Jazz art of the 20th century. Jazz music, its features and history of development

The state civil service is subdivided into the federal state civil service and the state civil service of the subject of the Russian Federation.

Federal Law No. 79-FZ of July 27, 2004 "On the State Civil Service of the Russian Federation"

1) public positions of the Russian Federation and public positions of subjects of the Russian Federation - positions established by the Constitution of the Russian Federation, federal laws for the direct execution of the powers of federal government agencies, and positions established by the constitutions (charters), laws 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;

2) representative of the employer - the head of a state body, a person holding a public position, or a representative of the said head or a person exercising the powers of the employer on behalf of the Russian Federation or a constituent entity of the Russian Federation.

The state civil service of the Russian Federation (hereinafter also referred to as the civil service) is a type of public service, which is a professional service activity of citizens of the Russian Federation (hereinafter referred to as citizens) in positions of the state civil service of the Russian Federation (hereinafter also referred to as civil service positions) to ensure the execution of the powers of federal state bodies, state bodies of the constituent entities of the Russian Federation, persons holding public positions of the Russian Federation, and persons holding public positions of the constituent entities of the Russian Federation (including being in the personnel reserve and other cases).

Article 9. Classification of civil service positions

1. Civil service positions are divided into categories and groups.

2. Civil service positions are divided into the following categories:

1) leaders;

2) assistants (advisers);

3) specialists;

4) providing specialists.

3. Civil service positions are divided into the following groups:

1) the highest positions of the civil service;

2) the main positions of the civil service;

3) leading positions in the civil service;

4) senior civil service positions;

5) junior civil service positions.

Article 10

1. The positions of the federal state civil service, classified by state bodies, categories, groups, as well as by other characteristics, make up the lists of positions of the federal state civil service, which are the relevant sections of the Register of positions of the federal state civil service. The register of positions of the federal state civil service is approved by decree of the President of the Russian Federation.

Article 11

1. Class ranks of the civil service are assigned to civil servants in accordance with the civil service position to be occupied within the group of civil service positions.

2. Civil servants who fill positions in the civil service without limiting the term of office are assigned class ranks based on the results of a qualification exam.

Article 12. Qualification requirements for civil service positions

1. Qualification requirements for civil service positions include requirements for the level of professional education, length of service in the civil service (public service of other types) or length of service (experience) in the specialty, professional knowledge and skills necessary for the performance official duties.

2. Qualification requirements for civil service positions are established in accordance with the categories and groups of civil service positions.

civil servant- a citizen of the Russian Federation who has assumed obligations for the passage of civil service. A civil servant carries out professional service activities in the positions of the civil service in accordance with act of appointment and co service contract and receives financial support at the expense of the federal budget or the budget of a constituent entity of the Russian Federation.

Article 21. The right to enter the civil service

1. Citizens of the Russian Federation who have reached the age of 18, who speak the state language of the Russian Federation and meet the qualification requirements established by this Federal Law, have the right to enter the civil service.

Article 22

1. The entry of a citizen into the civil service to fill a position in the civil service or the replacement by a civil servant of another position in the civil service is carried out according to the results of the competition unless otherwise provided by this article. The competition is evaluation professional level applicants for civil service positions, their compliance with the established qualification requirements to the civil service.

2. The competition is not held:

1) upon appointment to positions of the civil service of the categories "heads" and "assistants (advisers)" substituted for a certain term of office;

2) upon appointment to civil service positions of the category "leaders", the appointment and dismissal of which are carried out by the President of the Russian Federation or the Government of the Russian Federation;

3) when concluding a fixed-term service contract;

4) upon appointment of a civil servant to another civil service position in the cases provided for by Part 2 of Article 28 and Parts 1, 2 and 3 of Article 31 of this Federal Law;

5) when appointing a civil servant (citizen) to the position of the civil service, who is in the personnel reserve, formed on a competitive basis.

3. The competition may not be held when appointing to certain positions of the civil service, the performance of official duties for which is associated with the use of information constituting a state secret, according to the list of positions approved by the regulatory act of the state body.

4. By decision of the representative of the employer, the competition may not be held when appointing to civil service positions related to the group of junior civil service positions.

5. An applicant for filling a position in the civil service may be denied admission to participate in the competition due to non-compliance with the qualification requirements for a vacant position in the civil service, as well as in connection with the restrictions established by this Federal Law for entering the civil service and its passage.

6. An applicant for a civil service position who is not allowed to participate in the competition has the right to appeal this decision in accordance with this Federal Law.

7. To conduct a competition for filling a vacant position in the civil service, a competition commission is formed by a legal act of the relevant state body.

service contract- an agreement between a representative of the employer and a citizen entering the civil service, or a civil servant on the passage of the civil service and the replacement of a civil service position. The service contract establishes the rights and obligations of the parties.

