Socially dangerous consequences in official crimes. Protection of the rights and legitimate interests of citizens in court on remuneration issues Protected by law interests of society or the state

Most administrative researchers see the realization of the right of citizens to appeal to state authorities and local self-government bodies most often in filing a complaint.

Considering the meaning and purpose of the complaint, D.N. Bakhrakh draws attention to the fact that “a complaint filed by a citizen against decisions, actions (inaction) of official bodies is an important balancing point. If one subject of administrative and legal interaction - a government body or a local self-government body - has and exercises the right to issue legal acts of management, then another subject - a citizen - in turn has the right to appeal against the issued act, demand its revision or cancellation ”^].

After all, it is known that administrative legal relations are characterized by a slightly different position of the participants in comparison, for example, with civil legal relations. The latter relations are built on the basis of the legal equality of the subjects, while administrative legal relationship this quality is not provided. In these conditions, the rights of a non-authoritative subject - a citizen - in comparison with the rights of an imperious subject and are balanced by the right to appeal against his actions or inaction.

According to D.N. Bakhrakha, “... from the point of view of legal properties, complaints can be divided into: 1) administrative, i.e. considered out of court, in an administrative order; 2) judicial, considered by the courts in the process of administering justice in the order of criminal, civil administrative or constitutional proceedings ”^].

We are primarily interested in administrative complaints, of which, based on legal grounds, general and special are highlighted. On the the present stage the right to a general complaint is an absolute, inalienable and practically unlimited right of a citizen. Any person with general legal capacity can file a general complaint with any official and for any reason and issue.

With regard to the subject of the complaint, it should be noted that the act as a whole, that is, the decision, action (inaction) of an official or a public authority or local government body as a whole, can be appealed.

"The basis for filing a complaint is the assessment of these decisions, actions (inaction) of official bodies, their officials on the part of citizens as unlawful, illegal."

Regulated by the Federal Law of May 2, 2006 No. 59-FZ "On the Procedure for Considering Citizens 'Appeals", the procedure for considering citizens' appeals applies to all appeals from citizens, with the exception of appeals that are subject to consideration in accordance with the procedure established by federal constitutional laws and other federal laws"(Part 2 of article 1). It is these appeals (complaints) that act as “special” ones.

Considering the essence of a special complaint, it should be noted that it can be submitted in a much narrower spectrum than a general complaint. At the same time, “general and special complaints are not competing elements, as well as the right to file a general and special complaint among themselves. These types of administrative complaints complement each other. "

Special administrative complaints include complaints:

a) on acts of tax authorities, Part 1 of Section VII Tax Code Russian Federation dated July 31, 1998 No. 146-FZ;
b) on decisions on cases of administrative offenses of Art. 1 ch. 30 of the Code of Administrative Offenses of the Russian Federation of December 30, 2001 No. 195-FZ;
c) arising from the relations that develop within the collectives of organizations and public associations;
d) served by persons with special legal status(refugees, internally displaced persons, etc.)
e) in the sphere administrative appeal decisions and actions (inaction) of the subjects of the electoral process - in the legislation on elections.

Also special order consideration of complaints is established by the Federal Constitutional Law of February 26, 1997 No. 1-FKZ “On the Commissioner for Human Rights in the Russian Federation”. As the conditions for the admissibility of complaints, it was established that it must be transferred to the Commissioner no later than one year from the date of violation of the applicant's rights and freedoms or from the day when the applicant became aware of their violation. The Ombudsman considers complaints about decisions or actions (inaction) government agencies, local authorities, officials, civil servants, if the applicant appealed against these decisions or actions (inaction) in a judicial or administrative procedure, but does not agree with the decisions taken on his complaint. Therefore, the complaint must be accompanied by copies of the decisions taken following the consideration of the complaint in a judicial or administrative order.

A complaint to the Commissioner must be personified, come from specific individuals (citizens of Russia, stateless persons and foreign citizens located on the territory of the Russian Federation), and also contain information about the violation, in the opinion of the applicant, of his rights and freedoms.

Acceptance by the Ombudsman for consideration of other appeals that are not related to his mandate for the implementation of state protection of human rights is an unacceptable interference in the competence of the legislative, executive and judicial authorities.

Expressing his point of view regarding the administrative complaint, L.L. Popov, believes that "citizens' appeals cannot be reduced to the actual administrative complaints, but also include proposals and statements, which is reflected in the current legislation."

Yu.A. Tikhomirov, who focuses specifically on the judicial appeal of actions and decisions that violate the rights of citizens, pointing out, nevertheless, that “sometimes an appeal to the court should be preceded by a complaint addressed to a higher organization, but it is judicial order the appeal is recognized by him as a leader ”.

Yu.M. Kozlov directly calls an administrative complaint "a means of protecting the rights and interests of citizens." However, he does not consider the very fact of filing a complaint a remedy. In his opinion, “this is obvious for two reasons: not all complaints are justified, often they are the result of delusion of their authors; legally imperious and binding decision the complaint can only be made by an authorized body (official) ”.

The approach of Yu.M. Kozlov to consider complaints seems reasonable, because the citizen himself does not have the authority to protect his actually violated right. “These powers are possessed by an official to whom a citizen applies with a complaint. And it is his decision, which gives rise to the implementation of the necessary measures to restore or properly fulfill the violated right of a citizen, and is considered a real means of protecting the rights and legitimate interests of citizens. "

Thus, we can conclude that this type of appeal as a complaint is one of the means of protecting violated rights, freedoms or legal interests of a citizen. In turn, officials of public authorities and local self-government bodies, to which a citizen applies, are obliged to make a decision that will be aimed at their restoration and protection.

As part of the analysis, regarding this type of appeal as a complaint, we would also like to draw your attention to the fact that it is legally defined as a request from a citizen to restore or protect his violated rights, freedoms or legitimate interests or the rights, freedoms or legitimate interests of others. persons.

Although we do not agree that the complaint can be interpreted as a request. Indeed, when compiling it, a citizen sets out the circumstances, provides evidence confirming the violation of his rights and substantiates his claims aimed at protecting and restoring them. Therefore, in our opinion, a complaint is nothing more than a demand.

For example, B.V. Maslov, in his dissertation research, reasonably assumes that the legislative definition of a complaint should be stated as “a citizen's demand to restore his violated rights, freedoms or legitimate interests or the rights, freedoms or legitimate interests of others”. We agree with his point of view that “the use of the term“ request ”in the law does not fully correspond to the content of the constitutional right of a citizen to appeal, since the law must correspond to the obligation to perform certain actions on the part of the state. A request in this sense provides an alternative to the behavior of the subjects of management, which in turn may entail restrictions in the exercise of the citizen's right to appeal. "

Also, the author draws attention to the need to remove the words "or protection" from the legislative definition. "Such an amendment is necessary, since it is impossible to protect" violated rights, freedoms or legitimate interests ", they have already been violated, they can only be restored" ^]. But this position of the author, in our opinion, does not seem entirely correct, since the complaint may contain a message not only about a committed violation of the right that requires restoration, but also about an impending violation that requires protection.

Thus, in our opinion, in the Federal Law "On the Procedure for Considering Citizens' Appeals in the Russian Federation", a citizen's complaint can be defined as a citizen's demand to restore or protect his violated rights, freedoms or legitimate interests or the rights, freedoms or legitimate interests of others.

LIST OF USED Sources

1. Bakhrakh D.N., Semenov A.V. The concept " administrative complaint»// Administrative law at the turn of the century: Interuniversity collection of scientific papers. Yekaterinburg: USU; Ural State Law Academy, 2003.S. 118-131.
2. Bakhrakh D.N., Semenov A.V. The concept of "administrative complaint" // Administrative law at the turn of the century: Interuniversity collection of scientific papers. Yekaterinburg: USU; Ural State Law Academy, 2003.S. 118-131.
3. Bakhrakh D.N., Russian B.V., Starilov Yu.N. Administrative law: Textbook for universities. 2nd ed., Rev. and add. M., 2008.S. 145.
4. SZRF. 2006. No. 19. Art. 2060.
5. Bakhrakh D.N., Semenov A.V. The concept of "administrative complaint" // Administrative law at the turn of the century: Interuniversity collection of scientific papers. Yekaterinburg: USU; Ural State Law Academy, 2003.S. 118-131.
6. SZRF. 1998. No. 31. Art. 3824.
7. SZRF. 2002. No. 1 (part 1).
8. Federal Laws of December 26, 1995 No. 208-FZ "On Joint Stock Companies" // SZ RF. 1996. No. 1. Art. one; dated January 12, 1996 No. 7-FZ "On non-profit organizations" // SZ RF. 1996. No. 3. Art. 145; of September 26, 1997 No. 125-FZ "On freedom of conscience and on religious associations" // SZ RF. 1997. No. 39. Art. 4465; from May 19, 1995 № 82-FZ "On public associations" // SZ RF. 1995. No. 21. Art. 1930; and etc.
9. Federal Law of February 18, 1993 No. 4528-1 "On Refugees" // Bulletin of the SND and the RF Armed Forces. 1993. No. 12. Art. 425; RF Law of February 19, 1993 No. 4530- "On Forced Migrants" // SZ RF. 1995. No. 52. Art. 5110 // SZ RF. 2005. No. 1 (part 2). Art. 107.
10. Federal Laws of May 18, 2005 No. 51-FZ "On the election of deputies of the State Duma Federal Assembly Russian Federation "// SZ RF. 2005. No. 21. Art. 1919; from November 26, 1996 № 138-FZ "On ensuring the constitutional rights of citizens of the Russian Federation to elect and be elected to local government bodies" // SZ RF. 1996. No. 49. Art. 5497; and etc.
11. NWSRF. 1997. No. 9. Art. 1011.
12. Tambovtsev V.V. Commentary on the Federal Constitutional Law “On the Commissioner for Human Rights in the Russian Federation”. M., 2006.S. 95.
13. Popov L.L. Administrative law. M., 2005.S. 203.
14. Tikhomirov Yu.A. About the concept of development administrative law and process // State and law. M., 1998. No. 1. P.42.
15. Kozlov Yu.M. Reception and consideration of complaints of workers in the bodies of the Soviet government controlled// Soviet state and law. Moscow: Nauka, 1954, No. 4. P. 42-44.
16. Alekhin A.P., Kozlov Yu.M. Administrative law of the Russian Federation. M., 1999. P. 35.
17. See: Art. 4 of the Federal Law of May 2, 2006 No. 59-FZ (as amended on May 7, 2013) "On the Procedure for Considering Citizens' Appeals in the Russian Federation" // SZ RF. 2006. No. 19. Art. 2060.
18. Maslov B.V. Institute of Citizens' Appeals in Administrative Law. Abstract of thesis. dis. ... Cand. jurid. sciences. M., 2008.S. 22.

In connection with questions arising from the courts in cases of abuse of office and abuse of office, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation,

decides:

1. To draw the attention of the courts to the direction criminal liability for crimes against interests public service to ensure the protection of citizens from corruption and other socially dangerous acts committed by officials in the service. Persons abusing their official powers or exceeding their official powers encroach on the activities of state bodies, local self-government bodies, state and municipal institutions, state corporations, the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation regulated by regulatory legal acts, as a result of which the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law are violated.

2. When considering criminal cases of abuse of office (Article 285 of the Criminal Code of the Russian Federation) and abuse of office (Article 286 of the Criminal Code of the Russian Federation), it is necessary to establish whether the defendant is the subject of these crimes - an official. In this case, it should be assumed that in accordance with paragraph 1 of the notes to Article 285 of the Criminal Code of the Russian Federation, officials are recognized as persons who permanently, temporarily or by special authority perform the functions of a representative of the government or perform organizational and administrative, administrative and economic functions in state bodies, local authorities. self-government, state and municipal institutions, state corporations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

3. Acting as a representative of authority should include persons vested with the rights and obligations to exercise the functions of bodies of legislative, executive or judiciary, as well as, based on the content of the note to Article 318 of the Criminal Code of the Russian Federation, other persons of law enforcement or regulatory bodies endowed, in the manner prescribed by law, with administrative powers in relation to persons who are not dependent on them, or the right to make decisions that are binding on citizens, organizations, institutions, regardless of their departmental affiliation and forms of ownership.

4. Organizational and administrative functions should be understood as the powers of an official, which are associated with the management of the labor collective of a state body, state or municipal institution (his structural unit) or by individual employees in their service subordination, with the formation of the staff and the definition of the labor functions of employees, with the organization of the procedure for the passage of service, the application of incentives or reward measures, the imposition of disciplinary sanctions, etc.

Organizational and administrative functions include the powers of decision-making persons who have legal significance and entailing certain legal consequences (for example, on extradition health worker certificate of temporary incapacity for work, established by the employee of the institution medical and social expertise the fact that a citizen has a disability, taking exams and giving marks by a member of the state examination (certification) commission).

5. As administrative and economic functions should be considered the powers of an official to manage and dispose of property and (or) in cash on the balance sheet and (or) bank accounts of organizations, institutions, military units and divisions, as well as to perform other actions (for example, to make decisions on the accrual wages, bonuses, monitoring the movement of material assets, determining the order of their storage, accounting and control over their expenditure).

6. Fulfillment of the functions of an official by special authority means that a person performs the functions of a representative of authority, performs organizational and administrative or administrative-economic functions assigned to him by law, other regulatory legal act, order or order of a higher official or an authorized body or official (for example, the function of a juror). The functions of an official by special authority can be carried out for a certain time or once, and can also be combined with the main work.

In the temporary performance of the functions of an official or in the performance of them by special authority, a person may be recognized as an official only during the period of performance of the functions assigned to him.

If a person appointed to a position in violation of the requirements or restrictions established by law or other regulatory legal acts, a candidate for this position (for example, in the absence of a diploma of higher vocational education, the necessary length of service, in the presence of a criminal record, etc.), out of selfish or other personal interest, used his official powers against the interests of the service, or performed actions that clearly go beyond the limits of his authority, entailing a significant violation of the rights and legitimate interests of citizens or organizations or protected the law of the interests of society or the state, then such actions should be qualified accordingly as abuse of official powers or as exceeding official powers.

7. In the Armed Forces of the Russian Federation, other troops, military (special) formations and bodies performing functions to ensure the defense and security of the state, officials who permanently, temporarily or by special authority perform organizational and administrative and (or) administrative and economic functions , can be chiefs by official position and (or) military rank.

Commanders by official position are persons to whom military personnel are subordinate in service. These should include:

persons holding relevant military positions according to the state (for example, the commander of a squad, company, head of the regiment's clothing service);

persons temporarily acting on the relevant military post, as well as temporarily acting as an official by special authority.

Civilian personnel are supervisors for subordinate military personnel in accordance with their established position.

Chiefs in military rank are defined in Article 36 of the Charter of the Internal Service of the Armed Forces of the Russian Federation (in particular, sergeants and foremen are chiefs in military rank for soldiers and sailors of only one military unit with them).

8. The subject of the crimes provided for in Part 1 of Article 285 of the Criminal Code of the Russian Federation and Part 1 of Article 286 of the Criminal Code of the Russian Federation is a person performing the functions of a representative of the authorities, performing organizational and administrative and / or administrative functions in a state body, local self-government body, state and a municipal institution, a state corporation, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, and at the same time does not hold a state position of the Russian Federation or a state position of subjects of the Russian Federation in these bodies.

9. When deciding on the subject of a crime provided for in Part 2 of Article 285 of the Criminal Code of the Russian Federation or Part 2 of Article 286 of the Criminal Code of the Russian Federation, the courts should proceed from paragraphs 2 and 3 of the Notes to Article 285 of the Criminal Code of the Russian Federation, according to which persons holding public positions of the Russian Federation, means persons holding public offices established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of federal state bodies (paragraph 2 of the notes), and persons holding public offices of subjects of the Russian Federation are persons holding offices established by constitutions or by the charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies of the constituent entities of the Russian Federation (clause 3 of the notes). The consolidated list of government positions in the Russian Federation was approved by Decree of the President of the Russian Federation of January 11, 1995 N 32 (as amended on December 1, 2008).

10. Along with a person holding a public office of the Russian Federation or a public office of a constituent entity of the Russian Federation, the subject of responsibility under part 2 of Article 285 of the Criminal Code of the Russian Federation and part 2 of Article 286 of the Criminal Code of the Russian Federation is the head of the local government, which should be understood only as the head of the municipal formation - higher an official of the municipality, endowed by the charter of the municipality with its own powers to resolve issues local significance(Article 36 of the Federal Law of October 6, 2003 N 131-FZ "On general principles organizations of local self-government in the Russian Federation ").

11. Courts should distinguish criminal actions of officials from those of other persons performing managerial functions in a commercial or other organization, whose responsibility for abuse of their powers is established by Article 201 of the Criminal Code of the Russian Federation.

The subjects of this crime are persons performing managerial functions in a commercial or other organization, the main purpose of which is to make a profit, as well as in non-profit organization which is not a state body, local government body, state or municipal institution, a public corporation.

Persons performing managerial functions in a commercial or other organization include persons performing the functions of a sole proprietor. executive body, a member of the board of directors or other collegial executive body, as well as persons who permanently, temporarily or by special authority perform organizational and administrative or administrative functions in these organizations (for example, a director, CEO, corporate executive joint stock company, the chairman of the production or consumer cooperative, head of a public association, religious organization).

In cases where these persons use their powers contrary to the legitimate interests of a commercial or other organization and in order to derive benefits and advantages for themselves or others, or harm others, they are subject to liability under Article 201 of the Criminal Code of the Russian Federation, if this act entailed the infliction of significant harm to the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law.

12. If, as a result of abuse of authority by a person performing managerial functions in a commercial or other organization, harm is caused to the interests of an exclusively commercial or other organization that is not a state or municipal enterprise, criminal prosecution is carried out at the request of the head of this organization or with his consent (Article 23 of the Code of Criminal Procedure of the Russian Federation). In the event of harm to the interests of other organizations (for example, a non-profit organization, a state or municipal enterprise), as well as the interests of citizens, society or the state, criminal prosecution for abuse of power in a commercial or other organization is carried out on a general basis (paragraph 3 of the Notes to Article 201 of the Criminal Code RF).

