No. 4 (2020): Russian Law: Education, Practice, Research. 2020. № 4

TOPIC OF THE ISSUE: LABOR LAW AND SOCIAL SECUTIRY LAW

 

Kurennoj A. M.

Some Current Issues of Labor Relations Legal Regulation

The article examines the most important problems of labor relations from the point of view of the author.

First of all, attention is drawn to instability of legislation, in particular, introduction of numerous changes to the Labor Code of the Russian Federation. The subjects of legal relations are inclined to consider the Labor Code an «instruction», and the norms of the General Part often remain outside the law enforcement. Another problem is the absence of a norm regulating application of analogical reasoning in labor law. Another pressing issue is that Russian employers often ignore ethical principles, taking into account economic (primarily financial) interests to the detriment of the interests of employees.

The article analyzes the features of regulation in the Labor Code of the Russian Federation of the minimum wage, the difference between skilled and unskilled labor, the unwillingness of employers to include «northern allowances» in the wages of workers who receive the minimum wage. It is emphasized that the current situation testifies to non-observance of the principle of equal rights and opportunities for workers.

It is also studied which relations connected with the use of hired labor are included in the subject of the branch of labor law, taking into account the emergence of new forms of organization of the people’s work, especially against the backdrop of the coronavirus pandemic. The author believes that instead of introducing new changes to the Labor Code, it would be advisable to rely on the norm enshrined in it. According to the latter, regulation of labor relations should be carried out in a contract.

Keywords: hired labor, labor relations, legal regulation in the field of labor, principles of labor law, minimum wage, distance labor

 

Golovina S. Yu., Ramankulov K. S., Tomashevski K. L., Hasenov M. H.

Labour Law and Social Security in the EAEU States During the COVID-19 Pandemic: Experience of Belarus, Kazakhstan, Kyrgyzstan and Russia

The spread of the new coronavirus infection (COVID-19) has affected almost all areas of human activity, but one of the most vulnerable areas covers employment relations. Measures taken to prevent the spread of a dangerous infection entailed the suspension of many organizations, which caused negative consequences such as rising unemployment and falling living standards. Employers faced the need to «reformat» employment relations and organize labor processes in such a way as to ensure social isolation of employees, in particular, by transfer to remote work, despite the fact that this method of labor organization is not regulated in labor legislation. The EAEU member states challenged the tasks of strengthening social support for citizens, revising the system of measures for state benefits and payments.

Using the comparative method, the authors analyze specific legislative measures taken in the EAEU member states in order to prevent the spread of the pandemic and mitigate its consequences, reveal the problems of law enforcement due to defects in labor and social legislation. The article provides examples of adaptation of labor and social security legislation to the relations arising within the pandemic.

The authors conclude that COVID-19 has formulated a public request for the search for new legal mechanisms to enhance the labor mobility of the population and, to a certain extent, the transformation of modern employment relations.

Keywords: coronavirus infection (COVID-19), self-isolation, non-working days, remote work and telework, labor legislation of the EAEU countries, social aid

 

Ivanchina Yu. V.

Self-Identity of Labor Law in the Russian Legal System

In order to objectify forming of the branches of law it is necessary to use a systematic approach and theory of needs. To justify the existence of a branch of law as a system we should consider it in several aspects:

1) a system-component aspect, allowing to identify all necessary components – system-forming elements of the branch of the law, which should include its subject, method, functions and principles. The subject and functions constitute the core of the branch – the main system-forming elements. Method and principles are secondary;

2) a system-functional aspect, allowing to conclude that the functions, determined by the subject of the branch, that reflect the needs of the system itself, determining the directions of its functioning;

3) a system-structural aspect, allowing to identify the internal organization of the system. The structure implies stability of the system, ensured by the presence of static and dynamic elements in it. The functions are in dialectical unity with the subject of the branch and represent the static elements; the significant needs underlying them remain unchanged. The method and principles, depending on socio-economic, political and other factors, can be transformed;

4) a system-integrative aspect. A system-forming factor in the branch (i. e. the socially significant needs of its participants) ensures integration of all the elements of the system, their interaction within the structure, as well as the functioning of the system as a whole.

