Allocate types of liability in labor law. Material. concept and types of punishment

The employee may be exempt from liability. This occurs in the event of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to ensure proper storage conditions for property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation). It should be borne in mind that the obligation to prove the absence of circumstances excluding the material liability of the employee lies with the employer. This was pointed out by the Plenum of the Supreme Court of the Russian Federation in paragraph 4 of the Decree of November 16, 2006 N 52 “On the application by the courts of the legislation governing the liability of employees for damage caused to the employer” (hereinafter - the Resolution of the Plenum of the Supreme Court of the Russian Federation N 52).

In addition, the employer has the right, taking into account specific circumstances, to fully or partially refuse to recover damages from the guilty employee. But this right may be limited by the owner of the property of the organization in cases provided for federal laws, other regulatory legal acts Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of bodies local government, founding documents organizations (Article 240 of the Labor Code of the Russian Federation).

Types of liability

Caused by the employer: full and limited liability.

Upon the occurrence of full liability, the employee is obliged to compensate the direct actual damage caused to the employer in full (part 1 of article 242 of the Labor Code of the Russian Federation). Such liability may be assigned to an employee only in cases expressly determined by the Labor Code of the Russian Federation or other federal laws. For example, Art. 243 of the Labor Code of the Russian Federation establishes that liability in the full amount of the damage caused is assigned to the employee in the following cases:

- if, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in such an amount for damage caused to the employer in the performance of labor duties by the employee;

- shortage of valuables entrusted to him on the basis of a special written agreement or received under a one-time document;

- intentionally causing damage;

- causing damage in a state of alcoholic, narcotic or other toxic intoxication;

- causing damage as a result of the criminal actions of the employee;

- causing damage as a result of an administrative offense;

- disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws;

- causing damage not in the performance of work duties by the employee.

In addition, the head of the organization bears full liability for direct actual damage. Moreover, the owners of the organization can demand compensation for damages by the head in full, regardless of whether his employment contract contains a condition on full liability or not (clause 9 of the Decree of the Plenum of the Armed Forces of the Russian Federation N 52). And in cases provided for by federal laws, the head of the organization also compensates for the losses caused by his guilty actions (Article 277 of the Labor Code of the Russian Federation). In particular, compensation for losses by the manager is provided for by Federal Laws of December 26, 1995 N 208-FZ “On joint-stock companies”, dated 08.02.1998 N 14-FZ “On Limited Liability Companies” and dated 14.11.2002 N 161-FZ “On State and Municipal Unitary Enterprises”.

Full liability may be assigned to the deputy head of the organization and the chief accountant, if it is established by labor contracts concluded with these persons (Article 243 of the Labor Code of the Russian Federation). If the employment contracts do not provide for such liability, then these persons, in the absence of other grounds that give the right to bring them to full liability, are liable only within the limits of their average monthly earnings (clause 10 of Resolution of the Plenum of the Armed Forces of the Russian Federation N 52).

An employer can bring a minor employee to full liability only in cases of causing harm intentionally, in a state of alcoholic, narcotic or other toxic intoxication, as a result of a crime or administrative offense. Reason - part 3 of Art. 242 of the Labor Code of the Russian Federation.

With employees who directly serve or use monetary and commodity values ​​or other property (who have reached the age of 18), the employer may conclude agreements on full liability for the shortage of property entrusted to them. This is stated in Art. 244 of the Labor Code of the Russian Federation.

Currently, written agreements on full individual or collective (team) liability can only be concluded with those employees and for the performance of those types of work that are named in the relevant Lists of positions and work approved by Decree of the Ministry of Labor of Russia dated December 31, 2002 N 85. If such the contract is not concluded, the employee is not liable for the damage caused in full. And, of course, the employee with whom the named contract is concluded compensates for the damage in full only if there is a shortage of property entrusted to him under the contract. In other cases, he is liable for damage in the same way as other employees.

Collective (team) liability may be introduced by the employer when, in the joint performance of employees certain types works related to the values ​​transferred to them, it is impossible to distinguish between the responsibility of each person for causing damage (part 1 of article 245 of the Labor Code of the Russian Federation). To be released from such liability, a member of the team must prove the absence of his guilt (part 3 of article 245 of the Labor Code of the Russian Federation). In the event of a claim for damages in judicial order the degree of guilt of each employee of the collective is determined by the court.

