The administrative and legal framework for regulating economic relations is: the Constitution of the Russian Federation Art. 71 (Federal State Property Management; Establishment of the Fundamentals of Federal Policy and Federal Programs in the Field of Economic Development; Establishment of the legal foundations of a single market; Financial, currency, credit regulation; cash emissions, fundamental policy; federal economic services; Foreign economic relations of the Russian Federation; definition of the status of an exceptional economic zone; official statistical and accounting
accounting), Art. 72. (questions of ownership, use and disposal of land, subsoil, water and other natural resources; disarming of state ownership; environmental management; coordination of foreign economic relations), Art. 73, concerning objects outside the maintenance of Art. Art. 71 and 72, the subjects of the Russian Federation in the field of economic relations have all the completeness of state power, Art. 114 The Constitution of the Russian Federation (the powers of the Government of the Russian Federation in the economy) and other articles on the formation and development of the economy in the country, the Federal Constitutional Law, taken from 17.12. 1997 "On the Government of the Russian Federation", numerous federal laws, among whom adopted federal law of 11.06.2002 No. 66-ФЗ "On ratifying the Convention on the Privileges and Immunities of the Eurasian Economic Community" is of great importance. It is still relevant to the operational legal regulation of the economy's issues by decrees of the President of the Russian Federation, the regulations of the Government of the Russian Federation and the regulatory acts of FOOV.
The main regulatory acts that put the start of radical economic changes in the country can be attributed: the laws of the RSFSR "On Enterprises and Entrepreneurial Activities" dated December 25, 1990; 1; "On the privatization of state and municipal enterprises in the RSFSR" 2; RSFSR Law (1991) "On Investment Activities in the RSFSR"; "On the privatization of the Housing Fund in the Russian Federation" from 04.07.1991 3 in the current. ed. of 05/20/2002 No. 55-FZ; Law of the RSFSR "On the Protection of Consumer Rights" 07.02.1992 as amended 09.01. 1996 No. 2-ФЗ S M and add. from 17.12. 1999; "On competition and restriction of monopolistic activities in commodity markets" 4; "On Commodity Exchanges and Exchange Trade (1995)"; "On financial and industrial groups (1995)"; "On agricultural cooperation" (1995); "On the securities market" (1995); "On state registration of rights to immovable property and transactions with it" of July 21, 1997 No. 122-FZ in the edge. 11.04. 2002 No. 36-FZ; "On the privatization of state and municipal property in the Russian Federation" dated 21.12. 2001 M178-FZ; "On investment funds" of November 29, 2001 No. 156-ФЗ; "On the State Land Cadastre" from 02.01. 2000; "Land Code of the Russian Federation" of October 25, 2001; "On the introduction
2 Air Force RSFSR. 1992. KS 28, Art. 1614.
3 Air Force RSFSR. 1991. No. 28, Art. 959; 2001. No. 21. Art. 2063.
4 SZ RF. 1995. No. 22, Art. 1977.
resentment of the 3rd part of the Civil Code of the Russian Federation "of November 26, 2001 No. 147-FZ; "Civil Code of the Russian Federation (part 3) dated November 26, 2001 No. 146 - FZ; "On Joint-Stock Companies" dated December 26, 1995 No. 208 - FZ in the current ed. from 07.08.2002 No. 120-FZ; Decrees of the President of the Russian Federation "On measures to ensure the rights of shareholders" of 27.10 1993 No. 1769 with a change, and add. from 31. 07.1995; "On the authorized body to counteract the legalization (laundering) of the income obtained by criminal means" of 01.11.2001 No. 1263; Decisions of the Government of the Russian Federation of 21.08.2001 No. 615 "On approval of the Agreement on the Support and Development of Small Entrepreneurship in the CIS member states"; "On state support for insurance in the field of agro-industrial production" of 01.11.2001. No. 758 and other regulatory acts that allow the state with legal methods to regulate economic relations in all economic industries and spheres.
To the system of management bodies in the field of economic regulationyou can include the following main ministries:ministry of Economic Development and Trade; industry, science and technology; by atomic energy; property relations; natural resources; communication paths; transport; Agriculture; energy; finance; state Committee.on antimonopoly policy and support of entrepreneurship; State Committee for the Construction and Housing and Communal Complex; federal Serviceland cadastre et al.
The central intersectoral authority of the executive power exercising public administration in the field of economy is the Ministry of Economic Development of Russia.
Ministry of Economic Development and Trade of the Russian Federation (Ministry of Economic Development of Russia)it is the federal executive body that develops and implement state social and economic policies, including a unified state trade policy, identifying the ways of economic development and methods of its regulation, providing socio-economic progress and sustainable development of Russia.
The Ministry of Economic Development and Trade of the Russian Federation is commissionerfederal executive authority in the field:
1) export control, which is very important in the conditions of "transparent" borders;
2) control over competitions for placing orders for the supply of products (goods, works, services) for state needs and coordinating them;
3) licensing of certain types of activities;
4) accreditation of representative offices of foreign legal entities engaged in tourism activities, branches of foreign legal entities.
The Ministry of Economic Development and Trade of the Russian Federation operates directly and through its territorial bodies - authorized ministries in the subjects and individual regions of Russia (hereinafter referred to as authorized) and the management of the State Inspectorate for Trade, the quality of goods and the protection of rights
consumers.
The ministry operates the activities of representative offices of the Russian Federation for trade and economic issues in foreign countries and representative offices of the Ministry in foreign countries on tourism issues, their staffing and financing, and together with the Ministry of Foreign Affairs of the Russian Federation - the management of the activities of trade and economic departments of the Russian Embassies in foreign countries And their personnel provision.
The ministry sends its representatives to the permanent missions of Russia under international organizations in coordination with the Ministry of Foreign Affairs of the Russian Federation and implements the operational management of these representatives.
Representative offices of the Russian Federation for trade and economic issues in foreign countries, representative offices of the Ministry in foreign countries on tourism issues, as well as representatives of the Ministry in the permanent missions of the Russian Federation under international organizations, constitute the structure and states of the Ministry of the Ministry.
The main tasks of the Ministry of Economic Development and Trade of Russia are:
1) the development and conduct of public policy aimed at ensuring the sustainable socio-economic development of the Russian Federation;
2) Development of proposals for the State Foreign Economic Policy of the Russian Federation and its implementation, the implementation of state regulation of foreign economic activity;
3) analysis of the economic situation of the Russian Federation and the definition on its basis of the principles and methods of regulation in the socio-economic sphere;
4) the development of principles, methods and forms of implementation of state structural and investment policy in the Russian Federation;
5) Economic substantiation of federal state needs, including expenses related to the provision of defense and state security of the Russian Federation.
The Ministry of Economic Development and Trade of the Russian Federation in accordance with the tasks assigned to it implements main functions:
1) develops with the participation of interested federal executive authorities, the executive authorities of the constituent entities of the Russian Federation, government forecasts of the socio-economic development of the Russian Federation, the subjects and regions of Russia based on the analysis of the Russian economy and the trends of its socio-economic development of economic processes;
3) Develops projects of programs and action plans of the Government of the Russian Federation on the socio-economic development of the country, as well as forecast and analytical materials in this area;
4) develops and introduces projects of legislative and other regulatory legal acts to the Government of the Russian Federation, and also develops and submits in the prescribed manner the proposal to improve the legislation of the Russian Federation on issues related to the ministry;
5) takes part in the preparation of proposals on the general directions of financial, budgetary, tax, monetary, currency and customs and customs-tariff policy of the Russian Federation and performs other functions.