When, as a result of abuse of authority by the head of a commercial or other organization, harm is inflicted exclusively on this organization, the criminal prosecution of the head is carried out at the request or with the consent of the management body of the organization, whose competence includes the election or appointment of the head, as well as with the consent of a member of the management body of the organization or persons who have the right to make decisions that determine the activities of a legal entity.

13. In cases where an act containing signs of abuse of office (Article 285 of the Criminal Code of the Russian Federation) or abuse of office (Article 286 of the Criminal Code of the Russian Federation) was committed by an official to eliminate a danger that directly threatens the individual, the interests of society or the state protected by law, and this the danger could not be eliminated by other means, then such an act cannot be recognized as criminal, provided that the limits were not exceeded urgent need(Article 39 of the Criminal Code of the Russian Federation).

14. Acts of an official connected with the use of official powers that have caused damage to interests protected by criminal law cannot be recognized as criminal if they were committed in pursuance of a binding order or order (Article 42 of the Criminal Code of the Russian Federation).

The official who committed willful crime, provided for by Article 285 of the Criminal Code of the Russian Federation or Article 286 of the Criminal Code of the Russian Federation, in pursuance of an order or instruction he knows to be unlawful, bears criminal responsibility on a general basis. In this case, the actions of a superior official who issued such an order or order should be considered, if there are grounds for that, as incitement to commit a crime or the organization of this crime and qualified under the relevant article of the Special Part of the Criminal Code of the Russian Federation with reference to part 3 or part 4 of Article 33 Of the Criminal Code of the Russian Federation.

An official who issued a deliberately illegal order or order to a subordinate who did not realize the illegality of such an order or order and executed it, shall be liable as the perpetrator of the crime.

15. Under the use by an official of his official powers contrary to the interests of the service (Article 285 of the Criminal Code of the Russian Federation), the courts should understand the commission of such acts that, although they were directly related to the exercise by the official of his rights and obligations, were not caused by official necessity and objectively contradicted both general the tasks and requirements for the state apparatus and the apparatus of local self-government bodies, as well as those goals and objectives for the achievement of which the official was endowed with appropriate official powers. In particular, the actions of an official who, out of selfish or other personal interest, performs actions within the scope of his official powers in the absence of mandatory conditions or grounds for their commission (for example, issuing driving license persons who have not passed the mandatory exam; hiring persons who do not actually fulfill their labor duties; the release by the commanders (chiefs) of subordinates from the execution of the duties assigned to them with a referral to work in commercial organizations or the arrangement of the personal household of an official).

Responsibility under Article 285 of the Criminal Code of the Russian Federation also occurs for the deliberate failure by an official to fulfill his duties in the event that such inaction was committed out of selfish or other personal interest, objectively contradicted the goals and objectives for the achievement of which the official was endowed with the appropriate official powers, and entailed a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law.

16. When deciding whether the actions (inaction) of the defendant contain corpus delicti under Article 285 of the Criminal Code of the Russian Federation, under the signs subjective side of this crime, in addition to intent, it should be understood:

selfish interest- the desire of an official by committing illegal actions to obtain benefits for himself or other persons property nature not related to the illegal gratuitous circulation of property in their own favor or the benefit of other persons (for example, illegal receipt of benefits, loans, exemption from any property costs, return of property, repayment of debt, payment for services, payment of taxes, etc.);

other personal interest - the desire of an official to benefit from a non-property nature, due to such motives as careerism, nepotism, a desire to embellish the actual situation, receive a mutual service, enlist support in solving any issue, hide his incompetence, etc.

Protectionism, which means illegal assistance in employment, promotion, promotion of a subordinate, as well as other patronage in the service, committed out of selfish or other personal interest, should be considered as the use by an official of his official powers against the interests of the service.

17. In contrast to the theft of someone else's property with the use of his official position, abuse of office out of selfish interest is formed by such acts of an official that are either not associated with the seizure of someone else's property (for example, obtaining property benefits from the use of property for other purposes), or are associated with temporary and (or) the onerous seizure of property.

If the use by an official of his official powers resulted in the theft of someone else's property, when it was actually seized, the deed is fully covered by part 3 of Article 159 of the Criminal Code of the Russian Federation or part 3 of Article 160 of the Criminal Code of the Russian Federation and does not require additional qualifications under Article 285 of the Criminal Code of the Russian Federation.

In cases where an official, using his official powers, along with the theft of someone else's property, has committed other illegal actions related to abuse of official powers out of selfish or other personal interest, what he has done should be classified according to the totality of these crimes.

Likewise, based on the provisions of Article 17 of the Criminal Code of the Russian Federation, the issue related to the legal assessment of the actions of an official who has committed an official forgery should be resolved. In cases where such a person, in connection with the performance of his official duties, has made deliberately false information or corrections in official documents that distort their actual content, the deed must be qualified under Article 292 of the Criminal Code of the Russian Federation. If, along with the commission of actions entailing criminal liability under Article 285 of the Criminal Code of the Russian Federation, if they commit an official forgery, then the deed is subject to qualification in conjunction with Article 292 of the Criminal Code of the Russian Federation.

18. In cases of abuse of office and abuse of power, the courts should, along with other circumstances of the case, find out and indicate in the judgment which rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law have been violated and whether the inflicted harm to these rights and interests in causal connection with the violation of his official powers by the official.

Under a significant violation of the rights of citizens or organizations as a result of abuse of office or abuse of office, one should understand the violation of the rights and freedoms of individuals and legal entities guaranteed by generally recognized principles and norms. international law, The Constitution of the Russian Federation (for example, the right to respect for the honor and dignity of the individual, personal and family life of citizens, the right to inviolability of the home and privacy of correspondence, telephone conversations, postal, telegraph and other messages, as well as the right to judicial protection and access to justice, including the rights to effective remedy legal protection in a state body and compensation for damage caused by a crime, etc.). When assessing the materiality of the harm, it is necessary to take into account the degree of negative impact of the unlawful act on the normal operation of the organization, the nature and amount of material damage suffered by it, the number of injured citizens, the severity of physical, moral or property damage caused to them, etc.

Violation of the legitimate interests of citizens or organizations as a result of abuse of official powers or abuse of official powers should be understood, in particular, the creation of obstacles in the satisfaction of citizens or organizations of their needs that do not contradict the norms of law and public morality (for example, the creation by an official of obstacles that limit the ability to choose in cases stipulated by law, at its own discretion, the organization for cooperation).

19. In contrast to the liability provided for in Article 285 of the Criminal Code of the Russian Federation for the commission of actions (inaction) within its competence, contrary to the interests of the service, responsibility for exceeding official powers (Article 286 of the Criminal Code of the Russian Federation) occurs in the event that an official commits active actions that clearly go beyond the limits of his powers. that entailed a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law, if at the same time the official was aware that he was acting outside the powers assigned to him.

Exceeding official powers can be expressed, for example, in the commission by an official in the performance of official duties of actions that:

refer to the powers of another official (superior or equal in status);

can be committed only in the presence of special circumstances specified in the law or by-law (for example, the use of weapons against a minor, if his actions did not create a real danger to the life of other persons);

are committed by an official alone, however, they can be performed only collegially or in accordance with the procedure established by law, in agreement with another official or body;

no one and under no circumstances has the right to commit.

Based on the disposition of Article 286 of the Criminal Code of the Russian Federation, the motive of the crime does not matter for qualifying the act as an abuse of office.

20. When qualifying the actions of a person under paragraph "b" of Part 3 of Article 286 of the Criminal Code of the Russian Federation, courts under the use of weapons or special means should understand intentional actions associated with the use by a person of the damaging properties of these items, or their use for their intended purpose.

Delimiting the abuse of office committed with the use of weapons or special means from the lawful actions of officials, the courts should take into account that the grounds, conditions and limits for the use of weapons or special means are defined in the relevant regulatory legal acts of the Russian Federation (for example, in the Federal Law of 3 April 1995 N 40-FZ "On the Federal Security Service", Federal Law of February 6, 1997 N 27-FZ "On the Internal Troops of the Ministry of Internal Affairs of the Russian Federation", Federal Law of May 27, 1996 N 57-FZ "On state protection", the Law of the Russian Federation of April 18, 1991 N 1026-1 "On the police").

Special means include rubber sticks, handcuffs, tear gas, water cannons, armored vehicles, means of destruction of obstacles, service dogs and other means that are in service with the internal affairs bodies, internal troops, federal bodies state protection, bodies federal service security, bodies of the penal system, etc.

21. Under grave consequences as a qualifying sign of a crime, foreseen in part 3 of Article 285 of the Criminal Code of the Russian Federation and paragraph "in" part 3 of Article 286 of the Criminal Code of the Russian Federation, one should understand the consequences of committing a crime in the form of major accidents and prolonged stoppages of transport or production process, other disruption of the organization's activities, causing significant material damage, causing death by negligence, suicide or attempted suicide of the victim, etc.

22. When considering criminal cases on crimes provided for by Article 285 of the Criminal Code of the Russian Federation or Article 286 of the Criminal Code of the Russian Federation, the courts should find out which regulatory legal acts, as well as other documents, establish the rights and obligations of the accused official, bringing them into the sentence and indicate the abuse of which of these rights and obligations or the excess of which of them is imputed to him, with reference to specific norms (article, part, paragraph).

In the absence of the indicated data in the indictment or indictment, which cannot be replenished in the court session, the criminal case must be returned to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure of the Russian Federation in order to remove obstacles to its consideration by the court.

23. The courts should keep in mind that in accordance with paragraph "a" of part 1 of Article 1041 of the Criminal Code of the Russian Federation, money, valuables and other property received as a result of a crime under Article 285 of the Criminal Code of the Russian Federation, and any proceeds from this property are subject to confiscation, for the exception of property and income from it, subject to return to the legal owner.

24. When establishing the circumstances that contributed to the commission of crimes provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation, violations of the rights and freedoms of citizens, as well as other violations of the law committed during an inquiry, preliminary investigation or when considering a criminal case by a lower court, recommend to the courts in accordance with Part 4 of Article 29 of the Code of Criminal Procedure of the Russian Federation to issue particular rulings or decisions, drawing the attention of the relevant organizations and officials to these circumstances and facts of violations of the law, requiring the adoption of the necessary measures to eliminate them.

25. In connection with the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the USSR of March 30, 1990 N 4 "On judicial practice in cases of abuse of power or official position, abuse of power or official authority, negligence and official forgery ".

Chairman of the Supreme Court of the Russian Federation

V. Lebedev

Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation

Objective side crimes include, first, a socially dangerous act in the form of an action or inaction, which consists in the use by an official of his official powers against the interests of the service. In turn, the criminal use of their official powers contains two prerequisites: 1) the person acts in accordance with his official powers or directly in connection with them; 2) the official applies them against the interests of the service.

Secondly, a sign of the objective side is a socially dangerous consequence in the form of a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law. The criterion of materiality is evaluative and depends on the actual circumstances of the crime committed.

In judicial practice, a significant violation of the rights of citizens or organizations is understood as a violation of the rights and freedoms of individuals and legal entities guaranteed by generally recognized principles and norms of international law, the Constitution of the Russian Federation (for example, the right to respect for the honor and dignity of the individual, personal and family life of citizens, the right to inviolability home and privacy of correspondence, telephone conversations, postal, telegraph and other messages, as well as the right to judicial protection and access to justice, including the right to an effective remedy in a state body and compensation for damage caused by a crime, etc.).

When assessing the materiality of harm, the degree of negative impact of the unlawful act on the normal operation of the organization, the nature and amount of material damage suffered by it, the number of injured citizens, the severity of the physical, moral or property damage caused to them, etc., are taken into account.

According to clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19 "On judicial practice in cases of abuse of office and abuse of office", violation of the legitimate interests of citizens or organizations as a result of abuse of office or abuse of office means , in particular, the creation of obstacles in the satisfaction of citizens or organizations of their needs that do not contradict the norms of law and public morality (for example, the creation of obstacles by an official that restrict the ability to choose an organization for cooperation in cases provided for by law at his discretion).

The third sign of the objective side is a causal relationship that should take place between the act of an official who has abused his official powers, and the socially dangerous consequences that have come as a result of this.

Subjective side a crime consists of two mandatory features: intentional guilt and motive.

In case of abuse of official powers, the person realizes that he uses his official powers contrary to the interests of the service, foresees the possibility or inevitability of a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law, and wants the specified consequences (direct intent) or deliberately allows them or is indifferent to their offensive (indirect intent).

As a motive in this crime, the legislator included a selfish or other personal interest. Judicial practice understands selfish interest as the desire of an official, by committing illegal actions, to obtain for himself or other persons a property benefit that is not related to illegal gratuitous use of property in his own favor or the benefit of other persons (for example, illegal receipt of benefits, a loan, exemption from any or property costs, return of property, debt repayment, payment for services, payment of taxes, etc.). Another personal interest lies in the desire of an official to benefit from a non-property nature, due to such motives as careerism, nepotism, a desire to embellish the actual situation, receive a mutual service, enlist support in solving any issue, hide his incompetence, etc.

Subject

Qualified composition this crime is provided for by Part 2 of Art. 285 of the Criminal Code: abuse committed by a person holding a public office of the Russian Federation or a public office of a constituent entity of the Russian Federation, as well as by the head of a local government.

The commission of an act provided for in parts one or two of Art. 285 of the Criminal Code, entailing grave consequences, forms specially qualified staff crimes under Part 3 of Art. 285 of the Criminal Code. Grave consequences are established by the court based on the specific circumstances of the criminal case. The Plenum of the Supreme Court of the Russian Federation in clause 21 of the resolution of October 16, 2009 No. 19 understands the grave consequences of major accidents, a long stop of transport or production process, other disruption of the organization's activities, causing significant material damage, causing death by negligence, suicide or attempted murder suicide of the victim, etc.

Exceeding official powers (Article 286 of the Criminal Code).Immediate object crime is similar to the direct object of the crime specified in Art. 285 of the Criminal Code.

Additional object encroachments are the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law, as well as the health of citizens in the event that a person commits a crime under Part 3 of Art. 286 of the Criminal Code.

Objective side crime is publicly characterized dangerous act, in the form of an action that clearly goes beyond the authority of an official. Clause 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19 "On judicial practice in cases of abuse of office and abuse of office" states that abuse of office can be expressed, for example, in the commission by an official in the execution official duties of actions that:

refer to the powers of another official (superior or equal in status);

are committed by an official alone, however, they can be performed only collegially or in accordance with the procedure established by law, in agreement with another official or body;

no one and under no circumstances has the right to commit.

The socially dangerous consequences are understood as the same consequences as in Art. 285 of the Criminal Code.

Also, a mandatory sign of this corpus delicti is a causal relationship between the act of an official and the socially dangerous consequences that have occurred as a result.

By design, the composition of this crime is material, therefore the crime is considered completed from the moment of the onset of socially dangerous consequences.

Subjective side characterized by deliberate guilt in the form of direct intent: the person realizes that he clearly exceeds his official powers, foresees the possibility or inevitability of a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state, and wants the specified consequences.

Subject crimes special - official.

Skilled corpus delicti under Part 2 of Art. 286 of the Criminal Code, will be in the event that the exceeding of official powers was committed by a person holding a state position of the Russian Federation or a state position of a constituent entity of the Russian Federation, as well as the head of a local government.

Especially qualifying features this crime is: the use of violence or the threat of its use (paragraph "a" part 3 of article 286 of the Criminal Code); the use of weapons or special means (clause "b", part 3 of article 286 of the Criminal Code); infliction of grave consequences (clause "c", part 3 of article 286 of the Criminal Code).

The use of violence should be understood as the actions of the perpetrator, associated with the restriction of the victim's freedom, beating him, inflicting light, moderate harm to health, torture of the victim.

The threat of using violence occurs in cases where the perpetrator threatens the victim with the use of violence, and the victim, in turn, has sufficient grounds to fear the implementation of this threat.

According to paragraph 20 of the above-mentioned Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19, the use of weapons or special means should be understood as intentional actions associated with the use by a person of the damaging properties of these objects, or their use for their intended purpose. When defining the concept of "weapon", one should be guided by the Federal Law of December 13, 1996 No. 150-FZ "On Weapons".

Special means include rubber sticks, handcuffs, tear gas, water cannons, armored vehicles, means of destruction of obstacles, service dogs and other means that are in service with the internal affairs bodies, internal troops, federal state security bodies, federal security service bodies, and criminal executive bodies. systems, etc.

We considered the concept of grave consequences when analyzing the corpus delicti under Part 3 of Art. 285 of the Criminal Code.

Official forgery (Article 292 of the Criminal Code).Direct object crime is the normal activity of state bodies and local governments.

Subject crime acts as an official document. Federal Law No. 77-FZ of December 29, 1994 "On Mandatory Copy of Documents" defines official documents as documents adopted by the legislative, executive and judicial authorities, which are mandatory, recommendatory or informational in nature.

In science, a document means information recorded on a material carrier that has legal significance and details that allow it to be identified, and is intended for storage, use and transmission in time and space, and under an official document - a document created by a legal entity or an individual, drawn up and certified in established order... It must have a certain shape and the necessary requisites.

Objective side official forgery consists in entering into an official document: 1) false information - distorting the authenticity of the document by including in it records that do not correspond to reality; 2) corrections that distort its actual content - deletion or alteration in any way of a part of the text in an original document.

The crime in question is considered completed from the moment when false information or corrections are made in an official document that distort its actual content, regardless of the onset of the consequences. Whether a forged document was used or not is irrelevant for the composition of the official forgery.

In cases where the perpetrator uses a document forged by him to commit another crime, criminal liability arises in aggregate: for official forgery and for a crime committed using a forged document.

FROM subjective side official forgery presupposes guilt only in the form of direct intent: the guilty person realizes that he is introducing deliberately false information or corrections into an official document that distort its actual content, and wants to do so.

Criminal liability for official forgery occurs in the presence of a mercenary or other personal interest. The content of these motives was revealed when analyzing the composition of the abuse of office (Article 285 of the Criminal Code). Committing an official forgery in the absence of selfish or other personal interest may be considered a disciplinary offense.