To fill a civil service position, a representative of the employer may conclude with a civil servant:

1) service contract for an indefinite period;

2) fixed-term service contract.

2. A fixed-term service contract for a period of one to five years is concluded, unless another period is established by this Federal Law.

3. A fixed-term service contract is concluded in cases where relations related to the civil service cannot be established for an indefinite period, taking into account the category of the civil service position to be filled or the conditions for performing the civil service, unless otherwise provided by this Federal Law and other federal laws.

Age limit for civil service 60 years. For a civil servant who has reached the age limit for being in the civil service, the term of civil service, with his consent, may be extended by decision of the representative of the employer, but not more than until he reaches the age 65 years old, and to a civil servant who fills a civil service position of the "assistant (adviser)" category, established to assist a person holding a public position - until the end of the term of office of the said person.

In the act of the state body on appointment to the position of the civil service and the service contract, the parties may provide for a test of a civil servant in order to verify his compliance with the civil service position to be occupied. The test period is set by the duration three months to one year.

Article 33

1. The general grounds for termination of a service contract, dismissal from a substituted position in the civil service and dismissal from the civil service are:

1) agreement of the parties to the service contract (Article 34 of this Federal Law);

2) expiration of a fixed-term service contract (Article 35 of this Federal Law);

3) termination of a service contract at the initiative of a civil servant (Article 36 of this Federal Law);

4) termination of the service contract at the initiative of the representative of the employer (Article 37 of this Federal Law);

5) transfer of a civil servant at his request or with his consent to another state body or to a public service of a different type;

6) the refusal of a civil servant from a civil service position proposed for replacement or from professional retraining or advanced training in connection with a reduction in civil service positions, as well as if he is not provided with another civil service position in these cases (Part 4 of Article 31 of this Federal Law);

7) refusal of a civil servant from a civil service position proposed for filling in due to a change in the essential terms of a service contract (Article 29 of this Federal Law);

8) refusal of a civil servant to be transferred to another civil service position for health reasons in accordance with a medical report or the absence of such a position in the same state body (parts 2 and 3 of Article 28 of this Federal Law);

9) refusal of a civil servant to be transferred to another locality together with a state body;

10) circumstances beyond the control of the parties to the service contract (Article 39 of this Federal Law);

11) violation of the mandatory rules established by this Federal Law or other federal laws for concluding a service contract, if this violation excludes the possibility of filling a civil service position (Article 40 of this Federal Law);

12) withdrawal of a civil servant from the citizenship of the Russian Federation (Article 41 of this Federal Law);

13) non-compliance with restrictions and failure to fulfill obligations established by this Federal Law and other federal laws;

14) violation of the prohibitions related to the civil service, provided for in Article 17 of this Federal Law;

15) refusal of a civil servant to replace the former position of the civil service with an unsatisfactory test result (part 7 of article 27 of this Federal Law).

2. Termination of a service contract, dismissal from a substituted position in the civil service and dismissal from the civil service are formalized by a legal act of a state body.

NOU VPO "INSTITUTE OF MANAGEMENT"

Yaroslavl branch

Faculty of Law

Specialty Jurisprudence»

Specialization (direction, profile) 030501 Civil Law

FINAL QUALIFICATION WORK

Completed by student Rachkov E.A.

6 course, group 61 SW-3

scientific adviser

Candidate of Law, Ushkevich Galina Ivanovna

THE TASK

For graduate work

Rachkov Evgeny Alexandrovich

1. The topic of the work is approved by the order of the institute

Legal regulation of the labor of civil servants

2. Deadline for student submission of completed work

Initial data for work:

The Constitution of the Russian Federation, Scientific works, educational literature, the Labor Code of the Russian Federation, the Federal Law "On the Fundamentals of the Public Service of the Russian Federation", etc.

formulation of basic theoretical concepts public service, study of the essence, content, relationship, determination of the typology and sectoral affiliation of legal relations in the field of public civil service; identifying the features of the method and principles of legal regulation of labor in the Russian state civil service; characterization of the system of legal norms regulating the Russian state civil service, determination of its place in the system of Russian law and correlation with the systems of administrative-legal and labor-law regulation; study of problems and development of proposals for improving the legislation on the state civil service of the constituent entities of the Russian Federation.

5. List of annexes to the WRC

Job issue date

Scientific adviser: Ushkevich G.I.

The task was accepted for execution by Rachkov E.A.

