Злоупотребление правом со стороны работника: типичные случаи судебной практики

Abstract

The article draws attention to the gap in the legal regulation of relations on the abuse of subjective labor rights by the employee. As a source of information, acts of official interpretation, judicial acts on cases of abuse of labor rights were used. The most typical, frequently encountered examples of abuses from the point of view of domestic courts are examined – disproportionately large severance pay, employee evasion from getting a work book, hiding a certificate of incapacity for work, hiding union membership. A proposal is made to improve enforcement in the field of abuse of labor rights by issuing an explanation at the level of the Supreme Court of the Russian Federation. Two criteria are proposed for recognizing an employee’s act as an abuse of subjective law: informational and conscious. In the first case, the party to the employment relationship has information that is not communicated to the other party, and subsequently appeals to them in order to exercise its right. In the second, circumstances should be recognized as an abuse of labor rights in which the party knew that it had a subjective right, but did not use it to further derive benefits.