Limited liability consists in the obligation of the employee to compensate for the direct actual damage caused to the employer, but not more than that established by Art. 241 of the Labor Code of the Russian Federation maximum limit, namely the average monthly earnings of an employee.

Compensation procedure

The damage caused is compensated regardless of the fact of bringing the employee to disciplinary, administrative and criminal liability. If the amount of material damage caused does not exceed the average monthly earnings of the guilty employee, then the amount of damage is recovered by order of the employer.

The order must be made no later than one month from the date of the final determination by the employer of the amount of damage caused (part 1 of article 248 of the Labor Code of the Russian Federation). In practice, the employer collects such amounts by deducting from wages employee, subject to the current restrictions overall size deductions under Art. 138 of the Labor Code of the Russian Federation (as a rule, no more than 20% of the employee's monthly salary), calculated from the amount remaining after deducting the amount of the calculated personal income tax. This is stated in paragraph 1 of Art. 99 of the Federal Law of 02.10.2007 N 229-FZ "On Enforcement Proceedings".

In addition, it should be remembered that deductions are not made from payments named in Art. 101 of the said Law.

Example 2. In April 2011, through the fault of Secretary T.A. Korneeva had a broken multifunctional device (scanner, copier and printer in one machine). Strela LLC (employer) paid for repair services in the amount of 3,000 rubles. Average monthly income this employee on the day of the damage exceeds the amount of damage, therefore the head of Strela LLC decided to withhold the corresponding amount from the salary of T.A. Korneeva (her salary is 25,000 rubles). So, the amount of damage caused is subject to deduction from the employee in full - 3000 rubles.

The amount of salary from which the amounts indemnification will be withheld amounted to 21,802 rubles. (25,000 rubles - 25,000 rubles x 13%). And the maximum monthly deduction is 4360 rubles. (21,802 rubles x 20%).

Thus it is the amount of damage in the amount of 3000 RUB. will be collected in full when calculating T.A. Korneeva for April.

The employee has the right to voluntarily compensate for the damage, including by agreement of the parties with an installment payment. This possibility is provided for in Art. 248 of the Labor Code of the Russian Federation and can be provided to an employee with both full and limited liability. In this case, the employee undertakes to compensate for the damage in writing, indicating specific payment terms. Note that it is possible to agree with the employee on compensation for damage only within the limits established by law.

There is another way to compensate for damage with the consent of the employer - this is the transfer by the employee of equivalent property or the correction of damaged property (part 5 of article 248 of the Labor Code of the Russian Federation). A mixed variant of compensation for damages is not prohibited by agreement, both in cash and in kind. That is, an employee can transfer cheaper property, and compensate for the difference in money.

In a judicial proceeding, the amount of compensation for the damage caused is recovered if:

- the employer missed the monthly deadline for issuing an order to recover damages that do not exceed the average monthly earnings of the guilty employee (part 2 of article 248 of the Labor Code of the Russian Federation);

- the employee does not agree to voluntarily compensate for the damage caused in excess of his average monthly earnings (part 2 of article 248 of the Labor Code of the Russian Federation);

- the resigned employee gave an obligation to voluntarily compensate for damage, but refused to fulfill it (part 4 of article 248 of the Labor Code of the Russian Federation);

- an employee who resigned without good reason before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer, the employee did not reimburse the costs of his training (Article 249 of the Labor Code of the Russian Federation);

- the student at the end of the training refused, without starting work, to voluntarily reimburse the expenses incurred by the employer in connection with the apprenticeship (part 2 of article 207 of the Labor Code of the Russian Federation).

In practice, there may be other situations when you have to apply for the recovery of damages to the court. For example, an employee quit before the start of the reimbursement or full withholding of the required amounts. Recall that for disputes about compensation by an employee for damage, a reduced limitation period is applied - one year from the date of its discovery (part 2 of article 392 of the Labor Code of the Russian Federation).

Material liability is the duty of the party employment contract that caused damage (harm) to the other party, compensate it in the amount and in the manner established by law. Liability is an independent type of legal liability.

Material liability under labor law should be distinguished from other measures of material impact, namely: deprivation of the bonus provided for by the wage system, or remuneration based on the results of annual work, reducing the labor participation rate when collective form organization and stimulation of labor, deductions from wages made on the basis of the law.

