Issue 3 (21) 2013

DrachukMA_ONCE AGAIN TO DISCUSSION OF A LABOUR CONTRACT AS A LEGAL SOURCE (IS MEMORY L.YU. BUGROVA)

ONCE AGAIN TO DISCUSSION OF A LABOUR CONTRACT AS A LEGAL SOURCE (IS MEMORY L.YU. BUGROVA)

M.A. Drachuk

Omsk state University named after F.M. Dostoevsky
100/1, 50 years of trade Unions st., Omsk, 644065
e-mail:This email address is being protected from spambots. You need JavaScript enabled to view it.

Abstract: In this article the author reiterates the available science discussion about the possibility of referring the employment contract to the sources of labour law in the light of the studies that have been conducted by Professor L.Yu. Bugrov in his scientific works. Supporting the idea that the employment contract has specific features and content, allowing him to exist in the form of actual labor relations, the author refers to the analysis of separate arguments in support of this position. In particular, evidence of possible non-documentary form the employment contract are the provisions of labor legislation on the conditions of the employment agreement, formulated by the type of accession to the normative model of hiring labour, which many authors have termed as a derivative (or normative) the employment contract conditions. The position of the legislator about necessity and expediency of the preset conditions of the employment contract is connected with the fact that his goal now is to balance the interests of workers, employers and the authorities, which is impossible without the derivatives of the basic conditions of the employment contract as a form of labour organization in the economy and formation of its differences from other forms of the employment contract of state and municipal employees and the self-employment of various kinds, often a civil-legal nature and types of regulation. On the basis of sectoral contrast civil and трудоправовой models of organization of work in last seen presumption “unreasonableness” of the employee as opposing the General civil status of the subject property turnover and recruitment of works (services) according to the norms of civil law. Therefore, the normative content filling of the model employment contract state forms the protective function of labour legislation for alignment of the legal status of the employee and the employer.

It was specifically noted that a number of derivatives of detention conditions of the employment agreement also form local normative acts (internal documents) of legal entities and individual entrepreneurs in the sectoral understanding of the past. This allows us to conclude on the normative nature of the employment contract and the possibility of referring to sources of labour law.

The normativity of employment contract should be gradually reduced through clear delimitation of its content with the acts of the local level (corporate) regulation – in this case, the contractual nature could dominate the normative component of the employment contract and gave would latest features of the transaction rather than a source of labour law, which ultimately would strengthen the beginning of individualization of the legal status of the employee within objectively existing manifestations of his “human factor”.

 Keywords: employment contract; a source of law; local acts of the employer

Bibliograficheskij spisok

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2. Bugrov L.Ju. Problemy svobody truda v trudovom prave Rossii. Perm': Izd-vo Perm. un-ta, 1992. 236 c.

3. Kurs rossijskogo trudovogo prava. T. 3: Trudovoj dogovor / Nauch. red. toma d-r jurid. nauk, professor E.B. Hohlov / Kollektiv avtorov. SPb.: Izdatel'stvo R. Aslanova «Juridicheskij centr Press», 2007. 656 s.

4. Lushnikova M.V., Lushnikov A.M. Ocherki teorii trudovogo prava. S.-Pb: Juridicheskij centr «Press», 2006. 940 s.

5. Trudovoj kodeks Rossijskoj Federacii: federal'nyj zakon №197-FZ ot 30.12.2001 // Sobranie zakonodatel'stva RF. 2002. №1 (Chast' 1). St. 3.