By the subject official fraud can be an official, as well as a civil servant or an employee of a local government body who is not an official.

Part 2 of Art. 292 CC provides for liability for acts under Part 1 of Art. 292 of the Criminal Code, entailing a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law. The content of these consequences was revealed when analyzing the corpus delicti under Art. 285 of the Criminal Code.

Negligence (Article 293 of the Criminal Code).Immediate object crimes - the interests of public service and service in local government.

FROM objective side negligence is characterized by three essential features:

1. Failure to fulfill or improper fulfillment by an official of his duties. The criminal nature of the behavior of an official with negligence can be expressed in the form of both inaction (failure to fulfill his duties) and active actions (improper fulfillment of his duties). A person can be charged with non-performance or improper performance only of those duties that were assigned to him in the prescribed manner. In addition, an obligatory sign of criminal inaction is the ability to perform certain actions in specific conditions. Therefore, the lack of a real opportunity for an official to perform properly assigned duties excludes criminal liability for negligence.

Failure to perform or improper performance of official duties due to inexperience, lack of qualifications, knowledge, in the absence of bad faith or negligence in the service cannot be qualified as negligence.

2. Consequence in the form of large damage or significant violation of the rights and legitimate interests of citizens or the interests of society or the state protected by law. The concept of a significant violation of the rights and legitimate interests of citizens or the interests of society or the state protected by law is similar to that considered in the abuse of official powers. According to the footnote to Art. 293 of the Criminal Code, damage is recognized as large damage, the amount of which exceeds one million five hundred thousand rubles.

In the absence of consequences due to negligence in the service, the official's actions constitute a disciplinary offense and should not be classified as negligence.

3. The presence of a causal link between failure or improper performance by an official of his duties and causing harm.

The corpus delicti is material, the crime is considered completed from the moment of causing the consequences in the form of large damage or significant violation of the rights and legitimate interests of citizens or the interests of society or the state protected by law.

FROM subjective side negligence is characterized by carelessness in the form of frivolity or negligence. Negligence is recognized as committed out of frivolity if an official does not perform or improperly performs his official duties, foresees that his behavior may significantly violate the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law, but presumptuously expects to prevent these consequences. In case of negligence, an official does not foresee the possibility of a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law as a result of non-performance or improper performance of his duties, although with the necessary care and foresight he should and could have foreseen these consequences.

Qualified view negligence (part 2 of article 293 of the Criminal Code) is a failure to perform or improper performance by an official of his duties, which, through negligence, caused grievous harm health or death of a person.

Particularly qualifying feature negligence (part 3 of article 293 of the Criminal Code) is a failure to perform or improper performance by an official of his duties, resulting in the death of two or more persons through negligence. In the event of the death of a person or the infliction of serious harm to health due to the improper performance of his professional duties by a person who is not a special subject in the context of Art. 293 of the Criminal Code, liability arises accordingly under Part 2 of Art. 109 or part 2 of Art. 118 of the Criminal Code.

A legitimate interest is a legal authorization guaranteed by the state. It is expressed in the desire of a person to enjoy a certain social benefit, and in some cases to turn to competent authorities for protection to meet their needs that do not contradict social needs. Let us consider further in detail what constitutes a legitimate interest: concept, signs, types.

General information

There have been several scholars in the history of jurisprudence who have studied legitimate interest. The concept, signs, types of permissions were one of the first to be investigated by Shershenevich. In his work, he pointed out that people have developed the habit of defending their legal possibilities, rebelling against their violation, and showing an unfriendly attitude towards those responsible for this. Accordingly, the citizens themselves try not to go beyond their rights.

Subjective law and legitimate interest: the difference

The following point of view deserves attention. It was put forward by Gambarov. In particular, he wrote that interest alone and the provision of its protection do not give a complete picture of subjective right. In justification, he cited the following. Not all interests are protected and not all of them lead to right. A similar thought was expressed by Rozhdestvensky. He noted that if the protection of interests takes place, then the emergence of subjective rights does not always follow from this. During the Soviet era, scientists also divided these categories.

For example, Zagryatskov pointed out that violation of not only the rights of a citizen, but also his legitimate interest, may be the basis for starting administrative proceedings. Later, the legitimate interest was allocated to a separate category by Ryasentsev. He based his opinion on the articles of the Fundamentals of Civil judicial proceedings... The conclusion about the possibility to protect not only the rights, but also the interests of the victims, proceeded from Art. 2 and 6. The most acute question was raised by Remnev. He pointed out that legitimate interest and subjective right are not the same thing. The essence of the latter, according to Remnev, is the guaranteed ability of a person to perform specific actions. The satisfaction of interests is limited by objective, primarily economic conditions. This is one of the moments in which these categories do not coincide in terms of the degree of material security and security.

Legitimate interest: concept, signs, types (TGP)

The category in question should not be equated with benefits. Equally, it cannot be argued that only a procedural norm can provide a legitimate interest. The concept includes many elements, each of which can be guaranteed by one or another means and ways, legal acts and institutions. Moreover, they can have both procedural and material nature. A legitimate interest is formed from the following aspirations:

The structure of the category under consideration consists in the internal connection of these elements, their organization, one or another method of connection. The desire of a person to enjoy the good is at a higher level, arises first. After him, if necessary, there is a desire to seek protection. Legitimate interests are classified for various reasons. Depending on their affiliation, they can be civil, state, municipal, public, commercial, and so on. The former, in turn, are divided into the legitimate interests of a family member, consumer, etc.

The classification is also carried out by industry prevalence. So, there is a constitutional legitimate interest (example: the desire to improve public welfare, improve the health care system, etc.), civil, criminal procedure, and so on. Scientists also make a division depending on the level. A legitimate interest can be general (a participant in the process in making an informed decision) and private (a citizen in determining specific facts confirming his innocence). Depending on the nature, property and non-property permissions are distinguished. The former include a legitimate interest in high-quality and full satisfaction of needs in the field of consumer services, the latter - the desire of the accused to meet with his loved ones.

Specificity

Considering the legitimate interest, concept, signs of existing permissions, it is necessary to note a number of distinctive features... Institute in question:

The essence

If legal permissibility does not need the necessary legal behavior of other persons as an instrument of security, then it is raised to the category of legitimate interest. It can be considered a certain possibility, which is predominantly factual, social, but not normative. It expresses the permissibility of specific actions. The essence of a legitimate interest lies in the simple permissibility of a certain pattern of behavior. Therefore, it can be presented as a kind of "truncated legal possibility".

Relationship with duty

A legitimate interest allows a subject to enjoy a certain benefit, but without specific boundaries of permitted behavior and the ability to demand certain actions from others. There is no such specification due to the fact that it does not correspond to a clear obligation. In subjective law, on the contrary, it is rigidly fixed. The obligation in this case allows you to eliminate obstacles that arise in the way of realizing the legal opportunity. When exercising a legitimate interest, it does not participate in neutralizing the arising interference. As Korkunov wrote, permission for one is not an obligation for another. A permitted action may become a right in the event that prohibitions on the commission of all interfering behavioral acts are formulated. Accordingly, under such conditions, an obligation will also be established.

Researchers identify economic, quantitative and qualitative reasons for the existence of a legitimate interest. Accordingly, experts also name criteria of the same name for delimiting the institution under consideration from such a category as legal possibility. In a legitimate interest, only those aspirations are mediated that cannot be provided financially, materially. This is the economic criterion. A quantitative sign is that a legitimate interest mediates aspirations that are not translated into legal possibilities by norms due to rapid development public relations... They cannot be typified due to their randomness, individuality, rarity. The qualitative feature indicates that the legitimate interest reflects less significant and significant aspirations and needs. All this suggests that the reasons for the existence of the institution under consideration are rather complex. Often they cannot be established immediately, the connection between them cannot be determined, and the key one cannot be identified. At one time or another, any of the above can be the main criterion. In this regard, it is necessary to identify them in each specific case.

Certainty and specificity

In addition to the above criteria, there are other signs that characterize a legitimate interest. So, for example, legal possibilities are formally fixed in the norms. Accordingly, they have a clear legal system. Legitimate interests are generally not reflected in legal acts, are not ensured by specific regulatory requirements. The limits of the capabilities of a particular person, therefore, are not clearly regulated - they proceed from the complex legal provisions, principles, definitions.

The degree of assurance and mediation of aspirations

The legitimate interest has, in comparison with the subjective right, a lower level of security. These categories are distinct ways of meeting needs and demands. A legitimate interest is not considered to be the main one, but often in an equally important way. In comparison with a legal opportunity, it is at the bottom of the realization of aspirations. This is due to the richer normative content of subjective law. It has more stimulating power. Subjective law reflects the most significant legitimate interests that are vital for citizens. For their implementation, a regulatory opportunity is provided. For the exercise of legitimate interests, the legal position does not establish it.

Sphere of distribution

In a number of cases, truly legitimate interests can penetrate into such areas, into which subjective law cannot deepen. This is due to the presence of certain boundaries for the distribution of the latter. For example, it is impossible to mediate into subjective law once and for all the interest of a spouse in acquiring most of the property when dividing joint property or a worker in providing him with vacation days only in the summer, and so on. Only legal permissions can penetrate such areas. A legitimate interest regulates a particular area through its own mechanisms, taking into account the peculiarities of relationships and situations.

Additionally

In legal publications, a point of view is expressed according to which a legitimate interest and a legally protected interest are differentiated. This opinion, in particular, is shared by the Shaikenov. He points out that every interest that is expressed in law is under legislative protection, in this regard, it would be correct to consider them as protected. There are aspirations and permissions that are within the realm of regulation, but are not provided with legal possibilities. They, in the opinion of the author, should be referred to as legitimate interests. However, this point of view is not shared by many experts. Based on the meaning of many normative articles, it can be concluded that the concepts of legitimate interest and interest protected by law are not separated, but are used as synonyms.

/ "Labor Law", 2007, N 2 /
B.I. SHALYGIN, A. L. CITIES

B.I. Shalygin, senior researcher at the Research Institute for the Problems of Strengthening Law and Order under the General Prosecutor's Office of the Russian Federation, Senior Counselor of Justice, Honorary Worker of the Prosecutor's Office of the Russian Federation.

A.L. Gorodov, Research Fellow at the Institute, Junior Counselor of Justice.

The increased attention of society to improving the efficiency of protection of the labor rights of citizens was reflected in the Federal Law of June 30, 2006 N 90-FZ "On Amendments to the Labor Code of the Russian Federation, the recognition of some normative legal acts of the USSR as invalid on the territory of the Russian Federation and invalidation of some legislative acts. acts (provisions of legislative acts) of the Russian Federation ". In accordance with this Law, in the norms of the Labor Code of the Russian Federation, the goals and objectives of labor legislation are more specifically formulated, especially on the legal regulation of labor relations, including wages, and other relations directly related to them.

At the same time, the most vulnerable area remains constitutional rights citizens in the field of labor relations. According to statistics, violations of labor legislation annually account for 60 - 70% of the total number of violations of the social block revealed by prosecutors. From year to year, the trend of their growth continues. At the same time, the main share is associated with non-compliance with the rules of remuneration, which reached 80% in the first half of 2006 from all violations of the labor rights of citizens. Supervisory authorities in the regions do not always and not in full fulfill the functions assigned to them by legislation to protect the labor rights of citizens, including in the field of wages.

To a certain extent, this is due to the annually increasing flow of complaints to the prosecutor's office. In 2005, the number of citizens' complaints about violations of labor legislation, permitted by prosecutors, increased by one third (from 111.0 thousand in 2004 to 147.8 thousand). Of these, 37.1% more satisfied substantiated complaints (up to 78.6 thousand). In the first half of 2006, 73.4 thousand of such complaints have already been resolved, of which 39.0 thousand were recognized as justified and violated. labor rights citizens restored.

The prosecution authorities pay special attention to the elimination of wage arrears. Along with other measures of response, prosecutors in defense of the violated rights of citizens to receive remuneration for work in 2005 sent 336.5 thousand claims (applications) to the courts, which is 116.6% more than in 2004, and for the first in the first half of 2006 there were 235.8 thousand (+ 26%). Although the wage arrears decreased by 59%, it still remains at a high level and as of July 1, 2006 amounted to 5.4 billion rubles.

Despite the important role of the judicial system in protecting the rights and legitimate interests of citizens, in a number of places there is still public dissatisfaction with the work of the courts. There remains the problem of accessibility of justice, legality judgments, the effectiveness of the human rights function, ensuring real equality of parties, citizens and organizations before the court.

We believe that this publication will provide some assistance to citizens and law enforcement officers not only in protecting labor rights, but also in upholding decent wages and timely payment to employees.

Legal regulation, qualification of labor relations related to remuneration and subject to protection in civil proceedings

Based on the topic of the article, it should, first of all, be noted that the Civil Procedure Code of the Russian Federation (hereinafter - the Code of Civil Procedure of the Russian Federation) is codified and, of course, the most important legislative act determining the procedure for the proceedings on labor cases in the courts general jurisdiction Russian Federation, but it is not the only and not the primary source of civil procedural law that regulates the protection of labor rights and the legitimate interests of citizens. On the contrary, from the point of view of the rule of law in the protection of labor rights in federal courts of general jurisdiction by justices of the peace, the following procedure for the application of legislation is more correct: the Constitution of the Russian Federation (Articles 19, 37, parts 1, 2 of Art. 46, Part 1 of Art. 47, Part 2 of Art. 50, Part 1 of Art. 51, Articles 118, 120, 123), the Labor Code of the Russian Federation (Articles 381 - 383, 390 - 397), the Civil Procedure Code of the Russian Federation and other federal laws adopted in accordance with them.

The dominant source of law in this list is, of course, the Constitution of the Russian Federation (part 1 of article 15). It has supreme legal force, direct effect and applies throughout the territory of the Russian Federation. It contains provisions that determine the subject of the prosecutor's defense, the content, nature of the activities of the court and their tasks in general. These are the provisions that the Russian Federation is a legal (Article 1), a social state, the policy of which is aimed at creating conditions that ensure a decent life and free development of a person, at labor protection, at guaranteeing a minimum wage (Part 1 of Article 7 ).

In this state, human rights and freedoms are ensured, provided not only dispositive norms about freedom of labor, about free disposal of one's abilities to work, about choosing a type of activity and profession (part 1 of article 37), about the right to rest (part 5 of article 37), which are the highest value (article 2), but and peremptory norms prohibiting forced labor (part 2 of article 37), allowing work in conditions that meet safety and hygiene requirements, remuneration for work without any discrimination and not lower than the minimum wage established by federal law (part 2 of Art. 3 article 37 of the Constitution of the Russian Federation), guaranteeing the duration of working hours, days off and holidays paid annual leave, further developed in labor legislation.

The above is all the more important in the current conditions in order to respect the rights of citizens in social area, and primarily to support the implementation of priority national projects, especially on labor relations, decent, guaranteed and timely remuneration in the field of health care, education, in the agro-industrial complex and housing construction.

Recognition, observance and protection of the specified labor rights of a citizen is the duty of the social state (Articles 2, 7 of the Constitution of the Russian Federation), since they are directly acting, determine the meaning, content and application of laws, legislative and executive power, local self-government and are provided with justice (Article 18 of the Constitution of the Russian Federation).

According to Art. 2 of the Code of Civil Procedure of the Russian Federation, the tasks of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect the violated or disputed rights, freedoms and legitimate interests of citizens. The interested person has the right, in the manner prescribed by the legislation on civil proceedings, to apply to the court for the protection of his rights and legitimate interests (part 1 of article 3 of the Code of Civil Procedure of the Russian Federation). The persons participating in the case are the parties, third parties, the prosecutor, persons applying to the court for the protection of the rights, freedoms and legitimate interests of other persons (Article 34 of the Code of Civil Procedure of the Russian Federation).

In order to effectively protect the labor rights and legitimate interests of citizens for wages, the prosecutor, as well as the citizen, independently, before applying to the court with a statement (claim), is recommended to determine whether the violated rights are regulated by the norms of labor legislation or other branches of substantive law. Controversial labor relations subject to protection should, first of all, be distinguished from civil and other legal relations.

The qualification of the controversial employment relationship subject to protection must be carried out on the basis of the definition provided for by the provisions of Art. 11 of the Labor Code of the Russian Federation "Effect of labor legislation and other acts containing labor law" (as amended by Federal Law of 30.06.2006 N 90-FZ), which will correctly establish the rules of law governing disputed legal relations.

From the above, it can be concluded that the legislator has identified the following groups of labor relations.

The first group of labor relations, including those related to remuneration, are those provided for by the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), laws and other regulatory legal acts containing labor law norms, and apply to all employees who have entered into an employment contract with the employer, regardless of the organizational and legal forms and forms of ownership of the employer, unless otherwise provided by federal law or an international treaty of the Russian Federation.

The second group of labor relations consists of those that regulate the characteristics of labor relations for selected categories employees (heads of organizations, persons working part-time, women, persons with family responsibilities, youth, civil servants, etc.) established by the norms of chapters 40 - 55 of the Labor Code of the Russian Federation, as well as the norms of labor law contained in other federal laws.

The third group of labor relations is made up of those that are not regulated by the norms of labor law, but are subject to the norms of other branches of law, the legislation of which has its own norms governing labor relations, and which apply, for example, to members of the boards of directors (supervisory boards) of organizations (for with the exception of persons who have entered into an employment contract with this organization), employees under civil law contracts (under a work contract, under an agreement on the performance of research and development work), other persons, if it is established by federal laws.

The correct definition of the branch of law, the law, with the help of the norms of which the settlement and resolution of disputed labor relations is subject, allows you to choose the right method or method of protecting the violated rights and legitimate interests of citizens, provided for by procedural legislation.

Choosing a way to protect violated labor rights of citizens to wages

The correct choice of the method and method of protecting violated labor rights and legal interests of citizens, including wages, contributes to their unconditional restoration. In this regard, the effectiveness of the method of protecting the labor rights of citizens should be assessed by comparing the procedure and terms for considering labor disputes in civil proceedings with the consideration of administrative and criminal cases initiated on the basis of offenses or crimes committed against the labor rights of citizens in courts of general jurisdiction. This is due to the fact that labor law is a complex complex legal institution, which is regulated by a number of branches of substantive law, including the norms of administrative, criminal and civil procedural law.