Conditions for liability

Like any other legal liability, the material liability of the parties to an employment contract can only occur if certain conditions are met, which are specified in Art. 233 of the Labor Code of the Russian Federation.

The conditions for liability are:

• The presence of property damage to the injured party.
• The wrongfulness of the action (inaction) that caused the damage.
• Causal relationship between illegal act(inaction) and property damage.
• Guilt of the violator of the employment contract.

Bringing a party to an employment contract to material liability is possible only if all the above conditions are present at the same time, unless otherwise provided Labor Code Russian Federation or other federal laws.

The parties to an employment contract (employer and employee) are not equal in terms of their economic and other opportunities. In addition, the employer has power-organizational powers in relation to the employee. These factors determine the differences in the liability of the parties to the employment contract.

TYPES OF LIABILITY

Labor legislation provides:

• The liability of the employer to the employee;
• Liability of the employee to the employer.

1. Types of liability of the employee

Depending on the limit of damage recovery allowed by law, the liability of employees is divided into two types:

1. Limited material liability;
2. Complete material liability.

Depending on the subject matter complete Liability can be:

• individual;
• collective (brigade).

Limited Liability of the Employee

Limited liability provides for compensation by the employee for damage caused within predetermined limits. As a rule, such a limit is the average monthly earnings (Article 241 of the Labor Code of the Russian Federation).

The Labor Code of the Russian Federation does not contain a list of cases of damage for which liability is provided within the average monthly salary of an employee, but, as practice shows, the most typical cases are the following:

• damage or destruction through negligence of the property of the employer, materials, products (products), as well as tools, overalls and other items issued for use by the employee;
• shortage of money, loss of an instrument, loss of documents, complete or partial depreciation of documents, payment of a fine due to the fault of the employee.

Full financial responsibility of the employee

The norms of labor law, contributing to the maximum extent to ensuring the safety of the employer's property by compensating the employee for material damage, along with limited liability, provide for a number of cases when the employee guilty of causing damage is obliged to compensate it in full without any restrictions.

Thus, full liability is called because the employee compensates for the damage caused to the employer in full without any limitation by any amount of wages. Such cases are strictly limited and are established only by the Labor Code of the Russian Federation or other federal laws.

In what cases the employee is fully liable

By virtue of Art. 243 of the Labor Code of the Russian Federation, liability in the full amount of damage caused to the employer is assigned to employees in the following cases:

1. When, in accordance with the Labor Code of the Russian Federation and other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;
2. Lack of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
3. Intentional infliction of damage by an employee;
4. Causing damage by an employee in a state of alcoholic, narcotic or other toxic intoxication;
5. Causing damage as a result of the employee's criminal actions established by a court verdict;
6. Damage caused by an employee as a result of an administrative offense, if such is established by the relevant government agency;
7. Disclosure of information constituting a legally protected state, official, commercial or other secret, in cases provided for by federal laws;
8. Causing damage not in the performance of work duties by the employee.

Full collective (team) liability

Collective (team) liability is established when employees jointly perform certain types of work. Collective liability for causing damage is introduced if it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full (Article 245 of the Labor Code of the Russian Federation). A written agreement on collective liability is concluded between the employer and all members of the team (team).

The list of works in the performance of which collective liability may be introduced, the conditions for its application and standard contract approved by the Decree of the Ministry of Labor and social development RF dated December 31, 2002 N 85 “On approval of the lists of positions and works substituted or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) liability, as well as standard forms of agreements on full liability”.

The amounts of damages are distributed among the members of the team (team) in a shared manner, depending on the time worked (for example, one employee was on vacation or was sick), on the degree of guilt of each in proportion to their tariff rates. To be released from liability, a member of the team (team) must prove the absence of guilt.

In case of voluntary compensation for damage, the degree of guilt of each member of the team is determined by agreement between all members of the team and the employer. When recovering damages in court, the degree of guilt of each member of the team is determined by the court (Article 245 of the Labor Code of the Russian Federation).

Full individual liability

The full individual liability of the employee is established by the contract, which is concluded with the employer. In accordance with the agreement on full individual liability, the employee assumes full liability for the shortage of property entrusted to him by the employer, as well as for damage incurred by the employer as a result of compensation for damage to other persons.

At present, there is a standard form of an agreement on full individual liability, approved by the said Decree of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 N 85.

