Договоры в трудовом и гражданском праве: вопросы единства и дифференциации

Abstract

It is noted that the employment contract has historically emerged as a civil contract. It is indicated that in Roman private law it was a contract for the employment of a free person’s labor force for a period under which one person, the locator (from Latin – landlord), placed at the disposal of another, the tenant, his labor force, his labor (operae) for a certain remuneration (hiring a worker, coachman, etc.). The features that distinguish the labor contract from civil law contracts, in particular, the fact that in an employment contract the subject is the work itself, and not its result, as well as the element of subordination of one party to the employment contract to the other. The cases of joint legal regulation of labor relations by the norms of labor and civil law are indicated. The article analyzes such issues as the construction of the so-called “labor agreement”, as well as the issue of representation in labor relations, in particular, cases of concluding an employment contract with a minor employee under the age of fourteen and limiting the civil capacity of an employee who, due to addiction to gambling, alcohol abuse or narcotic drugs, puts his family in a difficult financial situation. position. Cases are established when civil legal relations may arise between the parties to the employment relationship. It is noted that the legal regulation of social and labor relations should not be based on the independence of the person performing labor activity, as this is characteristic of the method of civil law regulation of social relations related to labor. The necessity of applying the developments of civil servants on the invalidity of transactions to labor contracts and the implementation of the principle of good faith, which determines, among other things, the inadmissibility of abuse of law, is indicated. The conclusion is substantiated that the establishment of unifying signs of labor and civil law contracts corresponds to the practice of applying labor law norms and contributes to the development of the science of labor law.