From the complex substantive and civil procedural nature of protection, the regulation of labor relations, it follows that the choice of an effective way to protect labor rights and legitimate interests must be done in comparison of civil court with administrative and criminal procedural methods of protecting labor rights and legitimate interests of citizens.

So, in Art. 5.27 "Violation of labor legislation and labor protection" of the Code of Administrative Offenses of the Russian Federation does not provide for a special (independent) corpus delicti for non-payment of wages, but general provisions for violation of labor legislation and labor protection, a penalty is provided in the form of fines, administrative suspension of activities, as well as disqualification, if an official was previously subjected to administrative punishment for a similar administrative offense... The Code of Administrative Offenses of the Russian Federation does not provide for such an institution as the appeal of a prosecutor within the framework of administrative proceedings with a statement (claim) in defense of the rights of citizens to collect wages.

In accordance with Part 1 of Art. 23.1 of the Administrative Code of the Russian Federation of cases of administrative offenses, provided for in Part 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, are considered only by judges (justices of the peace), and the cases provided for in Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, are considered by judges in cases where the body or official to whom the case of such an administrative offense has been received transfers it to a judge for consideration (part 2 of article 23.1 of the Code of Administrative Offenses of the Russian Federation).

The process of initiating proceedings in a case of an administrative offense, its consideration is quite complex and lengthy. According to the requirements of Part 1 of Art. 25.11, part 1 of Art. 28.1, art. 28.3, 28.4, 28.5, parts 2, 5, 6 of Art. 28.7, part 1 of Art. 28.8, art. 29.6 of the Code of Administrative Offenses of the Russian Federation, the period from initiation to consideration of a case is often more than 3 months, this is without taking into account the fact that a decision in a case of an administrative offense can be appealed within the time frame and in accordance with the norms of Art. 25.1 - 25.5, Art. 30.1, 30.2 - 30.8, Art. 30.9 and 30.11 of the Administrative Code of the Russian Federation.

In case of non-payment by the employer of wages to the employee for more than two months in the presence of a mercenary or other personal interest, a criminal case is initiated on the grounds of a crime provided for by the requirements of Art. 145.1 "Failure to pay wages, pensions, scholarships, allowances and other payments" of the Criminal Code of the Russian Federation, which provides for the following sanctions as a punishment: a fine of up to 300 thousand rubles, deprivation of the right to hold certain positions or engage in certain activities for up to five years, imprisonment for up to seven years (as amended by the Federal Law of 08.12.2003 N 162-FZ).

The process of initiating, investigating and considering such criminal cases in court is also rather complicated and lengthy in comparison with the civil method of protecting the labor rights of citizens. So, in accordance with sub. "a" clause 1 of part 2 of Art. 151 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Criminal Procedure Code of the Russian Federation), the above criminal cases are under investigation by the investigators of the prosecutor's office. The term of the preliminary investigation is 2 months (part 1 of article 162 of the Code of Criminal Procedure of the Russian Federation) and can be extended by the prosecutor of a district or city up to 6 months (part 4 of article 162 of the Code of Criminal Procedure of the Russian Federation), and in the investigation of particularly complex cases - by the prosecutor of a subject of the Russian Federation or its deputy up to 12 months (part 5 of article 162 of the Criminal Procedure Code of the Russian Federation).

The judge may assign the received criminal case to preliminary hearing or appoint court hearing no later than 30 days from the date of the receipt of the criminal case by the court (Article 227 of the Code of Criminal Procedure of the Russian Federation).

A statement in defense of labor rights arising from a criminal case cannot be submitted to a court, since this is not provided for by the Criminal Procedure Code of the Russian Federation. As can be seen from the requirements of Part 10 of Art. 31, part 3 of Art. 44, art. Art. 45, 54 of the Code of Criminal Procedure of the Russian Federation, civil action arising from a criminal case can only be brought by a civil plaintiff, his representatives in accordance with the provisions Civil Code RF (an individual or legal entity) and only to a civil defendant with requirements under the Civil Code of the Russian Federation for compensation for property damage if the harm is caused by a crime.

However, one should not underestimate the possibilities of criminal justice, which have a wider spectrum of evidence collection, a significant part of them, as a rule, is with the employer, and they can be used to protect the labor rights and legitimate interests of citizens.

At the same time, it should be borne in mind that the suppression of a crime or an administrative offense is one of the ways to protect labor rights through the application of measures of influence (punishment), which, however, does not solve the problem of restoring violated labor rights and legitimate interests of citizens, as provided for by labor legislation. law and civil proceedings.

Based on the requirements of Part 4 of Art. 1, art. 61 of the Code of Civil Procedure of the Russian Federation, a decision of a court of general jurisdiction on administrative cases, as well as a court verdict in a criminal case that has entered into legal force are binding on the court considering the case on the protection of labor rights and legitimate interests of citizens, in part legal implications actions of the person in respect of whom the decision or verdict of the court has been made, on the issues of whether these actions took place and whether they were committed by this person. One should take into account the possibility of competition between these types of legal proceedings, on which the sequence of their application will depend.

If the norms of criminal, criminal procedural, administrative law allow performing the task of suppressing crimes and offenses, then labor and civil procedural law - to restore them, including by filing a complaint with the prosecutor in court in accordance with the requirements of the Labor Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation. Timely appeal (meeting deadlines limitation period) the prosecutor to the court with a statement complements the criminal and administrative methods of protecting violated rights. In our opinion, the civil-judicial method of protection for the restoration of labor rights and the legitimate interests of citizens for wages compared to the administrative and criminal one is more effective.

for example, according to Art. 381 - 383, 390 - 397 of the Labor Code of the Russian Federation, Part 1 of Art. 3, part 2 of Art. 4, art. 45 Code of Civil Procedure of the Russian Federation, as well as the provisions of paragraph 4 of Art. 27 of the Federal Law of 17.01.1992 N 2202-1 "On the Prosecutor's Office of the Russian Federation" (as amended on 04.11.2005 N 138-FZ), the prosecutor has the right to apply to the court with an application (including the issuance of a court order) on his own behalf to protection of labor rights, legal interests of the employee immediately upon detection of violations of the procedure for payment of wages. A court order on the merits of the stated claim for the recovery of the accrued but unpaid wages to the employee shall be issued within five days from the date of receipt of the prosecutor's application to the court.

It should be noted that a citizen also has the right to apply to the court with an application for the issuance of a court order with a demand to recover the wages accrued but not paid to the employee. Skillful and active use of this right by citizens will undoubtedly save them from the need to hold strikes, hunger strikes and other actions, and force employers to pay workers wages in a timely manner. This will be discussed in more detail below.

Consideration of labor disputes in civil proceedings also compares favorably with administrative and criminal proceedings, not only in terms of tasks aimed at restoring labor rights and legitimate interests, but also in terms of the implementation of this protection measure.

The judge, within five days from the date of receipt of the application (claim) in the court, is obliged to consider the issue of accepting it for proceedings, initiating a case arising from labor relations in the court of first instance (Article 133 of the Code of Civil Procedure of the Russian Federation). Cases arising from labor relations are considered and resolved by justices of the peace before the expiration of a month from the date of acceptance of the application for proceedings (clause 6 of part 1 of article 23, part 1 of article 154 of the Code of Civil Procedure of the Russian Federation), and about reinstatement at work - are considered and resolved by the courts of general jurisdiction in the same period (Article 22, Clause 6, Part 1, Article 23, Part 2, Article 154 of the Code of Civil Procedure of the Russian Federation).

The decisions of the court come into legal force upon the expiration of the period for appeal or cassation appeal, if they have not been appealed (part 1 of article 209 of the Code of Civil Procedure of the Russian Federation). The decision of the court on labor disputes is enforced after its entry into force, except for cases of immediate execution of a court order to pay the employee wage arrears within three months or a court decision on reinstatement at work (Articles 210, 211 of the Code of Civil Procedure of the Russian Federation).

The plaintiff may apply to the court with a request for immediate execution of the decision, which the court may make if, due to special circumstances, the delay in the execution of the decision may lead to significant damage to the claimant or the execution may be impossible (part 1 of article 212 of the Code of Civil Procedure of the Russian Federation). In accordance with the rule of Art. 213 of the Code of Civil Procedure of the Russian Federation, the court can ensure the execution of a court decision that is not subject to immediate execution, according to the rules established by Ch. 13 of the Code.

In case of filing an appeal or submission, consideration of the labor case by the court appellate instance is carried out according to the rules of production in the court of first instance (part 2 of article 327 of the Code of Civil Procedure of the Russian Federation). Courts should consider the cassation complaints, submissions of the case no later than within a month from the date of their receipt (part 1 of article 348 of the Code of Civil Procedure of the Russian Federation), Supreme Court RF - no later than within two months from the date of their receipt (part 2 of article 348 of the Code of Civil Procedure of the Russian Federation).

On the other hand, when comparing the powers and functions of the prosecutor, provided for by the legislation on administrative and criminal proceedings, with his functions and powers in civil proceedings in labor cases, the inconsistency, lack of coordination of these methods of protecting the rights of citizens and even the weakness of the latter are revealed. So, the prosecutor, having identified criminal offense or an administrative offense, has the right to initiate any criminal case or administrative proceedings for violations of the labor rights of citizens, which is not the case in civil proceedings, since by virtue of the requirements of Art. 45 of the Code of Civil Procedure of the Russian Federation, he can apply to the court in defense of the labor rights of other persons, if for some reason they themselves are not able to do this.

In this regard, it seems that the restriction of the rights of prosecutors to appeal to civil courts in defense of the rights of citizens, including those provided for by labor legislation, does not meet public needs.

The lack of uniform judicial and prosecutorial practice in assessing the validity of the reasons why a citizen cannot independently apply to the court for the protection of his violated rights also complicates the work of prosecutors in filing applications in the interests of citizens. Provided by art. 45 of the Code of Civil Procedure of the Russian Federation, the norm limiting the powers of the prosecutor in civil proceedings requires an appropriate judicial interpretation or its amendment in legislation.

Nevertheless, at the next stage, the prosecutor is advised to choose the right way to restore violated labor rights, freedoms and legal interests, which corresponds to one of the following types (forms) of civil proceedings: clerical proceedings, action proceedings, proceedings in cases arising from public legal relations on invalidation regulatory legal acts in whole or in part.

Legal grounds for going to court in civil proceedings in defense of labor rights and legitimate interests of citizens for wages

According to the Constitution of the Russian Federation, the recognition, observance and protection of the labor rights of citizens is the duty of the social state, since they are directly acting, determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are provided with justice (Articles 2, 7, 18 ).

Constitutional principles legal proceedings (norms - principles), provided for by the requirements of Art. 19, 118, 120, 123, etc., constitutional norms of civil procedural law (parts 1 and 2 of article 46, part 1 of article 47, part 2 of article 50, part 1 of article 51 of the Constitution of the Russian Federation), norms on civil proceedings, provided for by Art. 5 - 7, 9, 10 of the Code of Civil Procedure of the Russian Federation, Federal Constitutional Law of December 31, 1996 N 1-FKZ (as amended on 05.04.2005 N 3-FKZ) "On judicial system Of the Russian Federation ", provide justice in labor disputes, are subordinate to substantive law. procedural law peremptory labor law provisions cannot be repealed or left unprotected.

Taking into account the requirements of the above legislation, prosecutors should correctly determine their own procedural legal capacity to protect labor rights and legitimate interests of citizens in civil proceedings.

The main codified source of civil procedural law is the Civil Procedure Code of the Russian Federation, the norms of which endow the prosecutor with the right to apply to a court of general jurisdiction with a statement in defense of labor rights, the legitimate interests of citizens, an indefinite circle of persons (part 1 of article 3, part 2 of art. 4, part 1 of article 45 of the Code). With such a statement, he has the right to go to court only if the citizen cannot go to court for health reasons, age, incapacity and other valid reasons.

The general provisions of Art. 45 of the Code of Civil Procedure of the Russian Federation provides for two main forms of implementation by prosecutors of powers in civil procedure in courts of general jurisdiction: a) going to court in defense of labor rights and legitimate interests of citizens, an indefinite circle of persons; b) entering into the process and giving an opinion on the case of reinstatement at work in order to exercise the powers assigned to him.

Some scholars, and even practitioners, also call the third form of the exercise of powers by prosecutors in civil proceedings in courts of general jurisdiction - by filing appeals against decisions of justices of the peace, cassation submissions against court decisions that have not entered into legal force and supervisory submissions against those that have entered into legal force. judicial decisions, with the exception of judicial decisions of the Presidium of the Supreme Court of the Russian Federation, if the prosecutor participated in the consideration of these cases.

For our part, we believe that the filing of appeals and cassation submissions by the prosecutor against court decisions are actions arising from the participation of the prosecutor in civil proceedings in the court of first instance, and are a continuation of the exercise by the prosecutor of the powers of the above two forms of his participation in civil proceedings in courts of general jurisdiction.

However, to determine the procedural legal capacity of the prosecutor to protect labor rights and legitimate interests of citizens in civil proceedings only from the requirements provided for in Part 1 of Art. 45 Code of Civil Procedure of the Russian Federation, will be incomplete.

By virtue of the norms of Part 1 of Art. 3, part 2 of Art. 4 of the Code of Civil Procedure of the Russian Federation, the prosecutor has the right to apply to the court with a statement on his own behalf in defense of the labor rights and legitimate interests of another person, an indefinite circle of persons in cases provided for not only by the Code of Civil Procedure of the Russian Federation, but also by other federal laws.

Many norms of procedural law are contained in the Labor Code of the Russian Federation (Articles 382, 383, 390 - 394, 397, etc.), as well as in other federal laws. According to Art. 382 of the Labor Code of the Russian Federation, the prosecutor can apply to the court in defense of the labor rights of citizens in individual disputes, as well as in defense of employees, challenging the decision of the labor dispute commission (Article 391 of the Labor Code of the Russian Federation).

The inclusion of the norms of civil procedural law in federal laws other than the Code of Civil Procedure of the Russian Federation is caused by objective reasons associated with the variety of cases considered in civil proceedings, and their peculiarities.

In accordance with paragraph 4 of Art. 27 of the Federal Law "On the Prosecutor's Office of the Russian Federation", the prosecutor has the right to apply to the court with a statement on his own behalf in defense of the rights and legitimate interests of other persons. In addition to the official duties assigned to the prosecutor by law, he should be guided by the information letter of the General Prosecutor's Office of the Russian Federation dated January 27, 2003 N 8-15-2003 "On some issues of the prosecutor's participation in civil proceedings related to the adoption and enforcement of the Civil Procedure Code of the Russian Federation", By order Attorney General RF of 02.12.2003 N 51 "On ensuring the participation of prosecutors in civil proceedings."

The right of the prosecutor to go to court to protect the labor rights and legitimate interests of others (Article 45 of the Code of Civil Procedure of the Russian Federation) is a measure, the ratio of possible and (or) proper behavior, the choice of which is determined based on the dispositiveness or imperativeness of the labor (material) law norm, subject to protection.

Consequently, the procedural legal capacity of the prosecutor, including the appeal to the court with an application in defense of labor rights and the legitimate interests of citizens for wages, depends on what norms regulate the disputed relations, and also (we repeat again) whether the claims of the citizen are subject to protection, regulated by dispositive norms on freedom of labor, on the right to freely dispose of one's abilities to work, to choose an occupation and profession (part 1 of article 37 of the Constitution of the Russian Federation), on the right to rest (part 5 of article 37) or peremptory norms prohibiting compulsory labor (part 2 of article 37), allowing work in conditions that meet the requirements of safety and hygiene, remuneration for work without any discrimination and not lower than the minimum wage established by federal law (part 3 of article 37), guaranteeing the duration of working hours, weekends and holidays established by federal law, paid annual leave, developed in labor legislation.

In the Russian Federation, labor rights of a person and a citizen are recognized and guaranteed in accordance with generally recognized principles and norms of international law and in accordance with the requirements of Part 1 of Art. 17 of the Constitution of the Russian Federation. The norms of international law are also peremptory.

Basic labor human rights are inalienable and belong to everyone from birth (part 2 of article 17 of the Constitution of the Russian Federation). They determine the meaning, content and application of labor legislation, the activities of the legislative and executive authorities, local self-government (Article 18 of the Constitution of the Russian Federation). Recognition, observance and protection of them is the duty of the welfare state, of which the prosecutor's office is a part.

The volume of human rights activities of the prosecutor's office in the area of untimely payment of wages to employees can be illustrated by the following figures. In 2005, prosecutors revealed over 542.2 thousand violations of legislation in the field of wages, which is 81.5% more than in 2004, including 15.6 thousand illegal legal acts (+ 30.6% ), of which 15.1 thousand were protested. Prosecutors effectively used the powers granted by the law. 38.4 thousand submissions were made to eliminate existing violations of the law. On their initiative, more than 9 thousand guilty persons were brought to disciplinary responsibility (+ 40.7%) and 25.3 thousand were administratively punished (+ 14%). 16.3 thousand officials were warned about the inadmissibility of violating the laws on wages, 1185 criminal cases were initiated. The tendency of growth of violations of the legislation on wages revealed by prosecutors and the measures of prosecutorial response taken in this regard is also noted in 2006.

Basic labor human rights, including those regulated by peremptory norms, cannot be abolished or diminished by other laws (part 1 of article 15, part 2, 3 of article 55, article 64 of the Constitution of the Russian Federation), on the contrary, they are ensured by justice ( Art. 18), their judicial protection is guaranteed to everyone (part 1 of Art. 46 of the Constitution of the Russian Federation).

For civil relations, the provisions of Art. 9 of the Civil Code of the Russian Federation, according to which citizens, at their discretion, exercise their rights due to the principle of dispositiveness, which has been developed in civil procedural law (to refuse a claim, recognize a claim, conclude an amicable agreement, etc.). Mandatory norms, for example, labor law, establish other rules that are important for civil proceedings (on the appeal of the prosecutor to protect the rights and legitimate interests of citizens without their application, on the admissibility of evidence, on the burden of proof, on the right of the court in the interests of legality to go beyond subject and basis of the claim, etc.).