2. Liability of the employer

The liability of the employer to the employee is an independent type of legal liability in labor law. The basis, conditions, as well as the amount of the employer's liability to the employee are defined by the Labor Code of the Russian Federation in Articles 232 and 233.

Cases of liability of the employer to the employee

Cases of the employer's liability to the employee are defined in articles 234-237 of the Labor Code of the Russian Federation, according to which the employer is liable:

1. As a result of illegal deprivation of the employee of the opportunity to work (Article 234 of the Labor Code of the Russian Federation);

The norms of the Labor Code of the Russian Federation do not establish any special definition of moral harm caused to a citizen, different from that established in civil legislation (Articles 151, 1099 of the Civil Code of the Russian Federation). Physical suffering is expressed in the form of pain, for example, in an accident at work, associated with a violation of safety standards, which led to the injury of a person. Moral suffering consists in the negative experience of a person experiencing fear, shame, humiliation, etc.

Article 237 in conjunction with Art. 233 of the Labor Code of the Russian Federation provides for compensation for moral harm caused to an employee by any guilty misconduct (action or inaction) of the employer, regardless of what rights of the employee are violated by these actions (inaction) - property or non-property. Consequently, the basis of the employer's liability for causing moral harm to an employee is the presence of moral harm, that is, physical or moral suffering.

When submitting a claim for compensation for moral damage in the cases specified in the law, the plaintiff is obliged to prove the fact of its infliction and justify the amount of the specific amount of compensation for moral damage indicated by him in the statement of claim. The issue of compensation for moral damage and its amount is decided by the court, regardless of the property damage subject to compensation.

Applied to labor relations the degree of moral and physical suffering is assessed by the court, taking into account the actual circumstances of causing moral harm, the individual characteristics of the employee and other specific circumstances indicating the severity of the suffering suffered by him.

Liability of employees- this is the legal obligation of employees to compensate in full or in part the direct actual damage caused by their illegal and guilty actions to the employer for whom they work. Liability is applied regardless of bringing the employee to disciplinary, administrative or criminal liability. Liability should be distinguished from such measures of material influence as the deprivation or reduction of bonuses, remuneration based on the results of work for the year, etc.

Terms of liability

Liability of employees occurs in the presence of the following conditions: 1) the presence of direct actual damage, that is, the loss, deterioration or decrease in the value of property, the need to incur costs for the restoration, acquisition of property or other valuables, or excessive payments. At the same time, lost income, that is, those amounts by which the property of the tenant would have increased if the debtor had not committed an offense, are not taken into account; 2) wrongfulness of the behavior of the employee who caused the damage. It is expressed in the fact that the employee does not perform or improperly performs the labor duties assigned to him by regulations, internal labor regulations, instructions and other mandatory rules, orders and orders of the employer; 3) the existence of a causal relationship between the behavior of the employee and the damage caused; 4) the presence of guilt in the behavior of the employee in the form of intent and negligence.

It is unacceptable to lay liability on an employee for harm that belongs to the category of normal production risk (experimental production, the introduction of new technologies, etc.)

Types of liability (full and limited)

Article 402 of the Labor Code establishes that employees, as a rule, bear full liability for damage caused through their fault to the employer. legislation, collective agreements, agreements may establish limited material liability of employees for damage caused to the employer through their fault, with the exception of cases provided for in Article 404 of the Labor Code.

Limited liability means that the employee is obliged to compensate for the damage in the amount of his actual damage, but the amount of compensation cannot exceed the average monthly salary. Limited liability is currently provided for in accordance with Article 403 of the Labor Code in only two cases:

employees - in the amount of damage caused through their fault, but not more than their average monthly earnings for damage or destruction through negligence of materials, semi-finished products, products (products), including during their manufacture, as well as for damage or destruction through negligence of instruments, measuring devices, special clothing and other items issued by the employer to the employee for use;

heads of organizations, their deputies, heads structural divisions and their deputies - in the amount of the damage caused through their fault, but not more than three times the average monthly salary, if the damage was caused by incorrect accounting and storage of material or monetary values, failure to take the necessary measures to prevent downtime or release of low-quality products. Such responsibility is borne by the heads of their deputies of any structural units provided for by the charter (regulations) of the enterprise.