Consideration of labor law within these aspects shows that its identity is preserved.

Keywords: branch of law, labor law, backbone elements, subject, method, principles, functions, socially significant needs

 

Demidov N. V.

Informal Labor Relations as a Regularity of the Employment Development in Russia

The manifestations of informal labor relations in the Russian Empire, the USSR and the Russian Federation are compared. The author formulates the reasons for the historically stable nature of informal labor at all stages of the development of wage labor. Among the main reasons the following were named: the actual rapprochement between the branches of civil and labor law, legal illiteracy of the population, the prevalence of the benefits of non-compliance with the law over losses in the case of applying legal liability measures, employers’ desire to optimize production activities, the specifics of the capitalist market structure, the weakness of institutions protecting labor rights.

The author states, that it is impossible to eradicate the informal labor relations completely. The phenomenon can be undesirable and destructive from the point of view of the interests of the state. However, this does not negate its nature as an implicit element of the country’s social life. In conditions of alienation of a person from the state, the expansion of illegal labor is inevitable.

Keywords: history of labor law, informal labor relations, hidden employment, implementation of labor law, violation of labor law, anthropology of labor law

 

Lushnikov A. M.

Social Security Issues: An Interdisciplinary Approach

While discussing the interdisciplinary approach to the study of social insurance problems the author pays particular attention to the interaction of law and economy in a historical context and takes into account the data of sociology, political science, social psychology, etc. The types of social insurance are considered in accordance with the German model: industrial accident insurance, health insurance, pension insurance, medical insurance, unemployment insurance. It is concluded that social insurance needs comprehensive interdisciplinary research, especially since in the past, such research was a general rule, but at present it is only being revived. The author states that a one-sided economic approach to social insurance is fraught with adverse social consequences. At the same time, ignoring the economic justification of the social insurance system makes it unrealistic and does not allow the use of the corresponding mechanism of legal regulation. The article considers the views on social insurance of such prominent economists as L. Mises, F. A. Hayek, H. Huerta de Soto.

In the author’s opinion, the state system of compulsory social insurance passed the test of time, under which deductions are made mainly by emploers, but with the participation of workers and the state, and the size of payments is differentiated and depends on the size of earnings, the size of insurance payments, insurance experience, the nature of labor. Such a system can be supplemented by internal and personal insurance. The position on the redistributive nature of social insurance and its compliance with the principles of justice, equality, freedom and humanism is defended.

Keywords: social insurance, social security, interdisciplinary approach, interaction of law and economy, demographic aspects of social insurance

 

Istomina Ye. A.

Protection from New Social Risks: Issues of Interdisciplinary Research

Increased attention to risks in all areas leads to the fact that this category becomes a permanent object of scientific research. Social risk is one of the fundamental categories of social security law, which is recognized by almost all specialists in this field. The article analyzes the interaction of various social sciences in determining new social risks. The author proceeds from an understanding of a social risk as a phenomenon developing in dynamics. The first two stages of a social risk – its factors and causes – stem from the changes in economic, political, social life, development of technologies and their impact on people. The third stage – adverse effects of a social risk – is more stable. Discussions around the recognition of new social risks and protection against them are actively conducted in science, and their list may vary in different countries and regions. In many countries, the issue of protection against social risks caused by the transformation of the labor market is currently being discussed (job instability, which leads to a shift in emphasis in the combination of labor – family responsibilities, development of new activities that present new requirements for the qualifications of workers).

The article substantiates the conclusion that the recognition of new social risks, protection against them, including by means of social security law, is preceded by the work of specialists in the field of sociology, economics, psychology, political science, as well as jurisprudence. Based on a comprehensive interdisciplinary scientific interaction, a new social risk should be identified and investigated properly.

Keywords: causes and factors of social risks, new social risks, social security law, labor and family responsibilities, social dependence

 

Fedorova M. Yu.