So, in accordance with the requirements of Part 2 of Art. 39, art. 220 of the Code of Civil Procedure of the Russian Federation, the court does not accept the refusal of the plaintiff from the claim by the prosecutor to collect wages in favor of the employee and does not terminate the proceedings, since they contradict the norms of Part 2 of Art. 37 of the Constitution of the Russian Federation and Art. 2, 4 of the Labor Code of the Russian Federation on the prohibition of forced labor. In addition, from the norms of Art. 45, part 1 of Art. 46 of the Code of Civil Procedure of the Russian Federation, it is seen that the prosecutor has the right to apply to the court with a statement in defense of the rights and legitimate interests of other persons, regardless of the request of the interested person or his legal representative, and other state authorities have the right to apply to the court with a statement in defense of the rights and legitimate interests of others only at the request of the latter (with the exception of protecting the legitimate interests of an incapacitated or minor citizen).

As can be seen from the provisions of Part 1 of Art. 45 of the Code of Civil Procedure of the Russian Federation, the prosecutor has the right to file an application in defense of the labor rights and legitimate interests of a citizen, not only if the citizen cannot go to court for health reasons, age, incapacity, but also for other valid reasons. Thus, at the will of the legislator, the list good reason, by virtue of which a citizen is procedurally incapable of filing an application with a court in defense of labor rights and legal interests, is not exhaustive. The list of valid reasons cannot be established by the court, since its competence does not include the function of lawmaking, with the exception of The Constitutional Court RF (part 5 of article 125 of the Constitution of the Russian Federation).

Prosecutors face difficulties in proving the validity of the reasons why an employee cannot independently exercise his right to go to court with demands to recover accrued but unpaid wages. Not every reason generates a causal relationship with a consequence, as a result of which a citizen cannot go to court himself, but only a valid reason that is significant for the case can be taken into account. for example, prosecutors should submit to the court evidence confirming not only the remoteness of the citizen's place of residence from the location of the court, but the employee's inability to overcome it, including due to the inability to pay for travel.

If the prosecutor applies to protect the rights and legitimate interests of a citizen, the application must contain a justification for the impossibility of filing a claim by the citizen himself (part 3 of article 131 of the Code of Civil Procedure of the Russian Federation). If necessary, the application should be accompanied by the documents specified in Art. 132 Code of Civil Procedure of the Russian Federation. Thus, the prosecutor must only justify and prove that the right to go to court arose from a legal fact, from the fact that a citizen, for valid reasons, cannot go to court himself.

Such legal fact can be confirmed by the prosecutor by providing a judge's ruling to leave the statement of claim without motion, which is filed without observing the requirements established by Art. 131 and 132 of the Code of Civil Procedure of the Russian Federation, in this case, a good reason is the lack of a citizen's legal education.

Within the meaning of the requirements of Part 1 of Art. 37 of the Code of Civil Procedure of the Russian Federation, civil procedural incapacity is defined as the inability of a citizen by his actions to exercise procedural rights, perform procedural duties and entrust the conduct of the case in court to a representative.

The procedural legal capacity of a prosecutor to go to court with a statement in defense of labor rights and the legitimate interests of citizens depends on their position, equivalence, place and role in the system of human and civil rights and freedoms, as well as the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities.

By virtue of constitutional requirements in the Russian Federation, first of all, labor and health of people are protected, a guaranteed minimum wage is established (part 2 of article 7 of the Constitution of the Russian Federation). Taking this into account, in our opinion, the human rights activities of the prosecutor should also, first of all, be aimed at applying to the court with statements in defense of labor rights and the legitimate interests of citizens (collection of wages). In addition, the order of the application by the prosecutor of measures to protect the rights and legitimate interests of citizens is provided for by Order of the Prosecutor General of the Russian Federation of December 2, 2003 N 51 "On ensuring the participation of prosecutors in civil proceedings."

Before applying to the court with a statement in defense of labor rights, the legitimate interests of another person, the prosecutor should find out whether the employee has already applied to the labor dispute commission so as not to violate his right to choose the method of protecting labor rights and legitimate interests.

In accordance with Art. 382 of the Labor Code of the Russian Federation, individual labor disputes are considered by labor dispute commissions and courts. The Labor Code of the Russian Federation establishes the conditions and procedure for considering individual labor disputes with the delimitation of the competence of the court and the labor dispute commission.

The Labor Dispute Commission is not the primary body for resolving labor disputes, i.e. the legislation does not provide for a mandatory preliminary out-of-court procedure for resolving a labor dispute with the participation of a labor dispute commission. Each by virtue of Art. 46 of the Constitution of the Russian Federation has the right to judicial protection, chooses the method of resolving an individual labor dispute and has the right to either apply first to the labor dispute commission (except for cases that are considered directly by the court), and then to the court, or immediately go to court.

Clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 17.03.2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" explains that, within the meaning of the requirements of Art. 391 of the Labor Code of the Russian Federation, the former mandatory preliminary out-of-court procedure for resolving labor disputes by the labor dispute commission has not been preserved. Currently, the citizen himself chooses the method of resolving an individual labor dispute.

It should be borne in mind that an individual labor dispute can be referred from the labor dispute commission to the court, and certain categories of disputes are subject to consideration directly in the courts. for example, when the employer's commission has not been created or cannot be created, then in this case the employee and the prosecutor can apply for a resolution of the dispute directly to the court.

If the employee appealed to the labor dispute commission and the dispute was not considered within 10 days, then the employee himself and, therefore, the prosecutor, taking into account Part 1 of Art. 45 Code of Civil Procedure of the Russian Federation has the right to go to court with a statement. In accordance with Part 1 of Art. 391 of the Labor Code of the Russian Federation, individual labor disputes are considered in courts at the request of the prosecutor, if the decision of the labor dispute commission does not comply with laws or other regulatory legal acts.

The jurisdiction and jurisdiction of labor dispute cases is determined taking into account the requirements of Art. 382, 383 of the Labor Code of the Russian Federation, art. 2, 22 of the Code of Civil Procedure of the Russian Federation, the norms of which provide that cases in defense of violated or disputed labor rights and legitimate interests of citizens are subject to the jurisdiction of the courts of general jurisdiction.

A generalization of the information received from prosecutors shows that arbitrage practice when determining the jurisdiction of cases on the claims of citizens, prosecutors for the collection of wage arrears, for example, during the bankruptcy of enterprises, it is contradictory. Some courts of general jurisdiction refuse to accept such applications, explaining the procedure for their consideration in accordance with the requirements of Art. 57 "Grounds for Terminating Bankruptcy Proceedings" and Art. 63 "Consequences of the Arbitration Court's Ruling on the Introduction of Surveillance" of the Federal Law of October 26, 2002 N 127-FZ (as amended on July 18, 2006 N 116-FZ) "On Insolvency (Bankruptcy)" them without consideration, while others accept, consider and satisfy the stated requirements.

However, in the organization where the arbitration court introduced supervision, the obligations to pay persons working under an employment contract do not refer to debt obligations of a civil legal nature. They are governed by labor laws. Since the claims of the applicants arise from labor legal relations, relate to the protection of their labor rights, the consideration of such claims by virtue of paragraph 1 of Part 1 of Art. 22 of the Code of Civil Procedure of the Russian Federation is subordinate to the courts of general jurisdiction, which are considered according to the rules of civil procedure legislation (Bulletin of the Supreme Court of the Russian Federation, 2001, N 3, p. 12).

The Constitution of the Russian Federation guarantees everyone judicial protection of his rights and freedoms and establishes that no one can be deprived of the right to have his case examined in that court and by the judge to whose jurisdiction it is attributed by law (Resolution of the Constitutional Court of the Russian Federation of March 12, 2001 N 4 -P).

The refusal of the arbitration court to accept the application in connection with the non-jurisdiction of the case to the arbitration court on the grounds provided for by the legislation on insolvency (bankruptcy) and the Arbitration Procedure Code of the Russian Federation does not exclude the possibility of the interested person applying for the protection of his rights to the courts of general jurisdiction in accordance with the jurisdiction established by law.

The jurisdiction of cases in defense of violated or disputed labor rights and legitimate interests of citizens is carried out in the following order:

the magistrate has jurisdiction over labor cases considered by him at first instance on the issuance of a court order, as well as arising from labor relations, with the exception of cases on reinstatement at work and cases on resolving collective labor disputes (clauses 1, 6, part 1 of Art. 23 Code of Civil Procedure of the Russian Federation);
district courts as a court of first instance have jurisdiction over labor cases, with the exception of cases under Art. 23, 25, 26 and 27 of the Code of Civil Procedure of the Russian Federation (i.e., jurisdictional to the magistrate, military and other specialized courts, the supreme courts of the constituent entities of the Russian Federation and the Supreme Court of the Russian Federation);
the supreme court of the republic, regional, regional court, the court of the city of federal significance, the court of the autonomous region and the court autonomous region labor cases related to state secrets and on challenging regulatory legal acts of state authorities of the constituent entities of the Russian Federation affecting labor rights, freedoms and legal interests of citizens (clauses 1, 2, part 1 of article 26 of the Code of Civil Procedure RF);
The Supreme Court of the Russian Federation, as a court of first instance, has jurisdiction over labor cases on challenging regulatory legal acts of the President of the Russian Federation, regulatory legal acts of the Government of the Russian Federation and regulatory legal acts of other federal government bodies affecting labor rights and legitimate interests of citizens, on challenging decisions on suspension or the termination of the powers of judges or the termination of their resignation (clauses 2, 3, part 1 of article 27 of the Code of Civil Procedure of the Russian Federation).

The territorial jurisdiction of labor cases is determined by the location of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation).

Jurisdiction at the choice of the plaintiff provides that a claim against an organization arising from the activities of its branch or representative office may also be brought to a court at the location of its branch or representative office (part 2 of article 29 of the Code of Civil Procedure of the Russian Federation).

Claims for the restoration of labor rights related to unlawful conviction, unlawful prosecution, unlawful use of detention as a preventive measure, recognizance not to leave, or unlawful imposition of an administrative penalty in the form of arrest may also be brought to court at the place of residence of the plaintiff (part . 6 article 29 of the Code of Civil Procedure of the Russian Federation).

Limitation periods. An employee has the right to apply to the court for resolution of an individual labor dispute within three months from the day he learned or should have learned about the violation of his right, and in disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order to him or day of issue of the work book. If the deadlines are missed for valid reasons, they can be restored by the court (Article 392 of the Labor Code of the Russian Federation).

Unfortunately, the legislator in the Labor Code of the Russian Federation, as in the previous Labor Code of the Russian Federation, did not consider it necessary to determine legal nature of the specified periods (for example, in the Civil Code of the Russian Federation, the limitation period is defined as the period for protecting the right at the claim of a person whose right has been violated), which gives rise to the possibility of refusal to satisfy claims only in connection with missing the period. Based on the requirements of Art. 392 of the Labor Code of the Russian Federation and its literal interpretation, then we are talking specifically about the employee's right to go to court, i.e. on the right to bring a claim, and by their nature these periods are statutes of limitations. Consequently, the court, refusing to a citizen to restore the term for filing an application for the protection of violated labor rights and legitimate interests, must refuse the prosecutor to accept the statement of claim, but not to satisfy the employee's claims.

Duty and Legal Costs. According to Art. 89 Code of Civil Procedure of the Russian Federation (as amended by the Federal Law of 02.11.2004 N 127-FZ) benefits for payment state duty are provided in the cases and in the manner established by the legislation of the Russian Federation on taxes and fees. In paragraph 1 of Art. 333.36 of the Tax Code of the Russian Federation (part two) provides that the following are exempted from the payment of the state duty in cases considered in courts of general jurisdiction, as well as by justices of the peace: plaintiffs - in claims for the recovery of wages (pay) and other claims arising from labor legal relations, as well as claims for the recovery of benefits (sub. 1); prosecutors - on applications in defense of the rights, freedoms and legitimate interests of citizens, an indefinite circle of persons or interests of the Russian Federation, constituent entities of the Russian Federation and municipalities (sub. 9).

Protection of the Labor Rights of Citizens in Court by Order of the Order

The main or, more often, the only source of an employee's income is his wages. Late payment of the amounts due puts the employee in a difficult financial situation. As noted earlier, a citizen himself has the right to apply to the court with an application for the issuance of a court order with a demand to recover the wages accrued but not paid to the employee. Skillful and active use of this right by citizens will undoubtedly save them from the need to hold strikes, hunger strikes and other actions, and force employers to pay workers wages in a timely manner.

However, due to dependence on the employer, the majority of employees do not want to submit written statements about violation of labor rights in the field of wages to the prosecutor's office or to the court, in connection with which statements in defense of the rights of workers are sent by prosecutors to the court with the attachment of appropriate explanations from citizens and without their request.

The procedural legal capacity of the prosecutor to apply to the court with an application in defense of labor rights depends on the civil procedural ability of the citizen to apply to the court, which is related to labor law, legal capacity, and part of the latter is that forced labor is prohibited (part 2 of article 37 of the Constitution RF, Articles 2, 4 of the Labor Code of the Russian Federation). An employee who is under the threat of punishment by the employer, to whom wages are paid in violation of the established deadlines or not in full, cannot refuse to pay it by virtue of a peremptory constitutional norm and cannot refuse to protect his own right to wages. The principle of dispositiveness does not apply to a labor dispute on the collection of wages, as is the case in civil relations.

In accordance with the requirements of Art. 4 of the Labor Code of the Russian Federation, art. 27 and 35 of the Federal Law "On the Prosecutor's Office of the Russian Federation", guided by Art. 45, 122 - 124 of the Code of Civil Procedure of the Russian Federation, the prosecutor has the right to independently, without the employee's request, apply to the court with an application for the sole judge to issue a court ruling - a court order (Article 121 of the Code of Civil Procedure of the Russian Federation) demanding the recovery of wages accrued but not paid to the employee (Art. 122 Code of Civil Procedure of the Russian Federation), when there is no dispute about the ownership of the rights to wages.

The prosecutor or the plaintiff shall submit an application for the issuance of a court order to the court on general rules jurisdiction established by Part 1 of Art. 123 of the Code of Civil Procedure of the Russian Federation, with a certain content and in writing (Art. 124 of the Code of Civil Procedure of the Russian Federation), in which the following should be indicated.

The name of the court to which the application is submitted (magistrate).
The position of the prosecutor appealing in defense of labor rights, as well as the surname, name, patronymic of the claimant, his place of residence, which is the place where he permanently or predominantly resides (Articles 19, 20 of the Civil Code of the Russian Federation).
The name of the debtor (legal entity), its location, determined by its constituent documents (clause 2 of article 52, clause 3 of article 54 of the Civil Code of the Russian Federation). The name of a legal entity must contain an indication of its organizational and legal form, and in cases stipulated by law - on the nature of the activity of a legal entity, for a commercial organization - an indication of its corporate name (clauses 1, 4 of article 54, clause 2 of article 55 Civil Code of the Russian Federation).

The location of a legal entity is determined by the place of its state registration, which is carried out at the location of its permanent executive body or other body (branch) or a person entitled to act on behalf of a legal entity without a power of attorney (clauses 1, 2, article 54 of the Civil Code of the Russian Federation). The registration procedure is determined by the Federal Law of 08.08.2001 N 129-FZ (as amended on 02.07.2005 N 83-FZ) "On state registration of legal entities and individual entrepreneurs", as well as the Regulations on the Federal Tax Service, approved by Decree of the Government of the Russian Federation of September 30, 2004 N 506 (as amended on 03.06.2006 N 349). The Federal Tax Service of Russia (and its branches) is the federal executive body that carries out state registration legal entities, individuals as individual entrepreneurs and peasant (farmer) households, which is under the jurisdiction of the Ministry of Finance (clauses 1, 2 of the Regulation).

The statement also indicates the claim of the claimant and the circumstances on which they are based. It seems that the prosecutor should reflect the subject of protection, the legal requirement for the issuance of a court order to recover wage arrears from the employer in favor of the employee.

Article 136 of the Labor Code of the Russian Federation establishes the terms for the payment of wages by the employer to the employee - at least every half a month on the day established by the internal labor regulations, the collective agreement, the employment contract. It is paid directly to the employee, as a rule, at the place of work, or transferred to the bank account specified by the employee. In addition, a federal law or an employment contract may provide for another method of paying wages. for example, the place and terms of payment of wages in non-monetary form are determined by the collective agreement or employment contract.

Violation of the terms of payment of wages or payment of it not in full are not only violations of labor rights provided for in Part 3 of Art. 37 of the Constitution of the Russian Federation, but also the conditions for recognizing the work performed as forced labor (part 2 of article 37 of the Constitution of the Russian Federation), which the employee is forced to perform under the threat of applying any punishment (violent influence), including in order to maintain labor discipline, even if in accordance with labor legislation, he has the right to refuse its implementation (Articles 2, 4 of the Labor Code of the Russian Federation). The above violations give rise to the employer liability under Art. 142, 236 of the Labor Code of the Russian Federation.

If the deadline for the payment of wages, vacation pay, dismissal payments and other payments due to the employee is violated, the employer is obliged to pay them with interest ( monetary compensation) in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at this time from the amounts not paid on time for each day of delay starting from the next day after the due date of payment until the day of actual settlement inclusive. The amount of monetary compensation paid to an employee can be increased by a collective agreement or an employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer's fault (Article 236 of the Labor Code of the Russian Federation).

In the event of a dispute between the parties over the timing and amount of unpaid wages, the case is subject to consideration in accordance with the procedure action proceedings. for example, according to the requirements of Art. 21, 129, 132 of the Labor Code of the Russian Federation, a party may dispute the amount of wages depending on the qualifications, complexity of work, the quantity, quality and conditions of the work performed, as well as compensation payments included in it (additional payments and allowances compensatory nature, including for work in conditions deviating from normal, in special climatic conditions and in territories exposed to radioactive contamination, and other compensatory payments), incentive payments (additional payments and incentive payments, bonuses and other incentive payments), as well as equality of payment for work of equal value (Article 22 of the Labor Code of the Russian Federation).