Ministry of Economic Development and Trade of the Russian Federation for the implementation of its functions.
1) request in the prescribed manner in the federal executive bodies, the executive authorities of the constituent entities of the Russian Federation, local governments, legal entities and individuals the necessary information and materials;
2) regulatory legal acts in the prescribed manner within its competence;
3) attract experts in the prescribed manner, enter into contracts with organizations and citizens to fulfill work in accordance with the competence of the ministry;
4) to make in the prescribed manner within their competence proposals for candidates of representatives of the Russian Federation in the management bodies of joint-stock companies whose shares are enshrined in federal property;
5) to carry out within its competence, together with the Ministry of Foreign Affairs of the Russian Federation, the selection of candidates for replacing posts in international trade and economic organizations;
6) to interact within its competence with state, interstate bodies and organizations, including associations and unions, officials and individuals both in the Russian Federation and abroad;
7) In its composition, an independent central encryption authority and a special communication network and performs other powers.
The system of government economy is currently, mainly a decentralized system of bodies within the federal executive authorities, which carry out federal programs in the industries entrusted to them.
In the subjects of the Russian Federation there are relevant economic management bodies.
The administrative and legal basis for regulating economic relations over the past more than 10 years amounted to numerous regulatory and legal acts (the decrees of the President of the Russian Federation were initially the predominant, then these relationships were fixed by federal laws), significantly changed economic relations in the country, which affected all spheres of life, and First of all, radical changes occurred in the organizational and legal sphere of public administration.
The issue of public administration in the Constitution of the Russian Federation and federal laws is regulated in general terms, for example, (Art. 32 "Citizens of the Russian Federation have the right to participate in the management of state affairs ..." and paragraph D) Art. 71 "Federal Property Management" of the Constitution of the Russian Federation, which, in our opinion, has adversely affected the general trend in the field of economic reform, since the administrative
nEE RIGHT Only the last few years begins to work on the resolution of this tremendous problem.
The main legal acts that radically changed the economy of our country should be attributed: the laws of the RSFSR "On enterprises and business activities" 1; "On the privatization of state and municipal enterprises in the RSFSR" 2; Federal laws: "On competition and restriction of monopolistic activities in commodity markets" 3; "On natural monopolies" 4; "On state support for small entrepreneurship in the Russian Federation" 5; "On insolvency (bankruptcy) 6; "On Joint-Stock Companies" dated 26.12. 1995 in the current ed. 07.08.2001; "On the securities market" 7; Civil Code 1, 2 and 3 part adopted on November 26, 2001 No. 146 -fz, special importance for the economy have adopted federal laws: "On the State Land Cadastre" No. 28-FZ from 02.01.2000; "On the delimitation of state ownership of land" of July 17, 2001 No. 101 - FZ; "Land Code of the Russian Federation" of 25.10. 2001 No. 136-FZ and "On the introduction of the Federal Law of the Land Code of the Russian Federation of October 25, 2001 No. 137-FZ, Code of Civil Procedure of the Russian Federation of November 14, 2002 No. 138-FZ and many other regulatory acts, Allowing the state with legal methods to regulate economic relations in all economic sectors and spheres. October 30, 2002 Adopted Federal Law No. 127-FZ "On Insolvency (Bankruptcy)" and on its basis, the Decree of the Government of the Russian Federation dated December 30, 2002 No. 855 "On the authorized and regulatory authority on bankruptcy and bankruptcy procedures"
Recently, a number of laws have been adopted that enshrine the legal status of FOOV. For example, federal laws: "On state regulation of foreign trade activities 8; "On the protection of the rights and legitimate interests of investors in the securities market" 9 "On the basics of foreign investment in the Russian Federation" 10; Federal laws "On the protection of the rights of legal
1 Air Force RSFSR. 1990. No. 30, Art. 418.
2 Air Force RSFSR. 1992. № 28, Art. 223.
3 NW RF. 1995. No. 22, Art. 1977.
4 SZ RF. 1995. No. 34, Art. 3426.
5 NW RF. 1995. No. 25, Art. 2343.
6 SZ RF. 1998. No. 2, Art. 223.
8 SZ RF, 1995, No. 34, Art. 4326; № 25, Art. 2343; No. 42, Art. 3929.
9 NW RF. 1999. No. 41. Art. 1163.
persons and individual entrepreneurs when conducting state control (supervision) of 09.08. 2001 No. 134 - FZ; "On audit activities" of 07.08.2001 No. 119-FZ; "On counteracting legalization (laundering) of the income obtained by criminal means" of 07.08.2001 No. 115 1; "On state registration of legal entities" from 08.08. 2001; "On some measures to strengthen government bodies" from 26.04. 2001 No. 486, as amended. 01/24/2002, etc.
Of particular importance for improving economic relations is the FZ "On Electronic Digital Signature", adopted 10.01.2002, which will make significant changes in regulation of economic relations.
The laws adopted, as a rule, do not have the norms of direct action and require the adoption of a number of regulatory regulatory acts. The most huge power of all the registered acts have decrees of the President of the Russian Federation. For example, Decree of the President of the Russian Federation of January 17, 1997 No. 12 "On bringing acts of the President of the Russian Federation in accordance with federal laws" 2. This decree confirms the submission of decrees, which is also reflected in the Constitution of the Russian Federation Art. 90 p, 3.
Substitutional regulatory regulations are essential in regulating economic relations, as it is more promptly accepted.
The robus of the Government of the Russian Federation of 22. 01. 1999 was performed as a sub-banner of the Government of the Russian Federation No. 92 "On the Council on the Restructuring and Industry Development and Development of the Government of the Russian Federation" and the Regulation on Him, the decision of 13.09. 1999 № 1039 "Questions about the state administration of the joint-stock company in Transneft oil transport and a resolution of 23. 01. 1999 № 85" On the appointment of state representatives in the management bodies in the construction complex "and other regulatory and legal acts of management .
The legal regulation of economic relations with the CIS countries has great importance in the development of the Russian economy. In this regard, the Federal Law of 8.07 adopted. 1996 No. 90-FZ "On ratification of an agreement on the establishment of the Interstate Economic Committee of the Economic Committee
1 SZ RF. 2001. No. 33, Art. 3418.
2 SZ RF, 1997, No. 5, Art. 367.
union "1 and FZ dated 03/22/2001 No. 27-FZ" On ratification of an agreement between the Russian Federation and the Republic of Belarus on the introduction of a single monetary unit of the formation of the Unified Emission Center of the Allied State ".
Given the importance of the problem of the international economic integration of Russia, the decree of the President of the Russian Federation from 25. 10. 1999 No. 1429 "On the Interdepartmental Commission of the Russian Federation for the Council of Europe" 2.