The average monthly salary is determined based on the calculation of the last two calendar months of work of the employee who caused the damage. If an employee has worked for an employer for less than two months, then his average earnings are determined based on the time actually worked.

Full liability.

Full liability- this is liability in the amount of the damage caused without limiting it to any limit. Full liability arises if no exemptions are made from general rule on full liability. In addition, full liability in cases provided for in Article 404 of the Labor Code.

Most often, full liability occurs when a written agreement on full liability is concluded between the employee and the employer.

Written agreements on full liability can be concluded by the employer with employees who have reached the age of 18, occupy positions or perform work directly related to the storage, processing, sale (vacation), transportation or use in the production process of the values ​​transferred to them. An indicative list of such positions and works, as well as an indicative agreement on full individual liability are approved by the Government of the Republic of Belarus.

Full individual material liability can be established under the following conditions: 1) commodity-money values ​​are transferred to the employee under the report, that is, he is personally responsible for their safety and sale (small retail workers, storekeepers, cashiers. Bartenders, freight forwarders, etc. .); 2) conditions for storage, sale and processing are created for the employee material assets(isolated premises, etc. 3) the employee independently reports to the accounting department for the values ​​entrusted to him.

A special form of full liability is collective (team) liability, which is introduced when employees jointly perform work related to the storage, processing, sale (vacation), transportation of valuables transferred to them, when it is impossible to distinguish between the liability of each employee and conclude an agreement with him on individual liability

Collective liability is introduced if the following conditions are present simultaneously: 1) work is performed jointly; 2) it is impossible to distinguish between the liability of each employee and conclude an agreement with him on full individual liability; 3) the employer has created conditions for employees to work normally and ensure the safety of the valuables transferred to them,

4) the employee (team member) has reached the age of 18 years.

A written contract on full liability provides a list of the main duties of the employee and the employer. The employee undertakes to take care of the material assets transferred to him for storage or for other purposes and take measures to prevent damage, promptly inform the employer of all circumstances that threaten the safety of the values ​​entrusted to him, make proposals to the employer for the reconstruction and repair of storage facilities and sites in order to improve their adaptability to the storage of material values, to keep records. Compile and submit, in accordance with the established procedure, commodity-money and other reports on the movement and balances of valuables. In turn, the employer undertakes to: create the conditions necessary for the employee to work normally and ensure the safety of the property entrusted to him, to acquaint the employee with the current legislation on the liability of employees, as well as the current instructions, standards and rules for storage, acceptance, processing, sale (vacation) , transportation or use in the production process of the values ​​transferred to him, to conduct an inventory and write-off of material assets in the prescribed manner.

The team assumes full financial responsibility for all inventory items (goods, containers, materials) transferred to it under the report. A written contract is drawn up in two copies, one of which is with the employer, and the second with the employee. The contract covers the entire time of work with material assets entrusted to employees.

The basis for bringing employees or members of the team to liability is material damage caused through their fault by not ensuring the safety of property and other valuables (shortage, damage) transferred to them for storage, sale or for other purposes and confirmed by the inventory sheet.

Compensable damage caused by the brigade is distributed among its members in proportion to the time actually worked for the period from the last inventory to the day the damage was discovered.

The concept and features of liability under labor law

One of the types of liability in labor law is material liability, the subjects of which may be the employee and the employer. The material liability of the employee is one of the means of protecting property and represents the legal obligation of the employee to compensate for the damage caused to him. An employment contract or agreements concluded in writing attached to it, the liability of the parties to this contract may be specified. The contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than provided for by the Labor Code or other federal laws (Article 232 of the Labor Code). The material liability of the parties to an employment contract arises for damage caused by one party to the other party as a result of guilty unlawful behavior (action or inaction), unless otherwise provided by the Labor Code or other federal laws. Each party to the employment contract is obliged to prove the amount of damage caused to it.

The employer, in addition to bringing the employee to liability, has the right to apply measures to him at the same time disciplinary responsibility and forfeit the right to receive bonus payments.

Labor legislation provides for both individual and collective liability of employees.

By regulating the compensation for material damage, labor legislation (Articles 238 - 250 of the Labor Code) pursues the following goals:

a) full or partial compensation for damages;

b) providing educational and disciplinary impact on both the employee and the team;

c) protection of the employee's wages from illegal deductions.