In the application for the issuance of a court order, the prosecutor should also indicate not only the period and the amount of arrears in wages, but also the legally significant circumstances of the employer's delay in paying the employee the accrued wages. These include:

the existence of an employment relationship between the applicant and the employer;
non-payment of accrued wages;
the form of labor remuneration (according to Article 131 of the Labor Code of the Russian Federation, labor remuneration is carried out in cash in the currency of the Russian Federation (in rubles), in accordance with the collective agreement or labor agreement. But upon a written application of the employee, labor remuneration can be made in other forms that do not contradict legislation of the Russian Federation and international treaties Russian Federation. The share of wages paid in non-cash form cannot exceed 20% of the accrued monthly wages);
the procedure for paying wages (Article 136 of the Labor Code of the Russian Federation);
the place of its payment (within the meaning of article 136 of the Labor Code of the Russian Federation, wages are paid to the employee, as a rule, at the place of work, or transferred to the bank account specified by the employee. The place of payment of wages in non-cash form is determined by the collective agreement or employment contract);
method of payment of wages (in accordance with article 136 of the Labor Code of the Russian Federation, wages are paid directly to the employee, except for cases when another method of payment is provided for by federal law or an employment contract).

In the application of the prosecutor for the issuance of a court order, it is necessary to set out evidence confirming the circumstances of non-payment of the accrued wages to the employee.

In conditions judicial trial on documents, prosecutors must take into account the legal requirements for written evidence, and above all for documents. The evidence in the case is obtained in prescribed by law order (Articles 62, 86, 88, 89 of the Labor Code of the Russian Federation) information about the facts of non-payment of accrued wages, on the basis of which the court establishes the presence or absence of circumstances justifying the claims and objections of the parties, as well as other circumstances that are important for correct consideration and resolution cases (part 1 of article 55 of the Code of Civil Procedure of the Russian Federation).

This information may be contained in written, as well as material evidence, in the case of the use of payment in kind. The Code does not prohibit use as evidence electronic documents when calculating wages using an electronic program. Evidence (documents) obtained in violation of the law does not have legal force and cannot be used as the basis for a court decision (part 2 of article 55 of the Code of Civil Procedure of the Russian Federation).

Evidence is presented by the parties and the prosecutor involved in the case. The court has the right to invite them to submit additional evidence. If it is difficult for these persons or the prosecutor to present the necessary evidence, the court, at their request, assists in collecting and requesting evidence of the transfer of money from wages to the employee's bank account (part 1 of article 57 of the Code of Civil Procedure of the Russian Federation).

Prosecutors should provide the court with evidence relevant to the case (Article 59 of the Code of Civil Procedure of the Russian Federation) and which must confirm the circumstances of non-payment of accrued wages, and no other evidence (Article 60 of the Code of Civil Procedure of the Russian Federation). The evidence is presented as reliable, sufficient, interconnected in their totality and contains all other inalienable details of this type of evidence, and copies of documents are duly verified with the original and certified (part 2 - 7, article 67 of the Code of Civil Procedure of the Russian Federation).

Written evidence is acts, contracts, certificates, business correspondence, other documents and materials made in the form of digital, graphic records, including those received by facsimile, electronic or other communication or in another way that allows to establish the authenticity of the document. Written evidence includes court verdicts and decisions, other court orders, protocols of procedural actions, court records, annexes to the protocols of procedural actions (diagrams, maps, plans, drawings). Written evidence is presented in the original or in the form of a duly certified copy.

Authentic documents are submitted when the circumstances of the case, in accordance with laws or other regulatory legal acts, are subject to confirmation only by such documents, when the case cannot be resolved without original documents or when copies of a document are presented that are different in content (parts 1, 2, article 71 of the Code of Civil Procedure of the Russian Federation) ...

From the civil procedural, labor and other branches of law, it is seen that there is no single definition of the concept of a document.

By virtue of the adopted GOST R 6.30-2003 "Unified documentation systems. Unified system of organizational and administrative documentation. Requirements for paperwork", approved by the Resolution of the State Committee of the Russian Federation for Standardization and Metrology of March 3, 2003 N 65-st "On the adoption and the introduction of the state standard of the Russian Federation ", the criteria defining the concept of an organizational and administrative document related to the Unified System of Organizational and Administrative Documentation (USORD), - decrees, orders, orders, decisions, protocols, acts, letters and other documents included in OK 011-93 " All-Russian classifier management documentation "(OKUD) (class 0200000), are advisory in nature. Thus, labor, accounting, tax, pension and other legislation have their own definitions of the document. Let's consider some of them.

The evidence from the number of documents based on labor law includes the following:

copies of documents provided for by law related to the work performed (copies of orders for employment, transfers, dismissals from work, extracts from the work book, salary certificates, on the calculated and actually paid insurance contributions for compulsory pension insurance, on the period work for this employer, etc.). The employee can receive them from the employer no later than three working days from the date of submission of the application (Article 62 of the Labor Code of the Russian Federation). They must be duly certified and provided to the employee free of charge;
copy employment contract, concluded in writing and signed by the parties (Article 67 of the Labor Code of the Russian Federation);
a payroll, which indicates the components of the wages due to the employee for the relevant period, the amount and grounds for the deductions made, as well as the total amount of money to be paid (Article 136 of the Labor Code of the Russian Federation);
bank statement from a bank account to which the employee's salary is transferred on the terms determined by the collective or labor agreement (Article 136 of the Labor Code of the Russian Federation), etc.

Evidence from the number of documents based on the rules of law on accounting and financial reporting includes the following:

payroll (form N T-49), payroll (form N T-51), payroll (form N T-53), used to calculate and pay wages to employees of the organization, which are drawn up in one copy;
personal account (form N T-54), personal account (svt) (form N T-54a), reflecting information about the wages paid to the employee, which are filled in by the accounting employee. (Album unified forms primary accounting documentation was developed by NIPIstatinform of the Goskomstat of Russia on the basis of the Decree of the Government of the Russian Federation of 08.07.1997 N 835 "On primary accounting documents". The forms of primary accounting documentation for this album were approved by the Decree of the State Statistics Committee of Russia dated 06.04.2001 N 26.)

The requirements for monetary and settlement documents, primary and consolidated accounting documents are provided for by the provisions of Art. 7, 9 of the Federal Law of 21.11.1996 N 129-FZ "On Accounting" (as amended by the Federal Law of 30.06.2003 N 86-FZ). Primary and consolidated accounting documents can be compiled on paper and computer media. In the latter case, the organization is obliged to make copies of such documents on paper at its own expense at the request of the court and the prosecutor's office. Organizations are required to keep primary accounting documents, registers accounting and financial statements within the terms established in accordance with the rules for organizing state archival affairs, but not less than five years (part 1 of article 17).

The norms of the Resolution of the Goskomstat of Russia of 05/29/1998 N 57a, the Ministry of Finance of Russia of 06/18/1998 N 27n approved the Procedure for the phased introduction in organizations, regardless of the form of ownership, operating in the Russian Federation, unified forms of primary accounting documentation.

Primary accounting documents can be seized only by the bodies of inquiry, preliminary investigation and prosecutor's office, courts, tax inspectorates and the internal affairs bodies on the basis of their decisions in accordance with the legislation of the Russian Federation.

Evidence from the number of documents based on the norms of tax law includes certificates of income of individuals, which indicate information about the employee's income, which the prosecutor can immediately and simultaneously request from the employer and the Federal Tax Service, in its territorial bodies(department of the service for the constituent entities of the Russian Federation, interregional inspections, inspections of the service for districts, districts in cities without district division, inspections of the interdistrict level service).

Income certificates of individuals are issued in the form N 2-NDFL "Certificate of income of an individual for 200_ year", approved by Order of the Federal Tax Service of Russia dated 25.11.2005 N SAE-3-04 / [email protected](as amended by the decision of the Supreme Of the Arbitration Court RF dated 22.06.2006 N 4221/06), which reported in tax authorities about the impossibility of withholding tax and about the amount of the taxpayer's debt. They are filled in on paper and in electronic form, and are drawn up by tax agents for each individual who received income from a tax agent. They reflect the entire amount of income (excluding tax deductions), remuneration received by individuals for the performance of labor duties, as well as payments to pay off wage arrears in cash and in kind (Art. 208, sub. 3, cl. 2, Art. 211 of the Tax Code of the Russian Federation).

Evidence from the number of documents based on the norms of the law of compulsory pension insurance includes, for example, the forms of documents for individual (personified) accounting in the state pension insurance system, developed in accordance with Federal Law of December 15, 2001 N 167-FZ (as amended by 02.02.2006 N 19-FZ, as amended by the Definition of the Constitutional Court of the Russian Federation of 11.05.2006 N 187-O) "On compulsory pension insurance in the Russian Federation", Federal Law of 17.12.2001 N 173-FZ (as amended by of 03.06.2006 N 77-FZ) "On labor pensions in the Russian Federation", Federal Law of 01.04.1996 N 27-FZ (as amended on 09.05.2005 N 48-FZ) "On individual (personified) accounting in the system state pension insurance ", the Tax Code of the Russian Federation and the Instruction on the procedure for maintaining individual (personified) accounting of information about insured persons for the purposes of state pension insurance, approved by the Resolution of the Government Russian Federation of 03/15/1997 N 318 (as amended by dated 10.03.2006 N 126) "On measures for organizing individual (personified) accounting for the purposes of state pension insurance".

The aforementioned Federal Law "On Individual (Personified) Accounting in the State Pension Insurance System" stipulates that the policyholder provides the relevant body of the Pension Fund of the Russian Federation with information about the insured persons working for him, including the amount of earnings (income) on which insurance premiums are charged compulsory pension insurance.

The prosecutor may request following documents individual (personified) accounting in the state pension insurance system: individual information about the length of service, earnings (remuneration), income and accrued insurance premiums of the insured person (form SZV-1); an extract from the individual personal account of the insured person (form SZI-2); individual information about work experience, earnings (remuneration), income and assessed contributions to the FIU of the insured person (form SZV-3); an extract from the individual personal account of the insured person (form SZI-4); an extract from the individual personal account of the insured person (form SZI-5).

The forms of the above documents for individual (personified) accounting in the state pension insurance system were approved by the Resolution of the Board of the Pension Fund of the Russian Federation of October 21, 2002 N 122p "On the forms of individual (personified) accounting documents in the state pension insurance system and Instructions for filling them out" (as amended. from 14.10.2003 N 152p).

An application for the issuance of a court order is signed by a claimant or a prosecutor with appropriate powers. A list of documents is attached to the application.

The prosecutor prepares an application to the court, which must meet the requirements provided for by Art. 134, 135 Code of Civil Procedure of the Russian Federation. However, if the requirement is provided for by Art. 122 of the Code of Civil Procedure of the Russian Federation, but the location of the debtor is outside the Russian Federation, documents confirming the stated requirement are not presented, the existence of a dispute about the right is seen from the application and the submitted documents, the judge refuses to accept the application for the issuance of a court order (Article 125 of the Code of Civil Procedure of the Russian Federation) ...

According to the Code of Civil Procedure of the Russian Federation, the judge cannot return the application to the prosecutor to correct the deficiencies. Since the court order on the merits of the stated claim is issued within five days from the date of receipt of the application for the issuance of the court order to the court, without trial and summoning the parties to hear their explanations, and the judge does not have the authority to return the application to the prosecutor to eliminate the shortcomings that impede the initiation of the case, then the prosecutor, when submitting an application to the court, must fulfill all the requirements provided for by law, and provide the court with sufficient written (and material) evidence (Article 126 of the Code of Civil Procedure of the Russian Federation). A court order is issued by a judge without trial and summoning the parties, the prosecutor to hear their explanations (part 2 of article 126 of the Code of Civil Procedure of the Russian Federation).

/ "Labor law", 2007, N 3 /

Protection of labor rights and legitimate interests of citizens in the course of claim proceedings

By virtue of the requirements of the Labor Code of the Russian Federation, Part 1 of Art. 45, art. 131 of the Code of Civil Procedure of the Russian Federation, the prosecutor has the right to file a statement of claim with the court in the course of action in defense of the disputed: 1) labor rights and legitimate interests of citizens; 2) labor rights and legitimate interests of an indefinite circle of persons. As noted above, a citizen himself has the right to apply to the court with an application in the course of action in defense of his labor rights and legitimate interests, including with a demand to recover the wages accrued but not paid to the employee. Since the majority of employees do not want to file a written complaint about violation of labor rights in the field of wages to the prosecutor's office or to the court, the prosecutor himself can file a statement of claim to the court in defense of the rights of employees without their request. So he has the right to do not only by virtue of the norm of Part 1 of Art. 45 Code of Civil Procedure of the Russian Federation, but also the provisions of Art. 391 of the Labor Code of the Russian Federation, part 1 of Art. 3, part 2 of Art. 4 of the Code of Civil Procedure of the Russian Federation with the requirements to challenge the decisions of the labor dispute commission for non-compliance with labor legislation or other regulatory legal acts.

In 2005, in the interests of citizens and an indefinite circle of persons, prosecutors filed 341.2 thousand lawsuits (statements) in court for violation of labor rights, which is 112.8% more than in 2004, for a total amount of 2.7 billion . rub. (+ 121.5%). Of the 321.4 thousand claims considered by the court, 287.6 thousand were satisfied (89.5%). In the first half of 2006, these indicators are also growing and amount to: 240.8 thousand lawsuits (statements) in court (+ 24.4%) for the amount of 1.9 billion rubles. (+ 30%), out of the considered 206.7 thousand, 174.3 thousand (84.3%) were satisfied.

Prosecutors applying to court with a statement in defense of labor rights, in order to comply with the norms of Part 2 of Art. 3 of the Code of Civil Procedure of the Russian Federation, according to which the waiver of the right to go to court is invalid, it is recommended to demand an explanation from the employee about the circumstances of the violation of his labor rights, legitimate interests, and also to find out whether the employee waives his labor rights, legitimate interests or their protection in court ...

If the employee changes his mind and disposes of his dispositive right to work in a different way, refusing to enter into labor relations with the employer, then there will be no subject of protection, the prosecutor is not entitled to apply to the court with a statement. If the employee does not renounce his material rights, but refuses to defend them in court, then the prosecutor has the right to apply to the court with a statement. If the prosecutor appeals in defense of violated dispositive labor rights and legitimate interests of a citizen (employee), for example, when the latter is refused to conclude an employment contract, the application must contain a justification for the impossibility of filing a claim by the citizen (employee) himself, which is not required to apply in defense of rights workers for wages. The absence in the Code of Civil Procedure of the Russian Federation of a list of valid reasons and criteria for the state of health, in accordance with which a citizen cannot independently go to court, does not exempt the prosecutor when preparing a claim (or other) statement from fulfilling the requirements of the law and confirming the reasons why a citizen cannot apply himself to court. At the same time, the prosecutor must submit evidence to the court, copies of documents confirming not only the reasons, but also their legal importance, that is, the causal relationship with the inability of the employee to independently apply to the court with a statement.

The court has the right to assess the proof by the prosecutor of the impossibility of the employee's independent appeal to the court for valid reasons, but not to determine the valid reasons themselves (with the exception of the Constitutional Court of the Russian Federation).

As a person participating in the case, the prosecutor enjoys all the rights and procedural obligations of the plaintiff, with the exception of the right to conclude an amicable agreement and the obligation to pay court costs. If the prosecutor refuses the application for the conclusion of the employer with the plaintiff of an employment contract filed in the interests of another person, then the consideration of the case must be continued, provided that this person or his legal representative does not declare the waiver of the claim.

If the employee refuses the above-mentioned claims, then the court must terminate the proceedings, since this does not contradict the law, the citizen has the right to dispose of his ability to work at his own discretion.

However, neither the prosecutor nor the plaintiff, in whose interests the application was filed by the prosecutor, can, for example, waive the stated demands for the collection of wages, since this contradicts the requirements of the peremptory norm (due conduct of the parties) of labor law prohibiting forced labor and refusal the right to their defense in court. If this happens, then the court does not have the right to accept such a waiver of the claim and terminate the proceedings, on the contrary, it issues a ruling on this and continues the consideration of the case on the merits (part 2 of article 3, part 2 of article 39, part 2 article 45, part 4 article 173, article 220 of the Code of Civil Procedure of the Russian Federation).

It seems necessary to note that the prosecutor has the right to file a claim with the court to protect the labor rights and legitimate interests of employees in the following individual labor disputes:

on hiring and on imposing on the employer the obligation to conclude an employment contract;
on making entries in the work book, disputes about issuing a work book and paying for the delay in issuing it;
about the unreasonableness of suspension from work;
about transfers to another job (including challenging transfers and changing essential conditions labor);
about reinstatement at work;
on changing the date and reason for dismissal in the work book;
about payment for the time of forced absence;
on the payment of the difference in wages during the performance of lower-paid work;
on the payment of severance pay upon dismissal;
on the illegal actions or inaction of the employer in the processing and protection of the employee's personal data;
on early termination of an employment contract concluded for a specified period, disputes over the terms of termination and termination of an employment contract;
on the application of legislation on working hours;
related to the application of legislation on the time of rest;
about wages;
on the protection of the labor rights of persons subjected to discrimination (parts 2 and 3 of article 391 of the Labor Code of the Russian Federation);
about refusal to hire;
on the application of legislation on guarantees and compensations;
the employer's material liability to the employee (for example, the employer's obligation to compensate the employee material damage caused as a result of illegal deprivation of his ability to work, damage caused to the employee's property);
on the application of disciplinary measures;
related to the application of labor legislation for women and persons with family responsibilities;
related to the application of labor legislation for employees under the age of 18;
on the application of legislation on benefits for employees who combine work with training;
on the regulation of labor of certain categories of workers (for example, part-time workers; workers employed in seasonal work who have entered into an employment contract for up to two months, working on a rotational basis; homeworkers; persons working in the Far North and equivalent areas; teaching staff; workers of religious organizations, etc.);
on disagreements on the investigation, registration and recording of accidents at work, non-recognition by the employer (his authorized representative) of the accident, refusal to investigate the accident and draw up the corresponding act, disagreement of the victim or his proxy with the content of this act (Article 231 of the Labor Code RF);
on challenging normative legal acts on labor, which were adopted and published in accordance with the established procedure (part 1 of article 251 of the Code of Civil Procedure of the Russian Federation).