However, now the continued relevant problem is the economic interaction at the level of the constituent entities of the Russian Federation. In this regard, 17. 12.1999 adopted by the Federal Law "On the General Principles of Organizing and Associations for the Economic Cooperation of Subjects in the Russian Federation" 3 and from 4. 01.1999 "On the coordination of international and foreign economic relations of the subjects of the Russian Federation" 4. In the constituent entities of the Russian Federation, there are also relevant economic management bodies.
An array of existing legal acts, in one way or another related to the organization of management in the field of economy, is quite large. Represents scientific and practical interest classification of these legal acts.
The classification of legal acts can be submitted for the following criteria:
According to legal force (the Constitution of the Russian Federation, the Constitution of the republics, the statutes of the Federation's constituent entities, laws, decisions of the Chambers of the Federal Assembly, the sub-law acts of the President of the Russian Federation and the Government of the Russian Federation);
By the nature of influence: a) directly regulating, for example, decree of the President of the Russian Federation "On the structure of the federal executive authorities" (WG dated May 17, 2000 No. 867); b) indirectly affecting, for example, the Civil Code of the Russian Federation regulating property relations, has an impact on the content of the organization of economic management;
Depending on the principle of federalism, which is reflected in the system of competence of the organization
1 SPKZ and FZ. 1996, Issue 10 (28).
2 SZ RF. 1999. No. 44. Art. 5297.
3 NW RF. 1999. No. 51. Art. 6286.
4 SZ RF. 1999. No. 2. Art. 231.
the state power of Russia, and the subjects of the Russian Federation as a whole in specific areas and industries.
The most important landmarks in the field of rational combination of state and regional aspects in the activities of state bodies and bodies of local governments are defined in the concept of state national policy of the Russian Federation of June 15, 1996 No. 909, and the "main provisions of regional policy in the Russian Federation", approved by the Decree of the President of the Russian Federation from 3 . 06. 1996 № 803.
The extractive and processing industry has always been considered a special sphere of economic interests of the state, since the industrial complex is designed to provide a variety of public and individual needs for such products. The domestic industry in all countries is the guarantor of economic independence. The experience of our country over the past decade, a convincing negative example.
The most important issues of regulating economic relations solve the legislative and executive bodies. They regulate the main economic relations, while ensuring their fundamental legal guarantee.
The system of government economy currently acts mainly a decentralized system of management bodies in the federal executive bodies who carry out federal programs in the industries entrusted to them.
The industrial complex is played a special role. It is the most important part of the national economy of the country, the basis of its economic power and defense capability. This complex unites a number of groups and industries, which, in turn, are divided into associations, enterprises and organizations. The powerful scientific and technical and intellectual potential of the country is concentrated here. The purpose of the industrial complex is to provide the national economy of fuel and commodity resources, cars, equipment and other modern means of production, producing goods benefits goods for the population.
Economic relations as a subject of legal regulation The right is a regulator of public relations. His destination is to streamline the life of society, ensure its normal functioning and development. It should be remembered that before the right and together with him there were customs and traditions, morality, religion, which also act as the most important regulators of public relations. There are also such spheres of society, in the regulation of which the right is not a dominant role. And there are also such relationships that are generally not subject to legal regulation.
The concepts and signs of entrepreneurial activities in the conditions of a market economy The bulk of economic relations is the relationships in the process of carrying out entrepreneurial activities. In accordance with Article of the Civil Code of the Russian Federation, entrepreneurial activities are independent, activities carried out to the systematic profit from the use of the property, sales of goods, work, or providing services by persons registered in this as in the manner prescribed by law.
From this definition, the following signs of entrepreneurship can be distinguished: 1) independence; 2) the focus on systematic profit; 3) risky nature; 4) Registration in the procedure established by law, individuals carrying out this activity.
1) Independence as a sign of entrepreneurial activity includes organizational independence and property independence of the entrepreneur. Organizational independence manifests itself in the fact that the entrepreneur himself - without any instructions "from above" - \u200b\u200bdecides that and how to produce, who has the necessary raw materials and materials, to whom and at what prices produced products, etc. Property independence assumes the presence of a separate entrepreneur, i.e. It is his own property that he uses in carrying out entrepreneurial activities.
2) The focus on the systematic profit is the most significant sign of entrepreneurial activity. And from the point of view of everyday consciousness, and from the point of view of science, entrepreneurial activity is primarily an activity, the purpose of which is to receive profits.
3) The risky nature of entrepreneurial activity is that it does not always give the expected results. It was the risk nature of entrepreneurial activity that led to the emergence of an insolvency institute (bankruptcy) in the civil law.
4) Registration in the manner prescribed by the law by entrepreneurial activities. Some authors consider this sign as a formal, pointing out that in the presence of the three other features listed above, the activity will be entrepreneurial, even if it is carried out without registration
The economic law is called a set of legal norms regulating relations, developing in the process of exercising economic activities at present in our country, as in most other countries of the world, the main source of law is the regulatory acts - official documents adopted by the competent authorities in the prescribed manner and containing rules of law.
Regulatory acts are divided into two large groups: 1) laws with higher legal force; 2) Substitutional regulatory acts taken on the basis and in accordance with laws. As for the laws, on top of the pyramid of these regulatory acts there is a constitution - the main law of the country. Then federal constitutional laws, ordinary federal laws and laws of the subjects of the Federation follow. As for the regulatory regulatory acts, the decrees of the President of the Russian Federation and the Decree of the Government of the Russian Federation have the greatest legal force here.
The most important, fundamental norms of the economic law of Russia are enshrined in the Constitution of the Russian Federation. They can be viewed as principles of economic law, i.e. Fundamental principles from which all other issues of economic law are coming. These include: - the unity of economic space; - free movement of goods, services and financial resources - support for competition; - diversity of ownership forms; -Sobody economic activity, including the right of everyone on business activities;
Legal regulation of economic relations
1.1. Economic relations as a subject of legal regulation
In essence, the right is a regulator of public relations. His destination is to streamline the life of society, ensure its normal functioning and development. However, not all social relations, not all spheres of society in the same extent are the subject of legal regulation. It should be remembered that before the right and together with him there were customs and traditions, morality, religion, which also act as the most important regulators of public relations. And only together they can ensure the normal development of society. Moreover, in various spheres of life of society, the role of each of these social regulators is not the same.
There are such spheres of society, in the regulation of which the right one does not lead a domicile role. And there are also such relationships that are not subject to legal regulation at all (it is primarily deeply personal, intimate, relations: love, friendship, etc.).
As for the economy, it refers to those spheres in which the role of the right is traditionally essential. Economic relations are always - of course, from the moment the right appeared - were the subject of legal regulation. Naturally, this regulation had its own specifics in various historical epochs and in conditions of various economic systems. It has its own characteristics and legal regulation of economic relations in a market economy.
At first glance, it may seem that the market economy in legal regulations does not need at all - after all, one of the cornerstone
this economic system is freedom of economic activity. However, it would be a big mistake to think so. Life itself, practice shows the inconsistency of such a look at the market economy.
First, the legal regulation of the market economy is necessary in order to protect the interests of society and the state. The experience of almost all countries with a market economy shows that "absolute economic freedom" is always associated with abuses - the emergence of the market for the life and health of consumers, sometimes on the market for the life and health of consumers, the emergence of fraudulent entrepreneurial structures, "irrevocable" attracting savings of citizens And many other "costs".