Social Obligations in the Legal Science, Law and the Judicial Practice of the Constitutional Court of the Russian Federation

The modern social and political practice uses the term «social obligation» to designate the responsibility of the state and other subjects (for instance, employers) to provide social security benefits (assistance, social safeguards) to the individuals. This term is used in the statutes, acts of social partnership, and acts of the Constitutional Court of the Russian Federation. This makes the issue of defining the term and standardizing its utilization relevant. Consequently, we may complete the objective of improving the conceptual system of Russian legal science and social security laws. Identifying the legal nature and the content of social obligations may contribute to the extension of social guarantees.

Applying the variety of research methods (analysis, synthesis, systematic and formal methods, etc.), the author formulates the basic characteristics of social obligations in its correlation with contractual and public obligations. The legal nature of the social obligation is identified through its relevancy to social risk acceptance. The social risk is accepted by establishing (either in the statute or contract) the obligation to compensate negative consequences of social risk materialization by providing social security. The article offers the classification of social obligations depending on the status of the obligation bearer, the legal authority and the object.

The author points out, that the Constitutional Court of the Russian Federation contributed immensely to forming of the social obligations concept. The Court has developed universal criteria used to assess the permissibility of changing and terminating the social obligations of the state. The state has recognized the named criteria in law while providing the reforms of social security benefits. Later these requirements were established into social security laws in Crimea and Sevastopol.

The understanding of social obligations in its’ correlation with social risks might be a promising area of research in social security law. In the context of the rulings of the Constitutional Court of the Russian Federation, this approach contributes to improvement of social security law and its enforcement practice.

Keywords: social obligations, social risks, social security, parties to social obligations, classification of social obligations, the Constitutional Court of the Russian Federation

 

Balitskiy K. S.

Sectoral Affiliation of a Targeted Learning Agreement: Theoretical and Judicial Issues

The study of the sectoral nature of the target learning agreement is relevant due to the current uncertainty in the legal regulation of such an agreement, the need to determine the period for applying to the court with a statement of claim for recovery of student expenses, as well as recently formulated position of the Supreme Court of the Russian Federation on this issue. The purpose of this article is to study target learning agreement and apprenticeship contracts, to identify similarities between them and their distinctive features. The author uses formal logical and comparative legal methods, system analysis and others.

The legal acts governing the conclusion, amendment, termination and execution of an apprenticeship contract, a targeted training agreement, courts decisions on the recovery of money spent on their training from students were analyzed (it was established that the position on the identity of these agreements prevails in judicial practice). A conclusion was drawn that it is impossible to equate them and recognize one of them as another. The author points out that a targeted training agreement is a structure located at the intersection of civil and administrative law.

Keywords: target training agreement, apprenticeship contract, subject of labor law, training, recovery of training costs, judicial practice

 

Okulova P. A., Tolstykh O. A.

The Issues of Providing Additional Vocational Education of Pedagogical Workers

The aim of the article is to highlight the key problems of providing additional professional education and to identify possible solutions to them based on the laws of the Russian Federation. Analysis of the post-graduation services market allowed the authors to raise a number of questions related to regulation of the rapidly developing market of educational services, the question of acceptabi-lity of the use of distance education technologies for further training of employees, where not only updating knowledge is required, but also mastering certain skills and abilities (including manual ones). The authors also highlight the problem of regulating the frequency of professional development and the resulting mutual obligations of the employee and the employer.

Particular attention is paid to the problem of eliminating periods of advanced training in the calculation of general and special pedagogical work experience. According to the authors, there is a need for legislative consolidation of the norm on including these periods on the basis of extensive judicial practice as a source of law.

Keywords: legal educational framework, labor relations, additional vocational education of employees, additional professional education, experience rate, distant learning technologies

 

Salikova N. M., Batukhtina E. M.