The above list of individual labor disputes is not exhaustive. It lists the disputes that are most often brought to the court of general jurisdiction. However, for the prosecutor, it is important to classify labor disputes within the framework of the rights granted to him by the requirements of Part 1 of Art. 45 of the Code of Civil Procedure of the Russian Federation, which consist of the possible or proper behavior of the prosecutor when applying to the court in defense of the labor rights and legitimate interests of citizens.

Disputes about wages, which are regulated by peremptory norms of law and are subject to mandatory protection, have acquired particular relevance in protecting the labor rights and legitimate interests of citizens. The Labor Code of the Russian Federation establishes the employer's liability for delayed wages. Despite this, in many regions it is not issued on time. Although the amount of unpaid wages tends to decrease, it still remains at a high level and as of July 1, 2006 amounted to 5.4 billion rubles.

The measures of the prosecutor's response to protect the rights of workers to wages, taken in civil proceedings, allow solving the above problems.

Preparation of a statement of claim for the collection of wages and sending it to court. The norms of the Code of Civil Procedure of the Russian Federation establish more stringent formal requirements for the statement of claim, with which the employee applies to the court for the protection of his labor rights and legitimate interests. The prosecutor's compliance with the written form of the statement of claim and its content is one of the most important conditions for the successful exercise of the right to go to court with a claim in defense of the labor rights and legitimate interests of others.

The statement of claim by the prosecutor, as well as the statement for the issuance of a court order, in form and content must comply with the requirements of Art. 131, 132 Code of Civil Procedure of the Russian Federation. However, due to the requirements of Art. 39, clauses 4, 5 h. 2 Art. 131 of the Code of Civil Procedure of the Russian Federation, in the statement of claim the prosecutor must indicate the subject and basis of the claim, taking into account the fact that it is necessary to prove that the plaintiff belongs to the disputed labor rights and legitimate interests.

First of all, in the title of the statement of claim, it is necessary to briefly formulate the subject of the claim, the requirements for the defendant and the violation of the plaintiff's labor rights. Let us consider the subject of the claim using the example of the employee's right to wages, since, in addition to regulating labor rights, legislation provides for the regulation of the interests of labor relations related to wages.

Basic principles legal regulation labor relations, provided for by the norms of international law and the Constitution of the Russian Federation, ensure the rights of each employee to timely and full payment of wages based on the following approaches to the regulation of wages: firstly, wages must not be lower than the minimum wage established by federal law , which is not limited to the maximum size and is charged in accordance with the requirements of Art. 2, 129 - 163 of the Labor Code of the Russian Federation; secondly, wages must be fair, ensure a dignified existence of the employee and his family, meet the interests of the employee in accordance with Art. 2, 23 - 55, 129 - 163 of the Labor Code of the Russian Federation.

In the Labor Code of the Russian Federation (effective from 01.02.2002), a legislative definition of wages appeared for the first time as: remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation payments (additional payments and allowances of a compensatory nature, in including for work in conditions deviating from normal, work in special climatic conditions and in territories exposed to radioactive contamination, and other compensatory payments) and incentive payments in the form of additional payments and incentive payments, bonuses and other incentive payments (Article 129 Labor Code of the Russian Federation).

In Art. 132 of the Labor Code of the Russian Federation enshrines the employee's right to equal pay for work of equal complexity, equal quantity and quality, which is not limited to the maximum amount, but also cannot be lower than the minimum wage established by federal law.

The right to receive a monthly wage not lower than the minimum wage is only available to those employees who have fully worked the working time specified for a given period and fulfilled the labor standards (labor duties). If an employee works part-time, then his remuneration is made in proportion to the time worked or depending on the output, so he cannot claim a monthly wage not lower than the minimum wage.

Indexation of wages in organizations (except for budgetary ones) is carried out in accordance with the procedure established by the collective agreement, agreements or local regulations of the organization, which should be requested by the prosecutor in order to check the calculation of the monetary amount of wages.

When determining the subject of the claim for the recovery of wages, when recalculating the disputed amount of wages, the prosecutor may clarify what the violation of the rights and legitimate interests of the employee is perceived to be:

whether the method of establishing the remuneration system, the size of tariff rates or salaries (official salaries), additional payments and allowances of a compensatory, incentive nature and the bonus system have been violated, as well as by what regulatory legal act, collective agreement, agreement, labor contract they are regulated (Article 135 of the Labor Code RF);
whether the requirements for wages of employees of public sector institutions have been violated, whether it is carried out, as provided for in Art. 143 of the Labor Code of the Russian Federation, based on the tariff system of remuneration, which includes tariff rates, the size of the tariff rate (salary) of the first category of the Unified tariff scale for remuneration of employees of federal government agencies, as well as the minimum wage rate (salary) in regional and municipal tariff systems of remuneration cannot be lower than the minimum wage established by federal law;
whether the requirements of Art. 167 of the Labor Code of the Russian Federation on remuneration of an employee for the period of a business trip, which is guaranteed the preservation of average earnings for all working days of the week according to the schedule established at the place of permanent work. The procedure for calculating average earnings is determined by Art. 139 of the Labor Code of the Russian Federation and the Regulation on the specifics of the procedure for calculating the average wage, approved by the Government of the Russian Federation of 11.04.03 N 213 (as amended by the decisions of the Supreme Court of the Russian Federation of 18.11.2003 N GKPI 03-1049, from 13.07.2006 N GKPI06 -637);
whether the requirements of Art. 133, 134, 421 of the Labor Code of the Russian Federation on increasing the wages of employees (indexing of wages is carried out in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms);
whether the requirements for incentive allowances in the form of bonuses, other additional payments established by the organization independently within the limits of available funds, taking into account the opinion representative body workers (art. 57, part 1 of art. 136, 144 of the Labor Code of the Russian Federation);
whether the provisions of Part 1 of Art. 136, art. 149 - 154 on wages in conditions deviating from normal (performance of work of various qualifications, combination of professions, work outside normal working hours, at night, weekends and non-working holidays, and others), which is carried out at an increased rate in accordance with labor legislation and other regulatory legal acts, collective agreements, agreements, local regulations, labor contracts (Articles 149 - 154 of the Labor Code of the Russian Federation);
whether the requirements of Art. 146 - 148, 315 - 317 of the Labor Code of the Russian Federation on the remuneration of workers engaged in heavy work, work with harmful, hazardous, special working conditions, as well as those employed in work in areas with special climatic conditions;
whether the requirements of Art. 139, 167, 321 of the Labor Code of the Russian Federation on payment of vacations and payment of compensation for unused vacations, business trips, as well as Resolution of the Government of the Russian Federation of 11.04.2003 N 213, which approved the Regulation on the specifics of the procedure for calculating average wages in some situations and for certain categories of employees ;
whether the provisions of Art. 178, 296, 318 of the Labor Code of the Russian Federation when calculating and paying severance pay to a retiring employee;
whether the requirements of sub. 6 p. 1 of Art. 208, 209, 217 of the Tax Code of the Russian Federation when imposing personal income tax on salaries, as well as the requirements of paragraph 1 of Art. 236, 238, 255 of the Tax Code of the Russian Federation, art. 10 of the Federal Law of 15.12.2001 N 167-FZ (as amended on 02.02.2006 N 19-FZ as amended by the Definition of the Constitutional Court of the Russian Federation of 11.05.2006 N 187-O) "On compulsory pension insurance in the Russian Federation" when calculating the unified social tax and insurance contributions for compulsory pension insurance;
whether the deductions from the employee's wages were correctly made to pay off his debts to the employer, as provided for in Art. 137, 138 of the Labor Code of the Russian Federation, part 3 of Art. 155, part 3 of Art. 157 of the Labor Code of the Russian Federation, as well as the requirements of the Federal Law of July 21, 1997 N 119-FZ (as amended on December 27, 2005 N 197-FZ) "On enforcement proceedings"and the Criminal Executive Code of the Russian Federation.

The prosecutor in the statement of claim must indicate not only what is the violation of the rights or legitimate interests of the plaintiff, but also his demand, which includes the application of the sanction provided for in Art. 236 of the Labor Code of the Russian Federation, which establishes the material liability of the employer in case of violation of the established deadline for the payment of wages, vacation pay, payments upon dismissal and other payments due to the employee.

In Art. 236 of the Labor Code of the Russian Federation established the employer's obligation to pay the employee interest for delayed wages and other payments due to the employee, regardless of the proof of damage to the employee and the employer's fault in committing illegal actions that caused damage to the employee, i.e. general legally significant circumstances to be proven when bringing a party to an employment contract to liability. In this connection, the employer is obliged to pay those established in Art. 236 of the Labor Code of the Russian Federation, interest if it is proved that he has violated the terms of payment of the amounts due to the employee, regardless of the proof of the listed general legally significant circumstances.

Due to the transition from the market, a simple work force to the market of qualified intellectual power, where its use value is in high demand, the need arose judicial protection not only the labor rights of citizens, but also a wide range of legitimate interests of employees of intellectual labor. Interest has become an independent subject of not only civil, but also labor disputes, the subject of protection in civil proceedings.

As the basis for the claim, the prosecutor should indicate the circumstances of the case, which contain legal requirements and evidence confirming these circumstances (paragraph 5 of part 2 of article 131 of the Code of Civil Procedure of the Russian Federation).

Claims in court against the organization are presented at the place of its location (Article 28 of the Code of Civil Procedure of the Russian Federation). The legislator has established additional guarantees judicial protection of the labor rights of citizens, indicating that claims for the restoration of the labor rights of citizens can be filed in court at the place of residence of the plaintiff. The right to determine jurisdiction at the choice of the plaintiff may also be exercised by the prosecutor.

The statements of claim can be sent by the prosecutor to the court by mail with acknowledgment of receipt or sent directly to the judge at a personal appointment. The latter is preferable, since it makes it possible to verbally state the essence of the employee's requirements to the judge, check the presence or absence of a dispute about labor rights and legitimate interests, pay attention to the difficulties in obtaining evidence, answer the judge's questions, and also agree on the date of the appointment of the case for consideration taking into account employment judge and prosecutor. The statement of claim is submitted to the court with copies according to the number of defendants and third parties involved in the case.

The judge, within five days from the date of receipt of the prosecutor's statement of claim to the court, is obliged to consider the issue of accepting it for proceedings, about which he makes a ruling, on the basis of which he initiates a case arising from labor relations in the court of first instance (Article 133 of the Code of Civil Procedure of the Russian Federation). At the same time, Art. 134 of the Code of Civil Procedure of the Russian Federation provides that a judge may refuse to accept the prosecutor's statement of claim, return it to the prosecutor (Article 135), leave the application motionless (Articles 131, 132, part 1 of Article 136 of the Code of Civil Procedure of the Russian Federation), about which he issues a ruling ... The main goal of the last two procedures is the elimination by the prosecutor of the deficiencies in the statement of claim within the time period established by the court ruling. The prosecutor may file an ancillary complaint against the above-mentioned court rulings, made contrary to the requirements for order and legal grounds.

When preparing statements of claim to the court, it is necessary to pay attention to the delimitation of competence between justices of the peace and judges of district (city) courts, since the judge returns the statement of claim to the prosecutor if the labor case is outside the jurisdiction of this court. According to Art. 47 of the Constitution of the Russian Federation, no one can be deprived of the right to have his case examined in that court and by the judge to whose jurisdiction it is attributed by law. for example, if the prosecutor applies with a statement of claim in defense of the employee's rights to reinstate him at work to the magistrate, the latter must return such a statement to the prosecutor, since in accordance with paragraph 6 of part 1 of Art. 23 of the Code of Civil Procedure of the Russian Federation, cases of reinstatement at work do not fall within its competence and are considered by district (city) courts.

At the request of the plaintiff or the prosecutor participating in the case, the judge can take interim measures in cases where their failure to accept them complicates or makes impossible the execution of the court decision (Article 139 of the Code of Civil Procedure of the Russian Federation). These measures must be proportionate to the claim declared by the prosecutor (part 3 of article 140 of the Code of Civil Procedure of the Russian Federation). The statement of the plaintiff and the prosecutor for securing the claim is considered on the day of its receipt by the court without notifying the defendant and other persons participating in the case, about which a ruling is made by the court (Article 141 of the Code of Civil Procedure of the Russian Federation). Security for a prosecutor's claim can be canceled by the same judge or court and only at the request of the defendant or on the initiative of a judge or court (Article 144 of the Code of Civil Procedure of the Russian Federation).

Participation of the prosecutor in preparing the case for trial. In order to administer justice on the basis of adversariality and equality of parties (Article 12 of the Code of Civil Procedure of the Russian Federation), the court, after issuing a ruling on the preparation of the case for trial (Article 147 of the Code of Civil Procedure of the Russian Federation), notifies or summons the parties and the prosecutor to court in the manner prescribed by law (Art. 113 - 117 of the Code of Civil Procedure of the Russian Federation). The definition indicates the actions that should be taken by the parties, the prosecutor, and other persons participating in the case, their terms necessary to ensure the correct and timely consideration and resolution of the case (part 1 of article 147 of the Code of Civil Procedure of the Russian Federation).

Preparation for trial is mandatory for each labor case and must be carried out by a judge with the participation of the prosecutor who filed the application (part 2 of article 147 of the Code of Civil Procedure of the Russian Federation). In accordance with Art. 148 - 150 of the Code of Civil Procedure of the Russian Federation, the essence of the preparatory stage is the presentation of the necessary evidence by the parties, the prosecutor, and other persons participating in the case. At the stage of the trial, it is allowed to present or demand only additional evidence (part 1 of article 169 of the Code of Civil Procedure of the Russian Federation). Within the meaning of Art. 174, 175, 181 - 190 of the Code of Civil Procedure of the Russian Federation, this stage is intended for the study of evidence and proving legally significant circumstances in the case, and not for the presentation of evidence.

The foregoing directs the prosecutor and the defendant to the fact that at the stage of preparing the case, they must present evidence to each other, disclose them (paragraph 1 of part 1, paragraph 3 of part 2 of article 149, paragraphs 2, 3, 7 of part 1, part 2, article 150 of the Code of Civil Procedure of the Russian Federation), and the prosecutor and the plaintiff - to clarify the claims, prepare for proving in an adversarial trial.

First, at the stage of preparing the case for trial, as a result of the disclosure of evidence by the employer, the prosecutor and the plaintiff solve the tasks provided for in Art. 148 of the Code of Civil Procedure of the Russian Federation and aimed at clarifying the subject, the grounds for the claim, the factual circumstances of the case, on the reclamation and presentation of additional evidence confirming them. Their successful resolution allows the prosecutor to change the basis or subject of the claim, increase or decrease the amount of the claim, or refuse the application, as provided for in Art. 39, part 2 of Art. 45 Code of Civil Procedure of the Russian Federation.

Secondly, the prosecutor and the plaintiff at this stage have the right to participate in determining the burden of proof for labor dispute by filing a petition. The prosecutor must prove the circumstances to which he refers as the basis for his claims only if not otherwise provided by federal law (part 1 of article 56 of the Code of Civil Procedure of the Russian Federation).

Article 22 of the Labor Code of the Russian Federation on the employer, for example, is entrusted with the following proper behavior:

comply with laws and other regulatory legal acts, local regulations, collective bargaining agreements, agreements and labor contracts;
provide employees with work stipulated by the employment contract;
to ensure labor safety and conditions that meet the requirements of labor protection and hygiene;
provide workers with equal pay for work of equal value;
pay in full the wages due to employees within the time frame established by the Labor Code of the Russian Federation, the collective agreement, the organization's internal labor regulations, and labor contracts.

Thus, by the norms of substantive law, the fulfillment specified requirements of the law and confirmation of their implementation is entrusted to the employer himself, but not to the employee. for example If the prosecutor filed a lawsuit in defense of legitimate interests with demands to pay wages at the price of labor, then he should file a petition with the court that the burden of proving the legality of payment of wages should be placed on the employer.

In such situations, taking into account Part 1 of Art. 56 of the Code of Civil Procedure of the Russian Federation, the court determines what circumstances are important for the case, which party should prove them, brings the circumstances up for discussion, even if the parties did not refer to any of them (part 2 of article 56 of the Code of Civil Procedure of the Russian Federation). However, the right to demand this or that evidence belongs to the plaintiff, the prosecutor who filed an application with the court, and the defendant. The prosecutor may be released from proving the circumstances in the cases and on the grounds provided for by Art. 61 of the Code of Civil Procedure of the Russian Federation.

At this stage, the prosecutor, the plaintiff perform the following procedural actions: 1) provide the defendant with copies of evidence substantiating the factual grounds of the claim; 2) submit petitions to the judge to request evidence that they cannot obtain on their own without the help of the court (part 1 of article 149 of the Code of Civil Procedure of the Russian Federation).

The prosecutor should submit evidence to the court, which must meet the requirements of Art. Art. 59 and 60 of the Code of Civil Procedure of the Russian Federation. Separate evidence (explanation of the parties and third parties, testimony, written evidence, material evidence, audio and video recordings, expert opinion) submitted by the prosecutor must comply with the special provisions set out in Art. 68 - 87 Code of Civil Procedure of the Russian Federation. Such evidence may appear in court proceedings if, at the stage of pre-trial preparation, the prosecutor or the plaintiff files requests for this. According to clauses 7, 8, 9 h. 1 of Art. 150 of the Code of Civil Procedure of the Russian Federation, when preparing a labor case for trial, the judge permits the prosecutor's petitions to call witnesses, to appoint an examination, an expert to conduct it, as well as to involve a specialist in the process, to demand evidence from organizations or citizens that the prosecutor or the plaintiff did not can get it yourself.