CALENDAR PLAN

Completion of the final qualifying work

№ p / p Name of stages Deadline Completion mark 1 Drawing up a work plan 03/01/2014 completed 1.1 Selection and study of literature 03/10/2014 completed 1.2 Coordination of the plan with the supervisor 03/11/2014 completed 2 Development of the theoretical foundations of the problems. Development and submission for verification of Chapter 131.03.2014 completed 2.1 Selection and processing of the necessary theoretical information 17.03.2014 completed 2.2 Submission of Chapter 1 for verification 03.25.2014 completed 2.3 Elimination of deficiencies in Chapter 131.03.2014 completed Chapter 221.04.2014 completed 3.1 Sampling, grouping and analysis of actual data06.04.2014 completed 3.2 Submission of Chapter 2 for review April 16, 2014 completed 3.3 Elimination of deficiencies in Chapter 221.04.2014 completed d.completed4.1Analysis of the views of leading experts on the problems of improvement25.04.2014 completed4.2Development of specific proposals for improvement30.04.2014completed4.3Submission of chapter 3 for review05.05.2014completed4.4 Elimination of deficiencies in chapter 311.05.2014completed5Justification and approval of the conclusions and proposals with the supervisor May 21, 2014 completed6 Submission for verification p work in general 05/24/2014 completed 7 Elimination of shortcomings in the content and design of the work as a whole 05/26/2014 completed 8 Development of abstracts and handouts for the defense 05/27/2014 completed

Graduate student Rachkov E.A.

Scientific adviser Ushkevich G.I.

INTRODUCTION

1. STATE CIVIL SERVICE IN THE SYSTEM OF PUBLIC ADMINISTRATION

1.1 State civil service in the system public organization labor

1.2 Cooperation and division of labor in the civil service: legal problems official organization

2. LEGAL RELATIONS IN THE SPHERE OF STATE CIVIL SERVICE

2.1 "Internal" and "external" relations of the civil service

2.2 Service employment relationship

3. PROBLEMS OF LEGISLATION ON THE CIVIL SERVICE OF THE SUBJECTS OF THE RUSSIAN FEDERATION

CONCLUSION

BIBLIOGRAPHY

INTRODUCTION

Relevance of the topic.For modern Russia, one of the most important tasks is to build an effective state, to overcome serious shortcomings in the organization and functioning of the system of state authorities. The solution of this problem requires the modernization of the civil service, which should become open, competitive and prestigious, focused on effective activities to ensure the execution of the powers of state bodies, the provision of public services, and actively interact with civil society institutions. It is the state civil service that is called upon to implement the policy of the state in the field of economy, social development, culture, education.

The role of the state civil service especially increases in the conditions of the financial and economic crisis, when the normal functioning of the market economy, the preservation of social stability in society, and the provision of and protecting the legitimate rights and interests of citizens.

The civil service reform and its legal regulation have not yet yielded the expected results. In the policy documents of the country's top political leadership, the civil service is sharply criticized for its inefficiency, bureaucracy, corruption, closeness, inability to engage in dialogue with civil society, to promote the development of institutions of an innovative economy and democracy.

Today, the civil service is moving to a new stage of reform and development, during which it is necessary to solve no less important tasks related to the formation of the civil service system as an integral state-legal mechanism, the creation of a civil service management system, the introduction of effective technologies and modern methods in the civil service personnel work, increasing the efficiency of the civil service and the effectiveness of the professional performance of employees.

Under these conditions, the problems of improving the legal regulation and organization of the state civil service are of particular importance. AT scientific literature it is rightly noted that there is a long overdue need for both a serious scientific analysis of the basic norms of the current legislation and the main directions for reforming and developing the state civil service, and for developing the fundamental foundations of the theory of its legal regulation.

aimresearch is the formulation, research and solution at the scientific level of the most relevant theoretical and practical problems of legal regulation of public civil servants in the Russian Federation.

Achieving the goal of the study involves solving the following tasks:

formulating the relevant basic theoretical concepts of the public service, public service organization of labor, positions of the public civil service;

study of the essence, content, relationship, determination of the typology and sectoral affiliation of legal relations in the field of public civil service;

identifying the features of the method and principles of legal regulation of labor in the Russian state civil service;

characterization of the system of legal norms regulating the Russian state civil service, determination of its place in the system of Russian law and correlation with the systems of administrative-legal and labor-law regulation;

study of problems and development of proposals for improving the legislation on the state civil service of the constituent entities of the Russian Federation.

Object of studyfavors the complex public relations, emerging in the field of organization of the state civil service of the Russian Federation, the implementation of professional official activities of state civil servants, establishment. and the application of the conditions of their work (service) and social protection.

Subject of researchare normative legal acts, law enforcement (including judicial) practice on issues of the Russian state civil service.

Theoretical basis and regulatory framework.The theoretical basis was the scientific works of specialists in the field of legal theory. Sources on civil law, public administration theory, labor economics, sociology, political science are used.