Electronic Document as a Proof: Issues of Application while Considering the Labor Disputes

Some issues of electronic document circulation for labor law relations are considered in the article, as well as certain options of producing electronic document in court available to the labor relations participants. New coronavirus infection (Covid-19) pandemic reality and the countermeasures of the government had extremely increased the significance of digital technologies’ legal regulation.

Special relevance of the issue under research is caused by enactment on the 24^th April 2020 of the Federal Law providing the basis for the experiment of electronic documents concerning work implementation. The law places an obligation upon the employer to provide electronic interaction with indispensible observance of the rights guaranteed for the employees (ex. during local normative acts’ revision, information system development, etc.). Application of the electronic documents in general and electronic documents created within employer’s system of electronic documents circulation in particular as an evidence in court is of particular interest. An analysis of the judicial practice concerning labor disputes in which specifically electronic documents were taken into consideration as evidence while resolving the case is provided in the article.

Keywords: electronic documents, individual labor disputes, averment, circumstance in proof, judicial practice

 

Leskina E. I.

Artificial Intelligence and Labor

The rapid development of artificial intelligence raises many questions regarding its legal status, capabilities and ethical limitations. All this is especially relevant for the world of employment, because the society expresses its deepest fears in connection with the potential unemployment due to introduction of artificial intelligence in life. The purpose of the paper is to identify the place of artificial intelligence in labor market and possible areas of its application, to consider the main problems associated with the regulation of the labor market, as well as the endowment of the «smart» robots as a subject of law. The methods used are analysis and synthesis, deduction and induction, comparative legal, historical methods.

The possible areas of application of artificial intelligence are very diverse and expand every year. In general, digital technologies and especially artificial intelligence will contribute to the automation of almost all processes, improving the quality of the services provided, goods manufactured and work performed.

The author considers the legal and scientific definition of artificial intelligence, the distinction of this concept with related ones, the division into «weak» and «strong» artificial intelligence, the position of the European Parliament on endowing «smart» robots with the status of an electronic personality, the position of Russian scientists, the possibility of endowing artificial intelligence, «smart» robots with the status of subjects of labor law, as well as the problem of potential unemployment caused by the widespread use of artificial intelligence.

Keywords: artificial intelligence, robotics, digitalization, labor relations, unemployment, tortability

 

Serova A. V., Serov S. I.

The Issues of the Legal Status of the Self-Employed in the Russian Federation and the Republic of Kazakhstan: Tax-Legal and Socio-Labor Law Research

The regulation of the legal status of the self-employed in Russia and Kazakhstan is studied. The research is based on an interdisciplinary approach and was conducted using the formal legal method and the method of comparative law. The article considers the concept of self-employed in the broad and narrow sense, its generic and specific characteristics, an attempt is made to classify the self-employed, the legislative specifics of their legal status is determined, including the special tax regimes «Professional income tax» and «Single aggregate payment», the problems of social and labor-legal status of the self-employed are revealed.

It has been established that both in Russia and Kazakhstan there is no common definition of the term «self-employed» in all the branches of legislation, its features are ambiguous, and as a result, it is very difficult to conduct a normative classification of the self-employed. The disordered legal regulation of the legal status of the self-employed causes unresolved problems related to their social security, labor protection, working time and rest time, wages, collective rights and other issues of a social and labor nature.

Keywords: self-employed, independent employee, scope of the labor law, non-standard forms of employment, quality of working life, special tax regime

 

Zaitceva L. V., Kursova O. A.

Legal Regulation of Drivers Labor in the Risk Management System in the Field of Road Safety

The development of a risk management system in the field of road safety is intended to increase safety on the roads of Russia. Like any system, it involves an integrated approach to the development of the control methods for all elements. It seems that when developing new concepts in this area, insufficient attention is paid to the issue of the balance and interdependence of administrative and labor law regulation of the activities of motor vehicle drivers. Effective legal regulation of driver labor is an integral element of ensuring road safety. Its imbalance with the norms of administrative law, gaps and internal contradictions increase the risks for road safety.