One of the most dangerous consequences of such "freedom" is the disappearance of free competition and domination of monopolies. Competition is one of the most important mechanisms that ensure the efficiency of the market economy. Monopolies allow individual manufacturers to receive super-profits, without taking care of the efficiency of production, product quality, etc. For monopolists, this state of affairs is beneficial. For consumers, for society as a whole, for the state, it is a danger that is difficult to overestimate. Therefore, in all civilized countries, antitrust laws are the most important element of the mechanism for regulating the market economy.
On the other hand, the legal regulation of economic relations in the conditions of a market economy is necessary to ensure the rights and interests of the entrepreneurs themselves. After all, genuine, and not the imaginary freedom of economic activity does not exclude, but implies its certain regulation.
Entering a variety of relations between themselves, with consumers, with the state, entrepreneurs are interested in being ordered, predictable, were built in accordance with certain rules. Without using the potential of law, it is impossible to achieve this. Thus, there is every reason to argue that the legal regulation of economic relations is a necessary condition for the normal functioning of the market economy.
1.2. Concept and signs of entrepreneurial activity
In a market economy, the bulk of economic relations are attributed to the relationship in the process of carrying out entrepreneurial activities. Consider what she
it is.
The definition of entrepreneurial activity from the point of view of the law is given in Art. 2 Civil Code of the Russian Federation. In accordance with this article, the entrepreneurial is an independent, activities carried out to the systematic profit from the use of the property, the sale of goods, the performance of work or the provision of services by persons registered in this quality in the manner prescribed by law.
From this definition, the following signs of entrepreneurial activity can be distinguished:
1) independence;
3) risky nature;
4) Registration in the procedure established by law, individuals carrying out this activity.
Let us dwell on these signs. Read more. As a sign of entrepreneurial activity includes organizational independence and property independent of the entrepreneur.
Organizational independence manifests itself in the fact that the entrepreneur itself - without any instructions, "above" - \u200b\u200bdecides that and how to produce, who has the necessary raw materials and materials, to whom at what prices produced produced products, etc.
Property independence assumes the presence of a separate entrepreneur, i.e. It is his own property that he uses in carrying out entrepreneurial activities. Not always such property is the property of an entrepreneur. There are entities of entrepreneurial activity that own property on the right of economic management or
the right of operational management (this will be said about this in the next chapter of the textbook). What part of the property entrepreneur can own, for example, on the right lease. But in any case, the entrepreneur has the ability to independently use such property. The property independent of the entrepreneur is the basis of its organizational independence.
The risky nature of entrepreneurial activity is that it does not always give the expected results. By virtue of a wide variety of reasons for both subjective (error, entruster of the entrepreneur), and objective (change in market conditions, default, natural disaster) The entrepreneur can not only not get the planned profit, but also to break, suffer crash. It was the risk nature of entrepreneurial activity that led to the emergence of an insolvency institute (bankruptcy) in the civil law.
The focus on systematic profit is perhaps the most essential signs of attribute. And from the point of view of everyday consciousness, and from the point of view of science, entrepreneurial activity is primarily an activity, the purpose of which is to receive profits. Other signs of entrepreneurial activity are in a certain sense of secondary, derived from this feature. It should be borne in mind that from the point of view of the law to qualify operations as an entrepreneurial it is not necessary that as a result of its implementation, a profit was actually obtained. It is only a goal, orientation
on her receipt. Will there be a profit or not - it matters to solve other issues, in particular tax issues.
On the other hand, to be considered entrepreneurial, activities should be directed not just to receive, but on systematic profit, i.e., more or less regularly. Therefore, transactions aimed at receiving profit cannot be viewed as entrepreneurial activities. This is due to such a sign of entrepreneurial activity as registering individuals carrying out this activity (state registration), it is not always included in the number of main. Some authors consider it as a formal, pointing out that in the presence of the three other signs listed above, the activity will be entrepreneurial, even if it is carried out without registration.
Such a look at state registration as a sign of entrepreneurial activity is not quite faithful. Indeed, from the point of view of economic content of entrepreneurial activity, the presence or absence of state registration is not significant. But from the point of view of the right, this sign is very significant. In the case of its absence, an illegal entrepreneurship will occur - an offense for which administrative is envisaged, and under certain conditions - and criminal liability.
And one more important remark. Entrepreneurial activity, being dominant in a market economy, does not exhaust the entire economic life of society. As we will see later, among business entities there are also such for which entrepreneurial activities are of secondary importance (for example, funds, religious organizations), and those that do not carry out entrepreneurial activities at all, while participants in business relations (many housing and construction , garage cooperatives, etc.).
This means that the concepts of "business activities" and "economic activity" are not identical even in market conditions. The second concept is wider and includes the first as part. Therefore, in some cases, if the subject of the conversation is not specifically limited only to entrepreneurial activities -
it is to talk about the subjects of economic, not entrepreneurial activities, about economic, and not entrepreneurial legal relations, about economic, and not entrepreneurial law.
1.3. Economic law and its sources
The economic right is the set of legal norms regulating relations, developing in the process of economic activity.
It is important to keep in mind that the economic right is not a separate, independent branch of the right, for example, with civil, labor and other industries, which are known to you from the course of the fundamentals of law, and the so-called comprehensive branch of law, which includes norms of several industries: constitutional, civil, financial, administrative and some others.
This moment is important to take into account, in particular, when the sources of business law characteristics.
As you know, under the sources of law are understood by ways of expressions, consolidation and existence of legal norms. At different times and in various countries, legal custom, legal precedent, regulatory act, regulatory contract, performed and act as sources of law. Currently, in our country, as in most other countries of the world, the main source of law is the regulatory acts - United States documents adopted by the competent authorities in the prescribed manner and containing the rules of law.
Regulatory acts are divided into two large groups (two types):
1) laws possessing the highest legal force;
2) Substitutional regulatory acts taken on the basis and in accordance with laws.
In turn, each of these groups has its own hierarchy of regulatory acts.
As for the laws, on top of the pyramid of these regulatory acts there is a constitution - the main law of the country. Then federal constitutional laws, ordinary federal laws and laws of the subjects of the Federation follow.
Each of the lower laws in this pyramid cannot contradict the higher.
Among the usual laws special attention deserve codified acts - sectoral codes, which are the main sources of law for the respective industries.
As for the regulatory regulatory acts, the decrees of the President of the Russian Federation and the Decree of the Government of the Russian Federation have the greatest legal force here.
Next, followed by departmental regulatory acts (orders, instructions, etc., documents of various ministries and departments), local (regulatory acts of local government and local governments) and local (intra-organization) regulatory acts (t. e. Acts published and operating within individual enterprises, institutions, organizations).
Among the sources of economic law, we discover regulatory acts belonging to all groups and subgroups of the system of regulatory and legal acts and on all floors of their hierarchy. Describe the most important of them.
The most important, fundamental norms of the economic law of Russia are enshrined in the Constitution. They can be considered as principles of economic law, i.e., the fundamental principles from which all other norms of economic treatment are emanated. These include:
Unity of economic space;
Free movement of goods, services and financial resources;
Competition support;
Variety of ownership forms;
Freedom of economic activity, including the right of everyone on entrepreneurial activities.
Following the value after the Constitution of the Russian Federation, the source of economic law in our country is the Civil Code of the Russian Federation.