An employee, with the consent of the employer, may voluntarily compensate for the damage caused to the employer in whole or in part, transfer property of equal value to compensate for the damage, or repair the damaged property.

Labor legislation establishes the conditions for the onset of liability, which include:

a) The presence of direct actual damage (Article 238 of the Labor Code). Direct actual damage is a real decrease in the employer's cash property or deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition or restoration of property (Article 238 of the Labor Code).

The exceptions are cases (Article 277 of the Labor Code), when the calculation of losses is carried out in accordance with the norms provided for by civil law, i.e. taking into account lost income, if the damage was caused by illegal actions of the head of the organization;

b) Illegal behavior of the employee - non-fulfillment of labor duties established by law, internal labor regulations, orders and instructions (written) of the employer. Damage resulting from force majeure, normal economic risk, extreme necessity or necessary defense, as well as the employer’s failure to ensure proper storage conditions for property entrusted to the employee (Article 239 of the Labor Code) cannot be attributed to the employee.

c) The employee's culpability in causing damage. Guilt expresses the mental attitude of a person to the unlawful act committed by him and the result causally caused by him. The legislation provides for two forms of guilt: intent (direct or indirect), negligence (frivolity or negligence).

The burden of proving the employee's guilt lies with the employer.

d) Existence of a causal relationship between the act of the worker and the actual damage. The employer is obliged to establish as a result of whose specific actions (inaction) caused material damage or the degree of involvement of each guilty worker.

Thus, material liability is the legal obligation of the employee to compensate, within the limits and in the manner established by labor legislation, the direct actual damage caused by his guilty illegal act to the property of the employer.

Types of liability

Labor legislation provides for two types of liability: full and limited.

Full liability is an exception to the general rule for the application of material liability and may be applied in cases expressly provided for by federal law.

The limitation of liability is related to salary- the size of the average monthly salary of an employee (Article 241 of the Labor Code) on the day the damage was discovered, based on the calculation for the last 12 months. Limited liability is recognized by labor legislation as the main type of material liability.

Labor legislation defines the cases of the onset of the full liability of the employee, which are affected by the peculiarity of labor duties, the specifics of work and other signs. The conditions for full liability are:

The employee, in accordance with the law and labor duties, is liable in full (Article 243 of the Labor Code).

1. In case of shortage of valuables entrusted to the employee on the basis of a special written agreement due to the specifics of the work performed or their receipt under a one-time document (Articles 243, 244, 245 of the Labor Code). In this case, the liability of the employee may come under the following conditions: 1) reaching the age of 18; 2) holding a position or performing work specified in a special list; 3) if there is a written contract.

An agreement on full liability can be concluded only with employees who are directly related to the storage, processing, sale (vacation), transportation or use in the production process of material assets belonging to the employer. The contract on full liability will be additional to the employment contract. In its absence, the full liability of the employee cannot take place.

The full liability of the employee also arises for the lack of valuables received by the employee under one-time documents (power of attorney), when he is involved in the urgent receipt, delivery, transfer of material values.

2. Deliberate infliction of damage (Article 243). The employer must prove the intentional infliction of damage by the employee. Otherwise, the full liability of the employee is not allowed.

3. Causing damage in a state of alcoholic, narcotic or toxic intoxication (Article 243 of the Labor Code). At the same time, the form of guilt, as well as the specialty or profession of the employee, do not matter. The state of intoxication must be documented, i.e., an appropriate certificate from a medical institution. If the employee refuses to be examined, then the fact of intoxication can be confirmed by witness testimony, timely drawing up of an act at the place of work on the employee being in such a state.

4. Causing damage as a result of criminal acts established by a court verdict (Article 243 of the Labor Code). The legislator emphasizes that it is necessary to have not only the very fact of initiating a criminal case, but also a court verdict, where the criminal nature of the employee's actions will be proven. The release of an employee from criminal punishment under an amnesty act does not relieve him of full liability, since the criminal nature of his actions has been established by a court verdict. In cases of termination of a criminal case at the stage of preliminary investigation, as well as a verdict of not guilty, full liability is not allowed.

5. Causing damage as a result of an administrative offense established by a state body (Article 243 of the Labor Code). An administrative offense is an unlawful, guilty action (inaction) of an individual or legal entity, for which the Code of the Russian Federation on Administrative Offenses or the laws of the constituent entities of the Russian Federation provides for administrative responsibility. In this case, the employer will have the right to bring employees to full liability in the event of a court decision or a decision by the federal labor inspectorate.