The main methods used to study current legal conditions were a method of expert assessments and comparative legal analysis. The necessity of an integrated approach to achieve optimal legal impact on labor relations with drivers of vehicles is substantiated. The features of a risk-oriented approach to legal regulation were highlighted. The reflection of the idea of minimizing risks in the current norms of labor law was explored. The general rules for the professional selection of drivers, the standardization of professional requirements for them, and flaws that need to be remedied were identified. The problems of inconsistent legal regulation of working hours and rest time of drivers were described.

Keywords: features of drivers labor regulation, working time and rest time, professional training, labor protection, road safety, risk management, risk-oriented approach to legal regulation

 

Popova D. G., Kichigin S. V.

On the Problem of the Application of the Professional Standard «Athlete»

The present work is devoted to the study of the problem of applying the qualification requirements of the professional standard «Athlete» to minors employed in sports organizations. The authors have revealed the discrepancy between the requirements of the professional standard and the special norms of the Labor Code of the Russian Federation, regulating the features of the work of athletes.

By virtue of the direct instructions of the law, the qualification requirements of the professional standard «Athlete» are mandatory for persons employed in the field of youth sports, including minors. The restrictions related to work in this area, namely, the prohibition on the admission to work in this field of persons who have or had a criminal record or who have been prosecuted (with the exception of persons whose criminal prosecution has been terminated for rehabilitative reasons), have caused not only the need for the applicant to provide a certificate of lack of a criminal record and (or) the fact of criminal prosecution, but also the mandatory conformity of the job title in accordance with the current professional standards or qualification handbooks, as well as the qualification requirements to the candidates in the relevant professional standards or qualification reference books.

The qualification requirements of the professional standard «Athlete» are objectively impracticable for some minor athletes. The controversial requirements of the professional standard in terms of education for the candidate for the position are not caused by real need. To solve the identified problem, the authors propose to review the qualification requirements for education in the abovementioned professional standard.

Keywords: professional standard, labor law, labor legislation, employee qualifications, business qualifications, qualification requirements

 

Voitkovskaya I. V.

«The Golden Parachutes» in the USA and Russia:How It Works?

The article provides an overview of the development of legislation, science and practice of the United States of America on the establishment and payment of compensation to CEOs in case of early termination of employment relations in connection with the takeover of a corporation or the decision of the owner – golden parachutes. The development of legislation and practice of payment of similar compensation in the Russian Federation is analyzed. Using a comparative legal method, the author concludes that the labor legislation of the Russian Federation does not provide a concise and complete definition of compensation for managers and other managers, nor guidelines for distinguishing such compensation and severance payments. In addition, Russian labor legislation does not set a legal framework for establishing payments to dismissed managers and other employees, which creates problems in law enforcement.

Having studied the USA practice and the practice of the Constitutional Court of the Russian Federation the author points out that severance payments are distinct from executive compensation and for the purposes and on the grounds of payments and their size explains the special features of golden parachutes, features a career and the status of the leader, his reputation and peculiarities of the instability of his employment, taking into account the right of the owner to dismiss without cause.

Keywords: golden parachutes, CEOs compensations, severance payments, termination of employment contract, employment contract

 

Vedeshkina T. P.

Religious Organisations Internal Rules as an Unconventional Source of Labor Law

With the development of labor law relations, new labor law sources emerge which are not considered as traditional ones but are widely applied in labor and associated relations. The author points out that neither legislation nor doctrine provides a unified definition of the term «religious organizations internal rules», while such rules influence on nearly each labor law institute. Moreover, the author examines the religious organizations internal rules nature, practice of their implementation and explains why these rules cannot be considered as a labor law source mentioned in the Labor Code of the Russian Federation.

A conclusion is drawn that religious organizations internal rules have a significant impact on the dynamics of labor relations in such organizations and that is why such rules should be regarded as labor law sources. However, as religious organizations internal rules are not established in the Article 5 of the Labor Code of the Russian Federation, nowadays they can be considered only as a specific and unconventional labor law source.

Keywords: religious organization, religious organizations internal rules, employee, employer, labor law sources, unconventional labor law source