It is in it that it contains legal norms that regulate such important relations for the participants of the relations, as property relations, obligations, including contractual (buy-selling, supplying, in a row, capital construction, etc.) and others.
Among the codified acts, in addition to the Civil Code of the Russian Federation, the Tax Code of the Russian Federation can be considered as sources of economic law, the Code of Administrative Offenses, the Criminal Code of the Russian Federation. They also contain legal norms directly related to business entities that establish penalties for offenses in this area.
The most important sources of economic right include a number of federal laws governing certain aspects of economic activity: "On joint-stock companies", "On banks and banking activities", "On Accounting", "On Insolvency (Bankruptcy)" and many others.
An important role in the regulation of economic relations in our country is the decrees of the Presidentf and the Decree of the Government of the Russian Federation. According to their disposal, they are sometimes comparable to the laws. However, it should be remembered that with all their importance, this is still by-law acts, and they should not contradict the Constitution of the Russian Federation and federal laws. Their main purpose is to ensure the implementation of the provisions of the Constitution and laws.
Regulatory and legal acts of ministries and departments determine the forms and mechanisms for the implementation of laws, decrees of the president and decisions of the Government of the Russian Federation. For example, in the instructions of the tax department contains instructions on the application of tax legislation.
Economic law standards may be contained in some regulatory and legal acts of organ-walled self-government. As a rule, they concern property municipalities and determine the procedure for its use.
Some local (Intorganization) regulatory acts may also contain the norms of economic law. Any economic entity can establish the norms of economic activity in its local regulatory acts, mandatory for all employees of this subject (of course, if these norms do not contradict the laws and higher subtitle acts).
Finally, speaking of sources of economic law, it is necessary to keep in mind that in accordance with Art. The 15 constitution of the Russian Federation part of the Russian legal system are generally accepted principles and norms of international law and international treaties of the Russian Federation. Therefore, international treaties of the Russian Federation in the field of economy should also include sources of the economic law of Russia. In practice, most business entities for this kind of sources of economic law are rare. Nevertheless, each entrepreneur should be remembered that in case of discrepancies between the rules of the law and the rules of the International Treaty of Russia, priority is given to the rules of the International Treaty.
Concept, shapes and types of economic relations
Definition 1.
Today, under economic relations, it is customary to understand some ties (relationships) arising between people regardless of their will and consciousness in the process of public reproduction. As a rule, such relationships are encircled all spheres of human life.
The emergence and development of economic relations is associated with the implementation of four groups of processes:
- production;
- distribution;
- exchange;
- consumption.
Their aggregate forms the basis of public reproduction.
Economic relations are heterogeneous in their composition and purpose. In this regard, it is customary to allocate their various forms and types.
The main forms of economic relations are presented in Figure 1. Consider them in more detail.
Figure 1. Forms of economic relations. Author24 - Student Internet Exchange
Technical and economic relations are associated with the use of resources during the reproduction process. They are reflected in the public division of labor, specialization and cooperation.
Socio-economic relations are related to property relations and production results.
Organizational and economic relations are form and methods of management and develop in terms of the choice and use of certain methods of organizing the processes of social production and management of them.
Economic relations differ in the species sign. In particular, they can be stable and one-time, voluntary and compulsory, etc.
Anyway, economic relations rely on property relationships and require their regulation, which can be carried out on voluntary (self-regulation) and forced-based basis.
Legal aspects of state regulation of economic relations
Economic relations since ancient times are the object of regulation, the main regulators are right.
Definition 2.
Legal state regulation of economic relations is one of the forms of state regulation of social relations, which ensures the behavior of economic relations in accordance with the requirements of the current norms of law.
Today, the basis of state regulation of economic relations is the norms of civil and economic law.
Note 1.
The essence of legal state regulation of economic relations is reduced to the development and formation of a legislative framework that ensures the norm of the functioning of various market structures, commerce and entrepreneurship, the interests of society and equality of market subjects.
The decisive role in the system of state legal regulation of economic relations is given to antimonopoly legislation and deflation policy.
The antitrust government policy is based on the implementation of administrative and economic measures aimed at preventing the monopolization of trade and production by individual economic entities. Its main tools are:
- state control of prices of monopolist enterprises;
- encouragement of diversification;
- disintegration of excessively large commercial, industrial and management structures;
- development of competition (including control of admission to the domestic market of foreign producers);
- providing antitrust examination of adopted laws.
An equally important role in the state regulation of economic relations also plays a deflation policy aimed at restraining prices. Its main tools is the stabilization of aggregate operating demand, the proposal management and the transition to equilibrium market prices.
Legal regulation of economic relations can be carried out at various levels, ranging from regional and ending with global. One way or another, it acts as an integral element of the current management system.
In addition to the right state regulation, economic relations are subject to market management and control. This in this case is about the mechanisms of self-regulation and first of all - about free competition.
Nevertheless, in the modern world, the decisive role in regulating economic relations is given directly to the institutions of the state and law.
Forms and types of legal regulation of economic relations
State regulation of economic relations is one of the forms of its participation in economic life. Its essence is reduced to a direct or indirect effect on the resource allocation processes and the formation of proportions.
In general, legal regulation of economic relations can take two main forms (Figure 2). Consider them in more detail.
Figure 2. Forms of legal regulation of economic relations. Author24 - Student Internet Exchange
Direct forms of state regulation of economic relations are associated with the use of various methods of irrevocable financing of industries, territories and enterprises. These include direct subsidies, including a variety of benefits, subsidies and surcharges carried out from specially created funds (budget and extrabudgetary). In addition, this also includes tax breaks and preferential loans.
Unlike direct, indirect forms of regulation of economic relations include various levers of public policy implemented by its government. In particular, here refers:
- money-credit policy;
- fiscal policy;
- foreign economic and monetary policy;
- customs tariff policy, etc.
In addition, it is customary to allocate the administrative form of regulating economic relations, which includes a whole range of measures of indirect effects. Such measures are licensing, quotation, change in the rate of accounting percentage, price control, etc.
Preface
Reviewers:
chairman of the Cycle Commission of Economic and Special Disciplines,
teacher of the Moscow Automotive College M. N. Kolotilo;
lecturer of Polytechnic College No. 19 L.M.Artamonov
Romanine V. V.
P864 Legal support of professional activities: a textbook for the stud. environments prof. studies. institutions / V. V. Romanine. - M.: Publishing Center "Academy", 2006. - 192 p.
ISBN 5-7695-2882-6
The textbook is drawn up in accordance with the exemplary program of the educational discipline for students of educational institutions of secondary vocational education, students in technical specialties. It covered questions: legal regulation of the economy; permits of economic disputes; labor relations; relations on social security of citizens; administrative law and administrative responsibility. A detailed methodical material of the textbook will help students organize independent work.
For students of secondary professional educational institutions.
UDC 34 (075.32) BBK 67Я723
The original-layout of this publication is property
Publishing center "Academy *, and its reproduction in any way
without the consent of the copyright holder is prohibited
© Romanina V. V., 2006
© Educational and Publishing Center "Academy", 2006 ISBN 5-7695-2882-6 © Registration. Publishing Center "Academy", 2006
The proposed textbook is addressed to students of secondary vocational schools, studying in technical specialties.
