemented, changed or stops, as well as the mutual responsibilities of the two parties.
A civil law agreement (or labor agreement) is an agreement that is concluded in accordance with the norms of the Civil Code of the Russian Federation and does not contradict the legislative norms.
Kinds
A civil contract has a number of common classifications. Let's consider them in more detail:
1. On the legal side:
- consensual (rights and obligations appear after the parties reach consensus; for example, a contract of sale and purchase);
- real (rights and obligations appear after a certain agreement and transfer of things; for example, a loan agreement, a contract for the carriage of goods).
2. By relations between the parties:
- paid (receiving payment);
- gratuitous (no fee).
3. According to the parties' rights and obligations:
- unilateral (on the one hand only rights, and on the other - only obligations; for example, a loan agreement);
- bilateral (each side has both rights and obligations).
4. On the interests of the conclusion:
- in the interests of the parties;
- in the interest of a third party.
5. Based on the conclusion:
- free (at the discretion of the parties);
- Mandatory (example: insurance contract).
6. By the presence of a legal relationship between the contracts:
7. Legal orientation:
- basic (rights and obligations arise due to the transfer of something, performance of work, etc.);
- preliminary (the agreement is signed taking into account the conclusion of the contract in the future).
8. By the number of parties:
9. If possible, amend or supplement:
- mutually agreed upon (conditions established by all parties to the agreement);
- affiliated (conditions are established by one party).
10. According to the object:
11. Regulated activities:
Difference with employment contract
The civil law employment contract has a number of differences from the usual labor contract common to all. The main differences include:
- the parties to the labor agreement are the customer and the contractor, and the parties to the contract are the employer and employee;
- civil law relations presuppose the end result as their goal, and labor relations are a process of the employee’s labor activity;
- When signing a civil law agreement (what GPA is considered earlier) with an individual, it should be understood that the guarantees provided by law do not apply to him (these are guarantees for the payment of salaries, for the payment of sick leave or leave, for combining work with studies, etc. P.);
- the executing party of the civil law contract independently determines the procedure for the performance of duties, the labor contract requires compliance with the internal routine of the company and the established schedule;
- in case of an employment contract, the employee must independently fulfill his duties, the civil contract of the service allows engaging third parties in the work;
- the executing party of the labor agreement receives a remuneration that is paid only after all work has been completed, while a citizen working under a labor contract receives a salary at least several times a month;
- employee liability is provided by law, and contractors are required to not only pay a fine for damaged property, but also reimburse its value;
- an employment contract may be urgent in certain cases, a civil law announcement is concluded for a specific period of time (a civil law agreement is concluded for a year or for a shorter / longer period, depending on until the work is done);
- at the conclusion of the contract, the employee becomes subordinate, and the principle of equality of arms is present in the labor agreement.
The following is a civil contract with an individual. A sample of it looks as shown below.
Agreement with an individual
A civil contract with an individual implies the following:
- contract agreement;
- contract for construction work, repair work;
- contract for design and survey work.
These types of agreements imply the signing of a document on the work performed. Another type of employment agreement with an individual is a contract for the provision of services for a fee. A contractor performs a service (medical, informational, veterinary, consulting, auditing, etc.) for which the customer pays a fee. In this case, payment is made upon signing the acceptance certificate.
Considering the presented types, it can be said that individuals at the conclusion of an employment agreement do not receive compensation, guarantees or benefits provided by law. The concluded civil law contract by an individual (year 2017) may not provide for the formalities adopted, and the organization has the right to assign pecuniary damage (if any) to it with the payment of a forfeit or lost profit.
Agreement with a legal entity
The conclusion of a civil contract with a legal entity may be as follows:
- In the form of an order. In essence, this is the same representation contract concluded by the parties to perform legal actions on the basis of a power of attorney, which determines the scope of responsibility and authority. The attorney assumes the responsibility to carry out the foreseen actions that have jursala in relation to third parties on behalf of the principal and at his expense. As a result of fulfillment of obligations, the attorney receives a fee, which is agreed upon in advance by agreement.
- Agency service. In this case, the principal entrusts the execution of the assignment entrusted to him with a third party - an agent, for an appropriate fee. Execution occurs on behalf of the principal and at his expense. Here, the contract between the indicated parties takes the form of an assignment, where its scope, terms of implementation and order are indicated.
- Commissions. Here, the commission agent must carry out a certain number of transactions on his behalf. Orders for the implementation of transactions are given by the reserve (client).
IP agreement with an individual
The signed sample of a civil law contract by an individual with a private entrepreneur has one very important feature - the employee is fully responsible for the final result.