1. STATE CIVIL SERVICE IN THE SYSTEM OF PUBLIC ADMINISTRATION

.1 State civil service in the system of social organization of labor

It is not customary to study the state civil service as a phenomenon belonging to the system of social organization of labor. In labor economics and the science of labor law, the social organization of labor is considered as a socio-economic category, an integral part of the economic mechanism, covering the spheres of social production and distribution, functioning according to the laws of economic development and, at the same time, subject to external, state regulation. In political science, sociology, and the science of administrative law, the civil service is analyzed as an institution of public administration, under the influence of which there are various spheres of social life, including the spheres of the economy, social organization of labor.

In both cases, the public service appears, as it were, outside the social organization of labor, acting in relation to it only as an external, organizing, managing principle.

In the study of the social and labor aspects of the public service, it will be legitimate to proceed from a different relationship between them: to consider the public service in the form of professional labor activity carried out as part of a public labor organization.

In a broad sense, the social organization of labor is understood as a system of the use of labor in society, determined by economic, political, social factors and regulated by law. As social category, the social organization of labor includes a system of multi-level social relations between people in the process of common labor, arising from the interaction between certain areas of application of labor, individual industries and types of labor activity, between various social and labor groups and individual subjects of labor application. These relations are very wide in spectrum, but they are united by their connection with labor - they develop about its conditions, organization, management of labor activity, appropriation and redistribution of the results of labor.

Thus, since the social organization of labor covers all spheres of social life - not only production and economic, socio-cultural, etc., but also political and administrative - then the public service, considered as productive, socially useful work in the field of public administration , is also an integral part of the general system of social organization of labor.

The social organization of labor is a concrete historical category, and its structure, composition of components, the nature and content of both internal and external social ties between them are determined by the existing economic, social, and political conditions.

In the socio-economic model of socialism, based on the monopoly domination of state property, the social organization of labor was a single, monolithic system. General for the relations of social organization of labor arising between workers and the economic body of the state (state enterprise) was the socialization of labor on a national scale, centralized state-normative labor management and distribution of material and financial resources. AT economic theory socialism and the science of Soviet labor law different kinds labor and the peculiarities of its organization were considered only as manifestations of professional, sectoral, territorial, etc. division of labor in a single universal system of its cooperation.

In the Soviet period, in the system of social organization of labor, the state and collective-farm-cooperative, production and non-production (including budget) spheres, individual, collective (brigade), sectoral, territorial, national levels of labor organization were traditionally distinguished. Based on this classification, in the system of socialist organization of labor, service in state bodies and institutions was nothing more than the usual work of workers in the state non-productive sector.

On the other hand, in the context of the total nationalization of all spheres of public life, the system of state administration occupied a dominant position, did not have clearly defined boundaries, covering not only the state apparatus, but also the economic mechanism, as well as all the main areas of labor application. There were no civil society institutions free from direct government control. The systems of legal regulation of the economy, labor and social protection were predominantly state-owned.

That is why there was no need to create a special sphere of public service in the system of social organization of labor and to separate its legal regulation. Soviet law did not know the legislation on public service at all: military and paramilitary service (represented by service in the bodies of the Ministry of Internal Affairs) was regulated by administrative legal acts, work in state bodies was regulated by general labor legislation. In general, the regulation of the activities of employees, like all employees, was carried out within the framework of universal system state administration, the components of which were actually the systems of social organization of labor and social protection of the population.

The revival of the Russian civil service was due to the reforms that took place in the socio-economic, socio-political and state structure of the country. These reforms radically change the nature, methods and forms of interaction between state power, state bodies and employees of the state with the emerging institutions of civil society, which inevitably entails fundamental changes in the spheres of the economy and social organization of labor.

The social organization of labor perceives those tendencies that are inherent in the organization of the economy, the regulation of the economic mechanism. In the conditions of a market economy, the liberation of the economic and economic sphere from direct state control, relations between subjects of economic and economic activity are built on the basis of economic and legal independence, self-regulation. In the system of social organization of labor, there is an expansion of the scope of individual contractual and local regulation, the development of social partnership. The general legal regime of labor regulation as a whole is characterized as permissive. The main concern of the state is not the direct management of production and labor, but the creation and maintenance of conditions, ensuring balance in social and labor relations.

Orientation to the economic system, liberation from the direct influence of the public administration system is the most common trend in the development of the Russian system of social organization of labor and its legal regulation. At the same time, a segment remains within the system of social organization of labor that retains a direct connection with the system of state administration. The organization of labor in the civil service and its legal regulation retain the features inherent in the state-regulated system of social organization of labor and its legal regulation. The management of the civil service is carried out by administrative methods, through mainly direct centralized government orders. Labor in the public service remains state-regulated, the spheres of individual contractual regulation, local rule-making, and social partnership relations are extremely narrowed. The general legal regime for regulating the labor of civil servants remains predominantly permissive.