Discipline "Legal support of professional activity" is based on theoretical knowledge of the right received by students in the first year in the study of the discipline "Fundamental Law".
As a result of the study of this discipline, the student must:
- have an ideaon the legal status of entities of legal relations in the field of entrepreneurial activity;
- knowlegislative and other regulatory legal acts regulating legal relations in the process of professional activities; rights and obligations of employees in the field of professional activities;
- be able toprotect your rights in accordance with civil, civil procedural and labor legislation.
The study of the "Legal support of professional activities" is invited to begin with consideration of the topic of the relationship between law and economy. This will allow to obtain an idea of \u200b\u200bwhich areas of the economic life of our society are regulated by law. Understanding the most important issues of legal regulation of entrepreneurship in the Russian Federation should be proceeding to the study of the main provisions of labor legislation. The course of acquaintance with the main provisions of administrative law is completed.
One topic of the program corresponds to one chapter, the theoretical material of which must be carefully learned. Some provisions are illustrated by the schemes, the purpose of which is to help a student from the mass of legal information to allocate what the most important thing in this topic. At the end of each chapter, questions and tasks for self-test are given. Completes the textbook a list of regulatory legal acts on the basis of which a real textbook is compiled.
Chapter 1
Legal regulation of economic relations
The concepts of economics and economic relations
The economy plays a huge role in society. First, because it provides people with material conditions for their existence - food, clothing, housing and other consumer items. Secondly, because the economic sphere of life of society is a system-forming component of society, that decisive sphere of his life, which determines the course of all processes occurring in society.
Under economyin a broad sense, usually understand the system of social production, i.e. The process of creating material benefits necessary to human society for its normal existence and development. In the system of social proceedings, three levels can be distinguished:
1st - labor activity of an individual employee;
2nd - production within the company or enterprise (the so-called micro level);
3rd - production in the framework of society, the state (the so-called macro level).
When moving from one level to another, the process of complication of the elements of production is occurred: on an individual - it represents a simple labor process of one person; On the micro level - labor cooperation, i.e., unification of several persons in a single process; At the macro level - the work cooperation of the whole society within the framework of this country or even the entire world community.
Today, in all developed countries, the economy consists of several interrelated production and complementary types of production, and above all the material, where material wealth is created, and the intangible, where the process of creating spiritual, moral and other values \u200b\u200bis being created. Another important element of modern production is the scope of services. Servicesthis type of activity is called, the useful result of which is manifested during labor and which is associated with the satisfaction of any need. Finally, its infrastructure has been occupied by a special place in modern production - the combination of those industries and areas of activity that create general conditions for the functioning of production.
The infrastructure is divided into industrial and social. TO production infrastructurethere are auxiliary industries directly serving production (transport, communication, logistics and other). Social(or non-production) infrastructure -this is the sphere that provides the necessary socio-cultural conditions for the life of production workers and their families (housing and communal services, trade, service of life, health care, education, etc.).
In the course of practical activity, manufacturing material benefits people face not only with a certain level of development of technology and technology, but also with the relationships that were called technological.
Technological relations- These are the attitude of the manufacturer of material benefits to the subject and means of their work, as well as to people with whom it interacts in the technological process.
Another system of relationships are economicor production, which are divided into relations:
1) in the field of entrepreneurial activity;
2) wage labor.
Subjects of entrepreneurial activity. OWNERSHIP
Legal entities as business entities
Organizational and legal forms of legal entities
The concept of the contract
Treaty- This is an agreement of two or several persons on establishing, changing or termination of civil rights and responsibilities.
The contract is the most common type of transaction. It represents volitional act.However, this volitional act has specific characteristics inherent in it. It is not disparate volitional actions of two or more persons, but unified willexpressing their general will. In order for this general will of the parties to be formed and enshrined in the contract, it must be free from any external influence. Therefore, the Civil Code of the Russian Federation enshrines a number of rules providing freedom of the contract:
1) freedom of contract suggests that subjects of law are free to solve the issue, to conclude or not to enter into an agreement;
2) freedom of contract provides freedom to choose a partner when concluding the contract;
3) Freedom of the contract involves the freedom of its participants in the choice of the type of contract;
4) Freedom of the contract involves the freedom of discretion of the parties in determining the terms of the contract.
The contracts apply such a general rule as "the law of the inverse force does not have". Participants in the Treaty can be confident that subsequent changes in legislation cannot change the conditions of the contracts of the contracts.
The conditions on which the Agreement of the Parties is reached is contents of the contract.According to its legal significance, all conditions are divided into significant, ordinary and random.
Significantthe conditions that are necessary and sufficient to conclude a contract are recognized. In order for the contract to be concluded, it is necessary to agree on all its essential conditions. The contract will not be concluded until at least one of its essential conditions is agreed. Therefore, it is important to clearly determine what conditions for this contract are essential.
Legislation establishes as essential conditions:
1) conditions on the subject of the contract.Without the definition of what is the subject of the contract, it is impossible to conclude any contract. So, it is impossible to conclude a contract of sale, if an agreement has not been reached between the buyer and the seller on which items will be sold in accordance with this Treaty. It is impossible to conclude a contract of instructions, if an agreement has not been reached between the parties about what legal actions the attorney must be made on behalf of the principal, etc.;
2) conditions that are named in law or other legal acts as significant.So, for example, the pledge agreement should indicate the subject of pledge andhis assessment, creature, size and deadline for the fulfillment of the obligation provided by the deposit. It should also contain an indication of which of the parties is the following property;
3) conditions that are needed for contracts of this species.We are necessary, and therefore, those conditions that express its nature are significant for a particular contract and without which it cannot exist as this type of contract. For example, a simple partnership agreement is unthinkable without defining Parties with a general economic or other purpose, to achieve which they undertake to jointly act;
4) conditions regarding whom, according to one of the parties, an agreement should be reached.This means that, at a request, one of the parties in the contract becomes essential, and such a condition that is not recognized as a law or other legal act and which does not express the nature of this treaty. So,requirements that are presented to the packaging of the goods sold are not attributed to the number of significant conditions for the sale of the purchase and sale of the current legislation and do not express the nature of this contract. However, for the buyer purchasing a thing as a gift, the packaging can be a very significant circumstance. Therefore, if the buyer needs to coordinate the packaging condition of the purchased goods, it becomes a significant condition for the contract of sale, without which this sales contract cannot be concluded.
Unlike essential, normal conditions do not need to coordinate the parties. Normal the conditions are provided in the relevant regulations and automatically come into effect at the time of the conclusion of the contract. This does not mean that ordinary conditions apply against the will of the parties in the contract. Like other terms of the contract, conventional conditions are based on the Agreement of the Parties. Only in this case, the agreement of the parties to subordinate the contract to the usual conditions contained in the standard
acts are expressed in the fact of the conclusion of the contract of this species.
Randomconditions are called or complement conventional conditions. They are included in the text of the contract at the discretion of the parties. Their absence, as well as the absence of ordinary conditions, does not affect the reality of the contract. However, unlike ordinary, they acquire legal force only if they are included in the text of the contract. The absence of a random condition, in contrast to significant, in the event case entails the recognition of this contract, not unclosed if the interested party proves that it required the coordination of this condition. Otherwise, the contract is considered concluded and without accidental condition.