6. There has been a disclosure of information constituting a state or other secret protected by law (Article 243 of the Labor Code). An employment contract (Article 57 of the Labor Code) may provide for conditions on non-disclosure of legally protected secrets (state, official, commercial and other).

7. The damage was caused not in the performance of labor duties by the employee (Article 243 of the Labor Code). The employer must prove that the employee did not perform his job duties at the time of the damage and that his behavior was contrary to the interests of the employer.

The concept and procedure for determining the amount of damage

The current labor legislation provides for the possibility of compensation for damage caused to the employer in several ways. This may be: 1) voluntary compensation for damage by the employee himself; 2) compensation for damage by order (order) of the employer; 3) compensation for damage in a judicial proceeding.

Determination of the amount of damage caused can be done in two ways - in general and in a special order.

The general procedure provides for two ways to determine the amount of damage: 1) by actual losses based on market prices in force in the area on the day the damage was caused; 2) based on the value of the property according to the data accounting taking into account the degree of wear and tear of this property. Obviously, the second method will be applied in the case when, taking into account market prices, the amount of damage will be lower than the value of the property according to accounting data. Accounting is an ordered system for collecting, registering and summarizing information in monetary terms about the property, obligations of organizations and their movement through continuous, continuous and documentary accounting of all business transactions. The objects of accounting are the property of organizations, their obligations and business transactions carried out by organizations in the course of their activities. When using accounting data, the amount of damage is documented.

A special procedure applies when:

1) damage to the employer was caused by theft, deliberate damage, shortage or loss of certain types of property and other valuables;

2) the actual amount of damage caused exceeds its nominal amount.

3. Liability of the employer to the employee

Labor legislation protects the interests of employees in the same way as employers in the area of ​​liability. The head of the organization is fully liable to the employee and the organization, regardless of whether an entry about it is included in his employment contract or not.

In the legal literature, there are three groups of cases of the employer's liability to the employee, depending on the violation of the employee's labor rights:

1. Compensation for property damage resulting from violation by the employer of the employee's right to work.

2. Compensation for damage resulting from violation of the employee's right to health protection, to healthy and safe working conditions in connection with the infliction of labor injury or occupational disease on him.

3. compensation to the employee for damage caused by the employer's violation of other rights of the employee in an employment relationship, for example, the right to protect his personal property, in connection with the failure to ensure the safety of the employee's personal belongings during work.

The employer bears material liability to the employee, which is of a property nature (Chapter 38 of the Labor Code) in the following cases:

a) Illegal deprivation of the employee of the opportunity to work (Article 234 of the Labor Code), if the employee did not receive earnings as a result of:

illegal removal of an employee from work, his dismissal or transfer to another job;

non-execution or untimely execution by the employer of the decision of the review body labor disputes on the reinstatement of the employee in the previous job;

issuance delays work book, introducing into it an incorrect or inappropriate wording of the reason for the dismissal of an employee;

invited in the order of transfer from another employer, as well as in cases of untimely conclusion of an employment contract due to the fault of the employer. If, as a result of the refusal or untimely conclusion of an employment contract, the employee has a forced absenteeism, then the employer is obliged to compensate him for material damage in relation to the rules that are established for paying for the forced absenteeism of an illegally dismissed person;

other cases of violation by the employer labor law.

b) Damage caused by the employer to the property of the employee (Article 235 of the Labor Code). The employee's application for compensation for damage is sent by him to the employer, who is obliged to consider this application and the corresponding decision within ten days from the date of its receipt. If the employee does not agree with the decision of the employer or has not received a response within the prescribed period, the employee has the right to file a lawsuit in court. With the consent of the employee, the damage can be compensated in kind.

c) Delays in the payment of wages to an employee (Article 236 of the Labor Code). This provision is new for Russian labor legislation. Violation of the deadline for payment of wages, vacation pay, dismissal payments and other payments due to the employee entails the obligation of the employer to pay (except for these payments) monetary compensation(interest) in the amount not lower than the rate of 1/300 of the refinancing rate of the Central Bank of the Russian Federation effective at that time from the amounts not paid on time for each day of delay after the established payment period.

d) Compensation for moral damage caused to an employee (Article 237 of the Labor Code). This basis of the employer's liability is also new for the Russian labor legislation. When determining the amount of compensation for non-pecuniary damage, the court takes into account the degree of guilt of the offender and other noteworthy circumstances, takes into account the degree of physical and moral suffering associated with individual features a person who has been harmed (see part 2 of article 151 of the Civil Code).