Apparently, in modern conditions, the system of social organization of labor ceases to be monolithic, it is stratified with the allocation of various segments. In the labor economy, such segmentation is carried out depending on the forms of ownership and organizational and legal forms of enterprises (segments of the social organization of labor in budgetary, private, joint-stock, cooperative, individual organizations are distinguished), on the methods of labor management (organization of labor based on full or partial self-government , on a combination of centralized and contractual management), etc. .

In the legal regulation of labor, this is manifested in the expansion of intra-industry differentiation of labor law norms (in particular, the features of the legal regulation of the labor of working shareholders, co-owners, members of production cooperatives, persons working for employers-individuals, in religious organizations), etc. .

In the light of the foregoing, one can put forward an assumption about the formation in the Russian system of social organization of labor and such a segment, which can be called state-service organization of labor.

As an integral part of a single general system of social organization of labor, the state-service organization of labor is a system of social and labor relations that develop regarding the organization of professional service activities, labor management and the use of labor of civil servants, the establishment and application of their working conditions and social protection. There are a number of features that make it possible to define the state-service organization of labor as a relatively isolated segment of the Russian public organization of labor:

specialization of labor activity on ensuring the fulfillment of the tasks and functions of the state, the powers of state bodies;

belonging to the system of organization of state (public) power, the implementation of labor activity as part of the apparatus (in the state) of a state body;

state-normative regulation of the organization and working conditions;

the use of specific methods of organization, division and cooperation of labor, training, selection, distribution, redistribution of personnel, special forms of use of labor;

the existence of special legislation that singles out the civil service as a special category of professional activity, establishing the features of the legal status of employees, the use of their labor and social protection.

As part of the social organization of labor, certain communities are distinguished, called labor corporations or social and labor organizations - organizational, professionally and socially isolated, internally structured sets of workers acting according to a single plan to achieve a goal that is significant for all members of this association and to create a specific product.

Membership in these communities is based not only on personal labor, but also on involvement in the affairs of the corporation: participation in the distribution of profits, in the management of common property, etc.

Considered in this aspect, state civil service as a social and labor organization acquires the features of a socially, professionally, organizationally and legally separate social and labor stratum of employees - a kind of labor corporation, consisting of citizens who have exercised the constitutional right of equal access to public service and participate in managing state affairs through the implementation of labor activities in the system of state bodies to implement their tasks and functions.

Despite its relative isolation, the state-service organization of labor remains an integral component of the overall system of social organization of labor. It is this nature of their relationship that can be traced in the analysis of the structures of the social organization of labor and the organization of the public service.

The social organization of labor as a system of relations on participation in labor covers all stages (phases) of labor force reproduction: its consumption (use), distribution and production (reproduction). Accordingly, as part of this system of social relations, blocks (groups) of relations on the organization and use of labor, on the distribution (redistribution) of labor resources and on their production (reproduction) are distinguished.

In general, a similar structure of social and labor relations is taking shape in the state-service organization of labor. Here it is also possible to single out the stages (phases or spheres) of “production”, distribution, redistribution of personnel, organization and direct use of the labor of civil servants, their social protection.

In more detail, the structure of the social organization of labor is characterized by the following elements:

training, retraining, advanced training, professional orientation and professional selection of personnel, ways to attract them to work;

organization of jobs, labor rationing, its accounting, analysis and planning;

regulation of payment and material incentives for labor; labor protection, systems of social insurance and pensions for employees;

solution of employment problems, social support for the unemployed. In all of the above elements, the state-service organization of labor is most directly connected with the general system of social organization of labor. Thus, in terms of training and movement of personnel, the civil service directly depends on the existing system of general and vocational education, training and retraining of personnel. The civil service “draws” new personnel from the external environment, on the other hand, the labor market and general employment and social security systems are replenished with former civil servants. Suffice it to say that in the context of the financial and economic crisis, the problem of optimizing the number and reducing the cost of the state apparatus became actual, which immediately caused a discussion at a meeting with the President of the Russian Federation of the need to adjust the legal regulation of the employment of redundant employees.

In the civil service, methods and forms of labor organization, placement, rearrangement of personnel, their involvement in work, assessment of the effectiveness of official work, ensuring service discipline, encouraging and punishing employees (test, competition, certification, employment contract (service contract), transfers, transfers, secondment, incentives, disciplinary sanctions, etc.), identical or fundamentally similar to those used in the "ordinary" areas of social organization of labor. At the same time, as L.A. Chikanova, in a certain period of its development, labor law used the specifics of state-service labor regulation to form legal models designed for all employees. The very concepts of “test”, “attestation”, “inconsistency with the position held”, “discipline”, “dismissal”, “salary” originally arose precisely in service law. The reverse process is observed today - labor law concepts and constructions are transferred (with more or less significant and successful modifications) to the "soil" of civil service labor.