Forms of contract
Form of the contract- This is a way through which the parties express their will to conclude a contract. In other words, the form of the contract is a way of agreed willing of the parties.
In accordance with the Civil Code of the Russian Federation, the contract can be concluded in the following forms:
1) in the form of conventional actions;
2) orally;
3) in writing - simple or notary.
Under conclusted actions it is understood by the behavior from which the will (desire) of the person shows a deal, although no words are pronounced. For example, the buyer, wanting to purchase the goods exposed on the counter, takes him in his hands and silently stretches the seller money. Passenger, wanting to get to a certain place, sits in the tram of the corresponding route. The visitor of the theater silently passes the wardrobe to the upper clothes and gets a number. In all these cases, there is a conclusion of a contract by conclusted actions (contracts for purchase and sale, transportation and storage, respectively). Conclusive actions should be distinguished from silence when the face not only does not pronounce any words, but in general it does not express his will (inactive). Silence is considered agreeing to conclude a contract only in cases directly provided by law or the Agreement of the Parties, butalso when it follows
From customs of business turnover or former business relations.
Oral formit is a direct expression of the will by oral speech.
Orally and in the form of conventional actions can be performed:
Any transactions (contracts) for which the law or agreement of the Parties has not established a written form;
Transactions, performed in their very accomplishment (for example, buying a citizen of goods in the market), with the exception of transactions for which a notary form or a simple written form is installed under the invalidity fee (see below).
Written formit happens simple and notarial. Simple written formit consists in drawing up a document expressing the content of the contract and signing it by the parties. For some types of contracts, legislation provides for the need to compile a single document (such, for example, contracts for the sale or lease of real estate). In other cases, for compliance with the simple written form, it is enough to exchange letters, each of which is signed by the party from which it proceeds. A simple written form is also considered to be observed if in response to a written proposal of one Party to conclude an agreement the other party will fulfill the conditions provided for in the proposal, i.e. There are conclusted actions, testifying to her desire to conclude an agreement on these conditions (for example, will ship the requested product or lists the money in the payment of the goods proposed by the other party).
The legislation or agreement of the parties can be placed additional requirements for simple writing: bonding the document with seals, execution on the form of a certain form, etc.
The following transactions must be performed in simple writing (except transactions requiring a notary certificate):
Transactions of legal entities among themselves and with citizens;
Transactions of citizens among themselves in the amount exceeding 10 times and more minimum wage;
In cases provided for by law, other transactions, regardless of their sum and subjects.
Failure to comply with a simple written form (if it is obligatory), depending on the type of transaction, it may entail the following legal consequences:
1) if the law is not directly established by other, in the event of a judicial dispute, the parties will lose their right to refer to the confirmation of the transaction or its conditions for testimony;
2) In cases directly stipulated by the Party or Agreement, the transaction committed with a violation of a mandatory written form will be invalid (insignificant).
Notary formthe contract is characterized by the fact that the Parties sign a single written document, enshrining the content of the contract, in the presence of a special official - notary, which establishes the identity of the parties and certifies the transaction with the record of the record of it in a special registry. A state duty is charged for the commission of such actions.
The notarial form is mandatory only in cases directly provided by law, as well as in cases where the parties have established it with their agreement (even if it was not required by law). Failure to comply with the notarial form entails the invalidity (insignificance) of the contract.
Types of contracts
Numerous civil law agreements have both common properties and certain differences that allow them to eliminate them from each other. In order to correctly navigate the entire mass of numerous and diverse contracts, it is customary to carry out their division into separate species.
Basic and preliminary agreements
Civil law agreements vary depending on their legal entity.main contractdirectly generates the rights and obligations of the parties related to the movement of material benefits: transfer of property, carrying out work, the provision of services andetc. Preliminary agreementit is an agreement of the parties to conclude the main contract in the future, contains conditions to establish a subject, as well as other essential conditions of the main contract. Otherwise, this preliminary contract will be considered nonconnected.
The preliminary agreement indicates the period in which the parties undertake to conclude the main contract. If such a period in the preliminary contract is not defined, the main contract is subject to conclusion over the course of the year from the date of the preliminary contract. If at the specified deadlines, the main contract will not be concluded and none of the parties will do the other side
The offer to conclude such an agreement (offer), the preliminary agreement terminates.
Most contracts are basic treaties, preliminary agreements are much less common. Failure to comply with the rules on the form of a preliminary contract entails his insignificance.
Public contract
Public contractthe contract concluded by the commercial organization and establishes its responsibilities for the sale of goods, fulfilling the work or the provision of services, which such an organization should be carried out in relation to everyone who will contact her (retail trade, transportation of public transport, communication services, power supply , medical care, services provided by hotels, etc.).
Entrepreneur (legal entity or citizen):
It does not have the right to refuse to a citizen or a legal entity in the conclusion of a public contract if it can provide the consumer relevant goods, work or provide services. With unreasonable deviation from the conclusion of the contract, the consumer has the right to force the entrepreneur to conclude an agreement and require damages;
It does not have the right to prefer one individuals before others regarding the conclusion of a public contract (for example, to release someone out of turn). Exceptions from this rule may be provided for law (for example, for veterans, disabled, etc.);
It must establish the same prices for all consumers for goods and services, except when the law is allowed to provide benefits to their individual categories (for example, preferential tariffs for utility payments, etc.).
Contracts in favor of their participants and contracts in favor
third Persons
These treaties vary depending on whether who can demand the fulfillment of the contract.As a rule, contracts are consistent with their participants, and the right to demand the execution of such contracts belongs to only their participants. At the same time, agreements in favor of persons who did not participate in their conclusion are found, but have the right to demand their execution
. Treaty in favor of a third partythe contract is recognized in which the parties have established that the debtor is obliged to perform a fulfillment not to the lender, and the third party specified or not specified in the contract, having the right to demand the fulfillment of the fulfillment of the obligation in its favor.
From third-person treaties should be distinguished treaties on the execution of a third party.The latter do not provide any rights to a third party, therefore, they cannot demand their execution. For example, at the conclusion between a citizen and a shopping contract for the sale of a gift with the present of his birthday, the latter is not entitled to demand the fulfillment of this contract.
Compensated and gratuitous contracts
Compensatedagreement according to which the property provision of one party determines the oncoming property provision from the other side. IN add to cart Royalty freeagreement Property is made only by one side without receiving a counter-property provision from the other side. So, the contract of sale is a compensated agreement that can not be gratuitous in principle. Dear agreement, on the contrary, in its legal activity is a free agreement that can not be paid as well in principle. Some contracts can be both compensated and gratuitous. For example, an assignment agreement may be compensated if the attorney receives a remuneration for the services rendered and gratuitous if such a remuneration is not paid.
Free and obligatory contracts
By foundations of conclusionall contracts are divided into free and obligatory. Free contracts- These are such contracts, the conclusion of which depends entirely on the discretion of the parties. Conclusion obligatory "contracts,how it follows from their name itself is mandatory for one or both sides. Most treaties are free. They conclude at the request of both parties, which fully complies with the needs of the development of a market economy. However, in the conditions of economically developed society there are mandatory contracts. The obligation to conclude an agreement can flow from the most regulatory act. Among the obligatory contracts, public agreements have already been particularly important.