The court has the right to invite the parties and the prosecutor to present additional evidence. In case of difficulties, the court, at the request of the prosecutor, assists him in collecting and requesting evidence. This petition should indicate the evidence itself, what circumstances relevant to the case can be confirmed or refuted by them, indicate the reasons preventing the receipt of evidence, and the location of its location. The court issues a request to the prosecutor to obtain evidence or asks for evidence directly (Article 57 of the Code of Civil Procedure of the Russian Federation).

During the preparation of the case for trial, the judge in the cases provided for by Art. 152 of the Code of Civil Procedure of the Russian Federation, resolves the issue of holding a preliminary court session, its time and place (clause 13, part 1 of article 150 of the Code of Civil Procedure of the Russian Federation) and notifies the parties, the prosecutor participating in the case, about the time and place of the preliminary court session (part 2 Article 152 of the Code of Civil Procedure of the Russian Federation).

Preliminary hearing. The legislator provided the court with an additional opportunity to prepare more thoroughly for the trial, to complete the stage of preparing the case in the form of a court session, keeping a court record. A preliminary court session is allowed for the purpose of procedurally securing the regulatory actions of the parties, the prosecutor, committed in preparing the case for trial, as well as to determine the circumstances that are important for the correct consideration and resolution of the case, to determine the sufficiency of evidence in the case, to study the facts of missing the deadline for applying to the court and the limitation period (part 1 of article 152 of the Code of Civil Procedure of the Russian Federation). The preliminary session completes the preparation of the case for trial. It is necessary for the court in order to resolve the last organizational issues and in the future direct its actions exclusively to the consideration of the dispute.

If the prosecutor has not filed a motion to summon witnesses, order an expert examination, request Required documents, then this should be done at the preliminary court session, which will be reflected in the minutes of the court session. The parties and the prosecutor in the preliminary court session have the right to present evidence, give reasons, and file petitions (part 2 of article 152 of the Code of Civil Procedure of the Russian Federation). In this session, the court may consider the defendant's objection regarding the plaintiff's omission of the limitation period for the protection of rights and the statutory time limit for going to court, without good reason. Upon establishing such a fact, the judge makes a decision to dismiss the claim to the prosecutor without examining other factual circumstances in the case. The decision of the court can be appealed by the prosecutor in an appeal or cassation procedure (part 6 of article 152 of the Code of Civil Procedure of the Russian Federation).

In the presence of the circumstances provided for in Art. 215, 216, 220, 222 of the Code of Civil Procedure of the Russian Federation, the proceedings on the case in the preliminary court session can be suspended, terminated, left without consideration, about which a reasoned court ruling is issued, against which a private complaint can be filed. If the court makes an unjustified or illegal determination, it is subject to cancellation.

In the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" it is said which reasons are valid when the deadline for applying to the court is missed. This is, for example, the plaintiff's illness, his being on a business trip, an action force majeure(natural disasters), the need to care for seriously ill family members. A protocol is drawn up about the preliminary court session held in accordance with the norms of Art. 229, 230 of the Code of Civil Procedure of the Russian Federation, to which the prosecutor has the right to submit comments in accordance with the requirements of Part 7 of Art. 152, art. 231 Code of Civil Procedure of the Russian Federation.

The stage of the proceedings in the court session is aimed at examining the evidence and proving the circumstances of the case. Labor cases are among the most difficult cases compared to civil affairs considered by the courts of general jurisdiction. In each specific case, the prosecutor should determine, among a large number of sources of labor law, those legal acts and their norms that must be followed when examining written and other evidence, including information obtained during the interrogation of witnesses on the documents in the case.

The judge, recognizing the case as prepared, makes a ruling on his appointment to the proceedings in the court session, notifies the parties, the prosecutor, other persons participating in the case, about the time and place of the case consideration, calls other participants in the process (Article 153 of the Code of Civil Procedure of the Russian Federation). According to Art. 155 of the Code of Civil Procedure of the Russian Federation, the examination of the labor case at the suit of the prosecutor takes place in a court session with the obligatory notification of the prosecutor and other persons participating in the case about the time and place of the session.

The prosecutor involved in the case is obliged to observe the established order in the court session (part 5 of article 158 of the Code of Civil Procedure of the Russian Federation), gives his explanations standing (part 2 of article 158 of the Code of Civil Procedure of the Russian Federation). The presiding judge takes the necessary measures to ensure proper order in the court session, his orders are binding on the prosecutor (part 3 of article 156 of the Code of Civil Procedure of the Russian Federation). To the prosecutor who violates the order in the court session, the presiding judge on behalf of the court has the right to apply the measures provided for in Part 1 - 3 of Art. 159 Code of Civil Procedure of the Russian Federation. The objections of the prosecutor regarding the actions of the presiding judge are recorded in the minutes of the court session (part 2 of article 156 of the Code of Civil Procedure of the Russian Federation).

The prosecutor has the right to declare challenges (Articles 16 - 19 of the Code of Civil Procedure of the Russian Federation), to order procedural rights and obligations as a person participating in the case, under Art. 34, 35, 39, part 2 of Art. 45 Code of Civil Procedure of the Russian Federation. He has the right in writing, as well as with the help of audio recordings, to record the course of the trial. Video recording by the prosecutor of the court session is allowed with the permission of the court (part 7 of article 10 of the Code of Civil Procedure of the Russian Federation). He must strictly comply with the principles of legal proceedings provided for in Art. 3 - 13, 56, 59 - 61, 67 Code of Civil Procedure of the Russian Federation. His petitions (of other persons participating in the case) on issues related to the proceedings (including the postponement of the proceedings) are resolved by the court after hearing the opinions of other persons participating in the case (Article 166 of the Code of Civil Procedure of the Russian Federation).

The prosecutor participating in the labor case is obliged to notify the court of the reasons for his failure to appear and provide evidence of the validity of these reasons (part 1 of article 167 of the Code of Civil Procedure of the Russian Federation). If the prosecutor participating in the case does not appear at the court session, in respect of whom there is no information about his notification, the court shall postpone the proceedings. When the prosecutor notifies the time and place of the court session and recognizes the reasons for his failure to appear as valid, the court postpones the proceedings (part 2 of article 167 of the Code of Civil Procedure of the Russian Federation).

If the prosecutor participating in the case fails to appear and is notified of the time and place of the court session, the court may consider the case if the prosecutor does not provide information about the reasons for the failure to appear or the court recognizes the reasons for his failure to appear disrespectful (part 3 of article 167 of the Code of Civil Procedure of the Russian Federation). He has the right to ask the court to consider the case in his absence and to send him a copy of the court decision (part 5 of article 167 of the Code of Civil Procedure of the Russian Federation).

The prosecutor may file a motion to postpone the case if witnesses, experts, specialists, translators fail to appear at the court session. The court, having heard the opinion of other persons participating in the case, about the possibility of considering the case in the absence of witnesses, experts, specialists, translators, may postpone its consideration (part 1 of article 168 of the Code of Civil Procedure of the Russian Federation), and already if they fail to appear on a secondary call, these persons may be fined, and the witness - brought (part 2, article 168 of the Code of Civil Procedure of the Russian Federation).

Part 1 of Art. 169 of the Code of Civil Procedure of the Russian Federation stipulates that the prosecutor may file a motion to postpone the proceedings if it is necessary to present or demand only additional evidence, to involve other persons in the case, or to perform other procedural actions. When the proceedings are postponed, the court has the right to interrogate the witnesses who have appeared only if the prosecutor and the defendant are present at the hearing (Article 170 of the Code of Civil Procedure of the Russian Federation). When considering the case on the merits, after the report of the case by the presiding judge, the prosecutor declares that he supports the claims of the plaintiff or not (Article 172 of the Code of Civil Procedure of the Russian Federation).

After the report of the case by the court, the prosecutor, who applied to the court for the protection of labor rights and the legitimate interests of others, is the first to give explanations. After that, the persons participating in the case have the right to ask questions to the prosecutor. Judges have the right to ask questions at any time when the prosecutor explains it (part 1 of article 174 of the Code of Civil Procedure of the Russian Federation).

In case of failure to appear in court, the prosecutor has the right to give explanations in writing, which are subject to announcement by the presiding judge (part 2 of article 174 of the Code of Civil Procedure of the Russian Federation). After the explanations, the prosecutor expresses his opinion on determining the sequence of examining the evidence in the case (Article 175 of the Code of Civil Procedure of the Russian Federation).

The court usually examines the evidence presented by the prosecutor first, unless the burden of proof is imposed on the defendant by law. The interrogation of witnesses is carried out by the prosecutor after the presiding judge in the manner prescribed by the requirements of Art. 177 Code of Civil Procedure of the Russian Federation. The study of written evidence, correspondence and telegraph messages, material evidence, audio or video recording is carried out by him in accordance with the rules of the requirements of Art. 181 - 188 Code of Civil Procedure of the Russian Federation.

Who entered the process on the basis of Part 3 of Art. 45 of the Code of Civil Procedure of the Russian Federation, the prosecutor, upon completion of the examination of evidence during the trial, upon the presentation of the presiding judge, issues an opinion on cases of reinstatement at work in order to exercise the powers assigned to him to ensure the rule of law. A similar obligation is contained in clause 4 of the Order of the Prosecutor General of the Russian Federation of 02.12.2003 N 51. According to statistics in 2005, courts of first instance with the participation of the prosecutor considered 26.4 thousand cases of reinstatement at work (-1.4%). In accordance with the conclusions of prosecutors, 25.0 thousand court decisions and rulings were issued (-1.7%). In the first half of 2006, there is also a downward trend in these indicators. With the participation of the prosecutor, 12.8 thousand such cases were considered (-5.7%). According to the conclusions of prosecutors, the courts issued 12.0 thousand decisions and rulings (-6%). Insofar as given form In our opinion, the activities of the prosecutor do not relate specifically to the designated topic of the Methodological Recommendations, then in them the main attention is focused on the protection of labor rights by the prosecutor in civil proceedings.

Returning to the stage of the proceedings in the court session, it should be noted that the prosecutor who filed an application in defense of labor rights and the legitimate interests of citizens, if necessary, comes up with additional explanations. At the end of the consideration of the case on the merits, the court proceeds to judicial pleadings (Article 189 of the Code of Civil Procedure of the Russian Federation), during which the prosecutor must comply with the requirements of Art. 45 of the Code of Civil Procedure of the Russian Federation, which do not allow the same prosecutor to give an opinion and speak in debates on the same case.

The judicial pleadings consist of speeches of the persons participating in the case, their representatives. The prosecutor who has applied to the court for the protection of labor rights and the legitimate interests of others is the first to appear in the judicial pleadings. After making speeches by all persons participating in the case, their representatives, the prosecutor may make a remark in connection with what was said by other persons participating in the case. The prosecutor, other persons participating in the case, their representatives in their speeches after the end of the consideration of the case on the merits are not entitled to refer to circumstances that were not clarified by the court, as well as to evidence that was not examined in the court session (part 1 of article 191 of the Code of Civil Procedure RF).

After the judicial pleadings, the court retires to the deliberation room to make a decision, which the presiding judge announces to those present in the courtroom (Article 192 of the Code of Civil Procedure of the Russian Federation). After the adoption and signing of the decision, the court returns to the courtroom, where the presiding judge or one of the judges announces the court decision, explains its content, the procedure and the term for its appeal, and also when the prosecutor can familiarize himself with a reasoned court decision (Articles 193 - 209 of the Code of Civil Procedure of the Russian Federation) ...

Appeal of the prosecutor to the court with a statement on the recognition as invalid of the normative legal acts regulating labor legal relations, including in the field of remuneration

In connection with new edition Art. 135 of the Labor Code of the Russian Federation "Determination of wages" (as amended by the Federal Law of June 30, 2006 N 90-FZ), the volume of regulatory legal acts in the field of labor remuneration has increased. Part 2 of this article provides that remuneration systems, including the size of wage rates, salaries (official salaries), additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, incentive systems of additional payments and bonuses, and a bonus system are established collective agreements, agreements, local regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms. Practice shows that such acts often contradict the requirements of the legislation.

The prosecutor by virtue of Part 1 of Art. 251 of the Code of Civil Procedure of the Russian Federation has the right to apply to the court in defense of the labor rights and legitimate interests of citizens, an indefinite circle of persons in cases arising from public legal relations, on the recognition of normative legal acts, including on the regulation of wages, contradicting the law and on the recognition of them not acting in whole or in part, the consideration and resolution of which by the court is carried out according to the rules of the claim proceeding with the features provided for by Art. 245 - 253, 259 - 261 of the Code of Civil Procedure of the Russian Federation, as well as taking into account the Resolution of the Constitutional Court of the Russian Federation of July 18, 2003 N 13-P.

An application for disputing a normative legal act is considered within one month from the date of its submission by the prosecutor. Depending on the circumstances of the case, the court may consider the application in the absence of the prosecutor, notified of the time and place of the court session. The refusal of the prosecutor who applied to the court from his claim does not entail the termination of the proceedings, but the recognition of the claim by the state authority, local government body or official who adopted the contested normative legal act, is optional for the court. These cases are subject to the jurisdiction of the courts of general jurisdiction (parts 1 and 2 of article 251 of the Code of Civil Procedure of the Russian Federation). The exception is cases on challenging such normative legal acts, the verification of the legality of which is attributed to the exclusive competence of the Constitutional Court of the Russian Federation (part 3 of article 251 of the Code of Civil Procedure of the Russian Federation).

In accordance with Part 4 of Art. 251 of the Code of Civil Procedure of the Russian Federation, the prosecutor submits an application for challenging regulatory legal acts not specified in Art. 26 and 27 of the Code of Civil Procedure of the Russian Federation, according to jurisdiction in district court at the location of the public authority, local self-government body or official that adopted a regulatory legal act, and when challenging regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation and other federal public authorities affecting labor rights, freedoms and legitimate interests of citizens, sends an application to Supreme Court of the Russian Federation (clause 2, part 1, article 27 of the Code of Civil Procedure of the Russian Federation).

When preparing a statement of claim to the court, the prosecutor must take into account that it must meet the requirements for the form and content of such statements established in Art. 131 of the Code of Civil Procedure of the Russian Federation, and the peculiarities of their filing in court. According to Art. 247, h. 4, 5 art. 251 of the Code of Civil Procedure of the Russian Federation, such a statement must contain the following data: the name of the state authority, local government or official who adopted the contested normative legal act; name and date of this act; what labor rights, legal interests of a citizen or an indefinite circle of persons are violated by him or his part.

The prosecutor shall attach to his application a copy of the contested normative legal act or a part thereof, indicating which mass media and when this act was published. In accordance with Part 2 of Art. 253 of the Code of Civil Procedure of the Russian Federation, the prosecutor must demand the recognition by the court of a normative legal act or its part as contrary to the law and not in effect in full or in part from the date of its adoption.

The subject of claims in disputes regarding the recognition of an act as contradicting the law in whole or in part should be determined taking into account clause "k" part 1 of Art. 72 of the Constitution of the Russian Federation, part 1 of Art. 6 of the Labor Code of the Russian Federation. State authorities of the constituent entities of the Russian Federation adopt laws and other normative legal acts containing labor law norms on issues that are not attributed to the powers of federal state authorities (part 2 of article 6 of the Labor Code of the Russian Federation).

An act contested by the prosecutor, contrary to the law, must be: normative legal; adopted and published in accordance with the established procedure; they violated labor rights, freedoms and legitimate interests guaranteed by the Constitution of the Russian Federation, laws and other normative legal acts, of persons applying to the court (part 1 of article 251 of the Code of Civil Procedure of the Russian Federation). A normative legal act not published in accordance with the established procedure is subject to appeal in accordance with the norms of Ch. 25, not chap. 24 Code of Civil Procedure of the Russian Federation.

The procedure for the publication and entry into force of normative legal acts is provided for by the Federal Law of June 14, 1994 N 5-FZ "On the Procedure for the Publication and Entry into Force of Federal Constitutional Laws, Federal Laws, Acts of the Chambers of the Federal Assembly" (as amended on October 22, 1999); Decree of the President of the Russian Federation of 23.05.1996 N 763 "On the procedure for publication and entry into force of acts of the President of the Russian Federation, the Government of the Russian Federation and regulatory legal acts of federal executive bodies" (as amended on 28.06.2005); Decree of the Government of the Russian Federation of 13.08.1997 N 1009 "On Approval of the Rules for the Preparation of Normative Legal Acts of Federal Executive Bodies and Their State Registration" (as amended on 30.09.2002).

The prosecutor's application is not subject to consideration in the manner prescribed by Chapter. 23 Code of Civil Procedure of the Russian Federation, if there is a dispute about the law. It remains motionless, as the court issues a ruling indicating the need for the prosecutor to issue a statement of claim in compliance with Art. 131 and 132 of the Code of Civil Procedure of the Russian Federation. The court has the right to refuse the prosecutor to accept the application, if there is a court decision that has entered into legal force, which verified the legality of the contested normative legal act of the state authority, local government or official, on the grounds specified in the application, and if this is established during the consideration of the case , then terminate the proceedings on the case arising from public legal relations in the manner prescribed by Art. 248, part 8 of Art. 251 Code of Civil Procedure of the Russian Federation.

As a general rule, all cases arising from public legal relations are considered and resolved by a judge alone. Collectively, they are considered and resolved according to the general rules of the action procedure with the peculiarities established by Ch. 23 - 26 of the Code of Civil Procedure of the Russian Federation and other federal laws. According to Part 2 of Art. 246 of the Code of Civil Procedure of the Russian Federation, when considering such cases, the rules of absentee proceedings cannot be applied.

In accordance with the provisions of Art. 249 of the Code of Civil Procedure of the Russian Federation, the burden of proving the circumstances that served as the basis for the adoption of a normative legal act, its legality, rests with the bodies that adopted the normative legal act, the persons who adopted it. The prosecutor should take into account exceptions to the adversarial principle in a case. So, the court, considering and resolving these cases, is not bound by the grounds and arguments of the stated requirements in the claim, it can demand evidence on its own initiative in order to resolve it correctly (part 3 of article 246 of the Code of Civil Procedure of the Russian Federation). In addition, the court has the right in accordance with Part 4 of Art. 246 of the Code of Civil Procedure of the Russian Federation to recognize the mandatory attendance at a court session of a representative of a public authority, a local government body or an official.