The main economic functions of wages are to be a stimulator of the quality and productivity of labor; a reflector of compliance with the complexity, tension and social significance of professional activity; a condition for ensuring both simple and expanded reproduction of the labor force - are also applicable to the system of monetary remuneration of civil servants. The amount and conditions of the monetary allowance (remuneration) and other social guarantees of employees should be established and adjusted taking into account the system of social distribution relations that has developed in the country, focusing on the existing sizes and forms of remuneration and social protection of workers.

Systems of professional selection and training of personnel, organization and remuneration of labor in the public service cannot be divorced from the existing conditions of demand and supply of labor. The material, technological, informational, organizational "equipment" of the labor of employees should correspond to the degree of resource equipment of labor in society that has been achieved in general.

In the system of social and labor relations that make up the social organization of labor, it is possible to single out the spheres of the labor market and the direct use of labor. If the labor market covers the area of ​​employment promotion (that is, the phases of exchange, distribution, redistribution of labor resources), then the scope of labor use is the process of its direct application (including both the labor activity itself and its organization). The labor market and the scope of its use are directly related to the system of economic relations.

In addition, the social organization of labor is closely related to the systems of education and social protection of the population (phases of production and reproduction of labor resources), since we are talking about professional training, retraining, social protection of potential, current or past subjects of labor. Taken as a whole, the system of social organization of labor is the object of regulation of a complex of branches of law. Fundamental in the system of legal regulation of labor belongs to the norms of constitutional law, since they determine the foundations of the legal status of subjects of labor, social and labor rights of a person and a citizen, and the principles of interaction between the state and civil society institutions. A very powerful impact on the functioning of the social organization of labor is exerted by civil law, which establishes the foundations of a market economy, regulates the procedure for creating, organizational and legal forms and the relationship of legal entities participating in economic activity. A whole block of branches of law (civil, tax, financial law, social security law) regulate relations arising from the appropriation, distribution and redistribution of property benefits created as a result of past labor. Criminal and administrative law establish liability for illegal actions committed both in the process of labor and in the assignment of its results. The labor market, the movement of labor resources, the training of personnel for labor activity is regulated by employment legislation, immigration legislation, education legislation, etc.

As a segment of the social organization of labor, the civil service in its various aspects is also regulated by a set of regulatory legal acts of various subject-industry affiliation. The foundations of the status of civil servants, as well as other subjects of public administration and labor activity, are established by the Constitution of the Russian Federation. Civil servants, along with other categories of persons whose professional activities are of a special nature, are recognized as special subjects of criminal and administrative responsibility. The allocation and distribution of budgetary funds for salaries, pensions and the provision of other social guarantees to civil servants is regulated by financial and budgetary legislation. The legislation on social security establishes the conditions and procedure for providing civil servants with pensions and other types of social security. Separate norms relating to public service are contained in civil legislation. For example, Article 575 of the Civil Code of the Russian Federation establishes restrictions on the value of a gift that can be received by a civil servant.

The legislation on preventing and combating corruption in the public service system is also complex, intersectoral in nature, including both measures of criminal, administrative, disciplinary, property (material) liability of employees, and various procedures for selection, verification, admission, placement, movement (rotation) of personnel employees, their stimulation and control over their behavior.

In the light of the foregoing, it is obvious that the reform of the civil service and the improvement of its legal regulation cannot be limited to the framework of administrative reform, but affects all the designated areas of legal regulation. Therefore, in particular, individual measures, especially those carried out in the form of campaigns (to reorganize the structure and functions of state bodies, strengthen discipline, fight corruption, reduce the number and increase wages of employees, introduce a system of administrative regulations, etc.) can give only a limited, one-sided result.

The effectiveness of civil service reform is directly determined by the general political situation in the country, socio-economic conditions, depends on the state national economy, labor market, education systems and social protection of the population. The civil service system must be brought into line with the new economic conditions and established social and labor relations. The reform of the state civil service must be coordinated with the changes that are taking place in the systems of social organization of labor, professional training of personnel and social protection of the population. The updating of civil service legislation should be closely linked to changes in labor and social security legislation. The theory of public service should make extensive use of the achievements of the sciences of labor law, social security law.

1.2 Cooperation and division of labor in the civil service: legal problems of official organization

The specificity of the state civil service as a public organization of labor, which consists in its "embedded" in the state apparatus, is clearly manifested in the system of civil service positions.