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CH A B A 6
Economic disputes
The concept of labor law
Labor law- This is a branch of law, the norms of which regulate public relations, developing between employees and employers about the implementation of the citizens of their abilities to work, as well as some other, closely related to relations (in particular, employment relationship in a particular employer, training, retraining and improve the qualifications of employees, the relationship of the material responsibility of the parties to the employment contract in the field of labor, relations to resolve labor disputes, etc.).
Like any other branch of law, labor law has its own method. The method of labor law shows what legal means and techniques are being regulated by public relations included in its subject (i.e., as mentioned above, labor and closely related to labor relations).
A feature of the method of labor law is a combination of contractual and regulatory methods of regulation. Labor relations can be governed by an individual employment contract of an employee who concludes an employer with him, as well as a collective agreement, agreements that, on behalf of employees, are their representatives with employers.
A feature in the method of legal regulation is also expressed in the fact that the parties are an employee and an employer - legally in an equal position in relation to each other at the conclusion of an employment contract. But after his conclusion, the employee must obey the legal orders of the employer and the rules of the internal labor regulation, that is, the relations of equality between it and the employer are replaced by relations power-subordination.
Labor law system
Labor law is a set of interrelated groups of institutions and the norms of law that make up a single holistic system. In the labor law system, two parts can be distinguished - general and special. Each of the parts regulates a certain steep issue.
a common partincludes legal norms that determine the most fundamental approaches to legal regulation of labor relations in general. It includes rules regulating: the subject of the industry, the principles, goals and objectives of labor law, the rules of action of labor standards in time and in space and in the circle of persons, the basis of the emergence of labor relations, etc.
IN special partlabor law is combined by norms and institutions governing individual aspects of labor relations: the procedure for admission to work and dismissal, labor, labor time and resting time, guarantees and compensation, labor disputes, etc.
Sources of labor law
Sources of labor law are the normative acts of the most different level, containing legal norms.
The main place among the sources of labor law is occupied Constitution of the Russian Federation,in which the main labor rights and freedoms of citizens are enshrined, as well as guarantees their implementation. In accordance with Part 1 of Art. 15 of the Constitution of the Russian Federation, it has the highest legal force, direct effect and applies throughout the Russian Federation.
The Constitution of the Russian Federation legislatively enshrines the right of every citizen to freedom of difficulty, a ban on forced labor, the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than the federal law of the minimum wage, the right For protection against unemployment. She recognizes the right of employees to individual and collective labor disputes using the methods of their permission established by the federal law, including the right to strike.
The Constitution also guarantees the right to rest on the employment contract. The employee who has entered into an employment contract is guaranteed by the federal law of working hours, weekends and holidays paid for annual leave.
In h. 4 tbsp. 15 The Constitution of the Russian Federation recorded: "Generally accepted principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If other rules are established by the International Agreement of the Russian Federation than the rules of the International Treaty provided for by law, then the rules of the International Treaty applies. " Therefore, the second important source of labor law of Russia is international treaties (Convention).
In the field of labor relations, international legal norms contained in numerous conventions of the International Labor Organization (ILO) are of paramount importance (although Russia has ratified not all prisoners under the auspices of this organization of the Convention).
Next on legal strength the source of labor law is federal Constitutional Lawsand federal laws.Among them, the main source of labor law is Labor Code of the Russian Federation(TK RF). He entered into force on February 1, 2002 and consists of six parts, 14 sections, 62 chapters and 424 articles. The norms of labor law, contained in other laws, must comply with the Labor Code of the Russian Federation. In the case of contradictions between this code and other federal laws containing the norms of labor law, the Labor Code of the Russian Federation applies. If the newly adopted federal law contradicts the Labor Code of the Russian Federation, then this federal law applies subject to appropriate changes and additions to this Code.
The next step in the hierarchy of the sources of labor law is occupied by subtitle acts, among which the dominant place belongs deconsions of the President of the Russian Federation,regulating public relations in the field of labor. Also for subtitual acts as sources of labor law relate to decisions of the Government of the Russian Federation.Government decisions containing labor law norms should not contradict the Labor Code of the Russian Federation, other federal laws and decrees of the President of the Russian Federation.
Resolutions, instructions and explanations of the Federal Service for Labor and Employment(until April 2004 - Ministry of Labor of the Russian Federation) is the following sources of labor law. These acts are usually published in order to give the basis for consolidating relevant provisions at the local level, to ensure the correct, uniform interpretation and application, explanation of labor laws. Other federal executive bodies may publish acts containing labor law norms within the limits provided for by federal laws, decrees of the President of the Russian Federation, the Resolutions of the Government of the Russian Federation. The regulatory legal acts of the Federal Service for Labor and Employment should not contradict the Labor Code of the Russian Federation, other federal laws, decree of the President of the Russian Federation and the regulations of the Government of the Russian Federation.
Laws and other regulatory legal acts of constituent entities of the Russian Federationthere may also be sources of labor law. They are built on the same scheme as the above-mentioned federal regulatory legal acts. Laws and other regulatory legal acts of the constituent entities of the Russian Federation, containing the norms of labor law, should not be contrary to the Labor Code of the Russian Federation,
Other federal laws, decrees of the President of the Russian Federation, the decrees of the Government of the Russian Federation and the regulatory legal acts of the federal executive authorities.
Within its competence, documents containing labor law standards can also take local governments(City Duma, Administration, City Hall, Sencons, etc.). Such sources of labor law are valid only in the territory of the relevant municipality.
Wide distribution currently received the acts concluded at a different level agreement between employees (in the person of their representatives) and employers. These acts are the result of the parties to the parties participating in the negotiations on an equal basis. They can be like two (representatives of employees and representatives of the employer) and tripartite (third party - representatives of the state). Participants in agreements on the basis of bilateral and tripartite cooperation are authorized by the state to the appropriate rule-making in the field of labor.
Finally, a specific source of labor law are local regulations,i.e., acts acting within the limits of only the organization in which they were adopted (from LAT. locus- a place). Local regulations containing labor law standards are made by the employer within their competence in accordance with the laws and other regulatory legal acts, collective agreement, agreements. You can highlight the following differences in this type of source of labor law:
1) Local acts are valid within a particular organization (including branches and representative offices);
2) basically the action is limited in time;
3) they should not contradict the above regulatory legal acts, reduce the level of legal and social guarantees of workers established there;
4) Local acts reflect the specifics of production, nature and profile of organizations and take into account their economic opportunities.
An example of local regulations can serve as the rules of the internal labor regulation, the provision on the bonus or the position of the organization on the remuneration on the results of work for the year, etc.
Labor legal relations
Labor legal relationship- This is a legal attitude based on the employee and the employer, according to
one party (employee) undertakes to personally perform a certain labor function (work on a certain specialty, qualifications or position), obeying the rules of the internal employment regulations established by the employer, and the other party (employer) undertakes to provide an employee to work as provided for by the employment contract, to ensure appropriate conditions for its labor And also timely pay the work of the employee.
Elements of labor legal relationship are its object, subjects (parties) and content, i.e., the subjective rights and obligations of the parties.
The object of labor relationship is a work function paid by the employee paid by the employer.