In the event of a dispute, the fact of causing moral damage to an employee and the amount of its compensation are determined by the court, regardless of the property damage subject to compensation.

The concept of substantive law

Substantive law is represented by a set of norms of the legal system that directly regulate social relations and a set of legal branches in which the main emphasis is on the establishment of subjective duties and rights.

Remark 1

The terminology of substantive law is used in jurisprudence in the form of a concept that denotes such rules of law through which the state influences relations in society through direct, direct legal regulation.

The norms of substantive law fixed the forms of ownership, legal status persons and property, established the legal status, limits and grounds for legal liability, etc.

Substantive law has an inextricable link with procedural law. They are considered in the form of legal categories expressing the unity of the two sides of the legal settlement:

• direct legal regulation of relations in society;
• procedural forms of protection of these relations in court.

Types of substantive law

Within the framework of the legal system, a distinction is made between the branches of procedural and substantive law.

The branches of procedural law are represented by branches that have a managerial, organizational and procedural nature, which regulate the procedure for the implementation of legal obligations and subjective rights, the resolution of legal conflicts, mainly in the field of justice.

The norms of procedural law regulated the procedure for the use of the norms of substantive law, are derived from them. By means of procedural norms, the circle of subjects participating in the procession is defined, their duties and rights are named, the deadlines for the implementation of the procedural measures provided for by the legislator are established. The branches of procedural law include:

• civil procedural law;
• criminal procedure law;
• arbitration procedural law.

Remark 2

Branches of substantive law are represented by norms that fix (materialize) the general limits (principles) of acceptable or unacceptable behavior of legal entities.

Branches of substantive law are formed in accordance with substantive legal norms, which in essence are rules of conduct that formulate the composition of a legal relationship that characterizes subjective duties and rights, and establish the limits of legal regulation. The branches of substantive law include:

• civil law;
• criminal law;
• constitutional law;
• labor law, etc.

The question of the number of legal branches is resolved applicable to a certain national system rights in different ways.

Taking into account the relative objectivity of the division of social relations into varieties, it seems possible to single out the following main material legal branches:

Constitutional law. The subject of this legal branch is the relations that arise regarding the consolidation of the foundations of the constitutional order, the formation of state bodies, the strengthening of natural inalienable freedoms and human rights, the allocation legal status citizens, etc. The dominant method is the constituent-fixing method. The main sources of the constitutional law of the Russian Federation are:

• the Constitution of the Russian Federation;
• Federal Law of the Russian Federation "On Citizenship of the Russian Federation", "On public associations" etc.

1. Administrative law. The subject of this industry is social relations that develop in the process of implementation government controlled, that is, in connection with the functioning and organization of the system of the executive branch of government at all levels of government.

2. Financial right. The subject is banking operations, monetary relations, collection of fees and taxes, budgeting, etc. Its main method is imperative.
3. Criminal law. The subject is social relations that develop in connection with the implementation of crimes by citizens. His method is imperative. The main source is the Criminal Code of the Russian Federation.
4. Civil law. The subject is property and personal non-property relations, which are based on equality, property independence and autonomy of the will of their participants. The predominant method is dispositive. The main source is the Civil Code of the Russian Federation.
5. Family law. The subject is personal non-property and property relations associated with them, which arise in connection with the state of kinship, the conclusion and termination of marital relations, etc. The main method is dispositive. The main source is the Family Code of the Russian Federation.

Special branches of substantive law

In addition to these legal branches, some scholars have singled out mining, land, military, prosecutorial-supervisory, economic, trade, natural resource, commercial, environmental, informational, penitentiary law as independent ones. But, most lawyers believe that it is appropriate to limit the above basic legal branches, especially since all the rules that exist in the legal system can certainly be attributed to one of the main legal branches.

International law occupied a special place in the legal system. It can hardly be called a branch of national law, since it regulates a group of relations that develop between different states. The specificity and scope of the rules that apply to international law, allows not to classify them as a single branch of national law, but to combine and separate them into a special legal system that is not included in the system of national law.