In the economics and sociology of labor, the organization of labor includes a set of organizational and labor relations that mediate the procedure for the implementation of the labor process, the division of labor and its cooperation, the procedure and forms of attracting labor to work, and the establishment of working conditions. The organization of labor consists in the selection and training of workers, the improvement of their qualifications, the placement of workers in their workplaces, the establishment of a rational relationship and interaction between them. The organization of labor also includes the regulation of labor, the establishment of conditions for remuneration, material incentives and social services for workers, maintaining labor discipline, and labor activity.

The social relations developing in the field of labor organization are divided into relations on the division and cooperation of labor, on the organization of employment, vocational training, retraining and advanced training of personnel, on the establishment of working conditions and social and consumer services, on supervision and control over compliance with the law. Such relations also exist in the system of labor organization in the civil service.

Labor activity is carried out in certain organizational and legal forms, organized labor structured according to the content of the labor function, the role and place of labor activity in the overall labor process.

The organization of labor in the civil service also includes the structuring of its internal structure: the establishment of a hierarchical system of positions and ranks (ranks, ranks), the establishment of requirements for civil service positions, the development of administrative and job regulations, the approval of the structure and staffing of state bodies. The legal relations that arise in this case, which develop between various state bodies, officials, are essentially relations of organization and cooperation of labor in the public service system.

Internal structuring is inherent in any social work, however, such a nature and degree of structural organization that the public service possesses are not characteristic of other types of professional activity. Usually, labor is structurally and functionally organized only at the level of individual enterprises, organizations or their associations. Possessing production and economic independence, they are autonomous in determining the number of employees, independently establish the structure and staff, introduce and abolish positions and professions, determine the requirements for the employees they occupy, the content of the labor function.

Employees are included in the labor collective of the organization, performing the social and labor role that is determined by the employer. The content of the labor function of an employee is determined by his place in the organization of the division of labor on the scale of an individual enterprise. According to Article 57 of the Labor Code of the Russian Federation, an employment contract may define a specific labor function of an employee that does not coincide with those contained in qualification guides lists of positions, professions, specialties, qualification requirements for them. Appropriate names of positions, specialties and professions and qualification requirements for them are mandatory for the employer only if the provision of benefits or restrictions is associated with the performance of the relevant work.

Public service also takes place as part of the collectives of state bodies. However, these bodies in their totality form a single system in which the functions and powers of individual units must be coordinated as a whole. Therefore, the state civil service implies a different, much higher degree of structural and functional organization of labor, division and cooperation of official functions and powers of state bodies and employees. The division of labor between employees, the content of their individual service functions, official powers are predetermined by the general tasks, functions and powers of state bodies and therefore cannot have the character of a local, intra-collective labor organization. Professional activity in this area should be structured and organized at the national level. At the same time, the main elements of the state-service organization of labor, its cooperation and division are the types of public service (military, law enforcement, civil), the federal and regional levels of the civil service, the system of departments, state bodies and civil service positions.

This goal is served by the establishment by the Federal Law "On the System of the Civil Service of the Russian Federation" of a unified system of civil service with its subdivision into types and levels depending on the functional features and structure of state bodies, as well as the establishment

Federal Law "On the State Civil Service of the Russian Federation" of a unified nationwide system of civil service positions.

For the Russian state civil service, built according to the “organizational and official” model, the category “position” is key. The very definition of the civil service, which is contained in Russian legislation: “professional service activities in certain positions of the civil service,” testifies to this. Occupation of a position is an obligatory sign of an employee, a necessary condition for belonging to the public service system.Substantially, the civil service consists in the performance of official duties in a particular position.Through the system of posts, the "external boundaries" of the public service are determined, internal organization, division and cooperation of official labor are carried out. In a certain sense, we can say that the civil service itself is a hierarchically built structure of positions and employees replacing them.

The existing legislative regulation of the official organization of the civil service is rather succinct. The Civil Service Law contains Chapter 2 “Civil Service Positions”, but it does not contain a detailed concept of a position, characteristics of its legal status, there are no clear rules for the establishment and liquidation of positions. In fact, the legislator limited himself only to defining, in the most general form, the goals of the posts (ensuring the execution of the powers of a state body or a person holding a public position); established a general classification of positions with their division into levels (positions of the federal civil service and civil service of the constituent entities of the Russian Federation), categories and groups; pointed out that the positions of the federal civil service are established by federal law or the Decree of the President of the Russian Federation, the positions of the regional civil service - by laws or other regulatory legal acts of the constituent entities of the Russian Federation, and the lists of positions are contained in the relevant Registers.

Based on a systematic analysis of the provisions of the Laws on the system of the public service of the Russian Federation, on the civil service of the Russian Federation, it is possible to formulate the principles in accordance with which the official organization, the state civil service, is built and operates. These are, in particular, the principles of the unity of the foundations of the official organization of the civil service at the federal and regional levels, its correlation with the official organizations of the military and law enforcement services and the relationship with the official organization of the municipal service; the principle of stability of the official organization, its conditionality by the tasks and functions of the state, the system and structure of state bodies; the principle of equality of conditions for access to positions in the civil service, taking into account professional and business qualities; certainty principle job function civil servant, the inadmissibility of its arbitrary change.