The single agreement form has the established form and contains all the conditions of relations between the parties. Moreover, he protects the interests of the entrepreneur. Wages are issued directly to the employee, and the employer does not make any transfers to social funds, documents on labor protection and safety are not signed, the employee does not save a place and salary, if he is sick, vacation pay is not accrued, and the employer is not responsible for the delay in salary.
Agreement with a foreign employee
If it becomes necessary to conclude a labor agreement with a foreign citizen who does not have a visa, then this fact will not be contrary to the law if the foreign worker has permission to perform labor activities. A civil law contract (what is it to look at the definition) with a foreigner will not differ from the generally accepted one, but after its execution it is necessary to inform the FMS, tax and employment services about this fact.
If a foreign citizen arrives in the country with a visa, then the peculiarities of the GPA conclusion are in obtaining permission to attract IRS. A foreigner is not liable, and is not disciplined, he is not paid benefits, sick leave or vacation and business trip.
Conclusion
The civil contract, a sample of which will be presented below, has a specific order of conclusion. This process is associated with the achievement of agreements on all material conditions and if at least one of them has not reached consensus, the agreement is considered not drawn up.
According to the Civil Code of the Russian Federation, the contract is concluded through the submission of an offer (the initiative of one of the parties to conclude the contract) and acceptance (approval of this proposal by the other party).
Consider the signs of the offer:
- the proposal should be clear and indicate the intention of the person to conclude an agreement;
- the proposal should include all the essential conditions;
- The offer must be addressed to a specific person or persons.
If at least one condition is not fulfilled, then this is not considered an offer, but is just a challenge to it, and this does not oblige us to anything.
The contract is considered executed when the offeror receives an acceptance. Acceptance, in turn, is considered the unconditional consent of the second party to accept the proposal.
In order for the actions to be considered acceptance, it is enough for the second party to begin to fulfill the obligations specified in the offer.
Consider the signs of acceptance:
- the offer has been accepted in an unconditional form, without making counter offers;
- silence is a sign of acceptance of the offer (silent acceptance);
- all actions must be performed by the person who received the offer and within the time period specified in it.
Two forms of the offer are accepted:
- written (the contract is considered executed when the acceptance is received before the end of the period established by law, and if this period is not set, then within a certain time);
- oral (the contract is concluded if there was an immediate statement of acceptance on the other hand).
The form of the civil contract itself is also classified in different ways. She may be:
- Written. In this case, a document is drawn up, which is signed by the two parties, and the documents are exchanged. The document must be signed by the person who has the right to do so. In some cases, the use of a digital signature is possible.
- Oral. This form is relevant for those documents that can be legally concluded orally or have not established a written form for them. Any transaction may be concluded orally, with the exception of those where non-compliance with the written form entails the invalidity of the document.
- Written in notarial form. This form is mandatory in cases established by law. But nowadays, this form is increasingly being replaced by state registration.
Non-compliance with any form can lead to a wide variety of consequences. For example, if the usual written form is not followed , then in disputed situations, the parties are not entitled to refer to the testimonies of witnesses, and if the forms established by law are not followed, the transaction is considered invalid.
Termination
According to Art. 450, p. 451, Art. 452, Art. 453 of the Civil Code of the Russian Federation, the action of the GPA may be terminated and the following factors may serve as the basis for this:
- Mutual consent of both parties on a matter not provided for by law;
- unilateral termination of the agreement by the contractor, if this does not contradict the law, or was done by agreement of the parties;
- involvement of the courts, if required by one of the parties (here the reason may be a violation of the terms of the contract, a violation that entailed significant damage to one of the parties);
- amendment of the civil law contract, as well as those circumstances that were the reason for the conclusion of this agreement.
The contract is considered terminated when both parties signed a document on this fact, or if the termination passed through the court, then from the moment the court decision was made.
Positive and negative sides
Civil contract (what is it, we found out) has positive and negative sides.
The positive aspects include:
- the contractor performs certain work without following the internal routine;
- no disciplinary action;
- civil law relations operate on the principle of equality of arms;
- the customer is exempted from the obligation to pay various compensations and provide guarantees.
The negative sides include:
- the employee does not receive any guarantees that the employment contract provides;
- the contractor must provide himself with the necessary working conditions;
- the ability to hire an artist who is not qualified, which will entail negative consequences;
- if the civil contract is incorrectly executed, it can be regarded as a regular labor contract (in this case, you will have to reissue the document, introduce the employee to the staff and, in addition, pay legal costs).