Problems of differentiation of labor and civil relations at the level of doctrine and regulatory practice

Abstract

Problem setting. The imperfection and obsolescence of national labor law raises a range of legal issues related to ensuring the proper implementation of the constitutional right to work and a number of social guarantees for workers’ rights. These problems include, in particular, the widespread practice of civil-law labor substitution, which is usually manifested through the conclusion of so-called civil-law contracts between the employer and the employee, rather than the proper design of relations in the manner prescribed by the Labor Code of Ukraine. The purpose of the research is to reveal the problematic issues of the distinction between labor and civil relations, both from the point of view of the existing doctrine of labor law, and through the prism of the existing rulemaking practice, aimed at improving national legislation on labor. Analysis of resent researches and publications. The issues of the distinction between labor and civil relations have become the subject of scientific analysis in the writings of such scientists as O.V. Zabrodina, L.O. Zolotukhina, M.I. Inshin, R.A. Maidanik, S.M. Prilipko, Ya.V. Svichkaryova, D.I. Sirokha, N.V. Fedorchenko, OM Yaroshenko and others. At the same time, these issues require further research in order to develop comprehensive recommendations aimed at improving labor law. Article’s main body. Among the variety of means of departure from classical labor relations, the two most common types of registration of relations between the employer and the employee in the civil plane can be distinguished: 1) conclusion of a civil contract (provision of services, contract, employment agreement) with an individual; 2) concluding a civil (economic) contract with an individual entrepreneur. The main reasons for the emergence of the practice of changing labor relations in civil law should be recognized as follows: obsolescence of Labor Code of Ukraine, the concept of which does not fully correspond to the current realities of the labor market; the need to optimize the tax burden on employers; lack of definition of labor relations in the legislation. Existing attempts to combat these negative phenomena, in particular the bill proposed by the Ministry of Social Policy of Ukraine in 2019, raise many objections because they are unable to systematically resolve the problem of the “shadow labor market”. Conclusions. The problem of the distinction between labor and civil relations is of great theoretical and practical importance and needs to be addressed promptly at the legislative level, in particular through the consolidation in the legislation of a clear list of features of labor relations, as well as the definition of types of work, the relationships within which can be solved exclusively at the level. In this context, it is necessary to adopt a new Labor Code, the provisions of which will meet economic realities and current labor market conditions.