Применение к трудовому договору положений гражданского законодательства о недействительности сделок
The part is devoted to employment contract.
Medical workers are a special subject of labour law because of specific character and conditions of their activity that determine the necessity to utilize differentiated approach to making labour contracts with them.
The author considers an actual problem of acknowledgement a civil contract as a labour contract. Attributes of labour and civil contracts are analyzed, their correlation is determined. Criteria used for differentiation of labour and civil contracts in juridical practice are outlined. Several features of the acknowledgement of civil contract as a labour one are outlined on the basis of materials of juridical practice. The theses conclude that subject of a contract is the most important criterion.
High-powered incentives are still often considered in Russia as an undoubtedly efficient tool to overcome moral hazard problem. This point of view remains popular despite the failure of incentive contracts in the motivation system of the US CEO and the recent theoretical advancements which help to explain the reasons for this failure by so called negative contract externalities. The causes and consequences of high-powered motivation system which became widespread in the USA at the end of the twentieth century are described in the paper. It cautions against its thoughtless institutional transplantation totally inspired by the desire to create incentives which are strong enough to prevent the opportunistic behavior and calls attention to the danger to create incentives which are excessively strong.
The recent amendments to the civil law show an evident trend of strengthening the influence of civil law in the exclusive jurisdiction of labour law. Increasingly, judicial practice resorts to some conditions of labour contracts with the principals of a company based on the federal laws On Limited Liability Companies and On Public Companies to rule major transactions and related party transactions valid. At that, recent Article 53 of the Russian Federation Civil Code in point 4 stipulates that the relations between a legal person and the persons belonging to it are subject to the code and other laws on legal persons, which provided grounds to some civil law experts consider such practice legal and justified. However, Chapter 43 of the Civil Code on the features of legal regulation of the labour of the head of a company and the members of collective executive body of the company remained unchanged. In turn, the rules of the latter as well as of the Civil Code in general do not provide for the ways of challenging employment contracts due to interest and violating the rules of entering into a major transaction. The paper stresses the contradictory nature of the case practice on challenging labour contracts with the principal. Another example of interpreting civil law is challenging the conditions of labour contract within bankruptcy cases. The Federal Law On Insolvency (Bankruptcy) makes it possible to apply to labour contract the rules on invalid transaction under the law and civil legislation. The paper shows the priority as to bankruptcy law the provisions of legal legislation which do not consider labour contract invalid and hence do not require charging salary from the employees. The issue is proposed to be solved by amending the legislation. In particular, rendering an employment contract invalid and its legal consequences should be specified in the Labour Code.