There is a certain duality in understanding the essence of the position of the civil service: on the one hand, the position is given the importance of a public state institution established to ensure the performance of state functions; on the other hand, it is given the role of a personified working (official) place in the structure of a state body. It is these aspects in their combination that are seen in the definition of a position as a stable legal establishment, a primary structural unit of the civil service system, a part of the competence of a state body assigned to an individual employee and containing a list of all types of work (functions) performed by him. In the literature, a public service position is understood both as the amount of authority established for one person to participate in the implementation of the competence of a state body, and as a certain official labor function (official position of a person) in the apparatus of a state body. In these definitions, emphasis is placed on the role that the position of the civil service performs in the organization of labor within the collective of the state body. The position of the civil service is considered either as a stable state institution established in a special order, or as an ordinary workplace, the creation and abolition of which, the definition and change of the official labor function of the person who occupies it, does not go beyond the level of intra-collective labor organization, the division of duties between employees within the state organ.

The dual approach to the position of the civil service can be traced in the legislation. So, speaking about the establishment of civil service positions in Article 8 of the Civil Service Law, the legislator means the position as a state institution; while regulating the legal status of employees in case of job cuts (Article 31 of the said Law), it proceeds from the understanding of a position as a specific official position in the structure of the apparatus of a state body.

It seems that the civil service position can be considered in at least three senses - functional, organizational and social. AT in a functional sense, the position is the original, initial form of division and cooperation of service functions. The position characterizes the professional and functional role of an employee, indicates his place within the team of employees of a state body, relationships with other employees, determines the requirements for a person replacing her or applying for her occupation, a stable and specific range of labor duties, grounds and conditions for responsibility for their improper performance.

AT organizational aspect, the position serves as a primary (grassroots) structural element of the state apparatus. At the same time, it is important to emphasize that the organizational position is included not only in the structure of the state body, but also in the civil service system as a whole. And this position of the civil service is fundamentally different from the positions of "ordinary" workers. Therefore, the establishment of a position, the definition of its main parameters (goals, categories, groups, qualification requirements), as well as its liquidation, are not issues of an intra-organizational (local) level. At this level, only positions can be assigned to certain structural divisions of a state body, distribution of specific responsibilities between posts within the framework of the internal division of service functions, specification of requirements for professional knowledge and skills. As for the very status of the position, decisions on its establishment, financing, liquidation, they should not be made by the representative of the employer, but at a higher state level.

AT The social context of the civil service position also plays a leading role in determining the working conditions and social protection of employees. Both the amount of the employee's salary and the amount of state social guarantees provided to him directly depend on the position held. The category and group of positions are associated with the method of entering the service, its duration, career. Thus, the positions of assistants (advisers) are filled on a non-competitive basis and for a certain term of office, the positions of specialists - based on the results of a competitive selection and on a permanent basis. Moreover, the very belonging of a citizen to a special social stratum, a professional corporation of civil servants, is due precisely to the fact that he has the right to occupy a civil service position.

In view of the foregoing, it seems that such a concept, very common in the literature, of a civil service position as a scope of functions and powers established for a certain person to participate in the implementation of the competence of a state body, is one-sided, simplified. In this perspective, the position of the civil service is considered only as an organizational form that ensures the execution of powers, the implementation of the competence of a particular state body.

In our opinion, it is necessary to propose a different, more detailed definition of the position of the civil service , - as a primary organizational-functional and social-service element of the state-civil service, through which the following are determined:

belonging of a citizen to the public service system;

belonging of an employee to a certain type and level of public service;

the place of the employee in the hierarchy of the civil service;

the nature and degree of participation of the employee in the implementation of state functions and in the exercise of the competence of the state body;

the specific social and service role of an employee in the division of labor in a given state body;

conditions of service, as well as types, conditions and amounts of remuneration and state social guarantees provided to the employee.

The functional, organizational and social aspects of the position are closely interconnected, and the leading role here belongs to the functions of the position. Civil service positions should be established to ensure the performance of specific public functions (the provision of public services), and their typology, place in. organizational hierarchy, social and service status and quantity - are directly dependent on the content, volume, nature and significance of these functions (services). The establishment or abolition of a state function (service), a change in its essential parameters are the grounds for the establishment or liquidation of positions, the revision of the elements of its status, and then for making appropriate adjustments to the structure and staffing of state bodies.

In the triad "function" - "organ" - "position", the meaning of the latter should not be reduced only to a particle of the competence of a state body, rigidly tied to the "fate" of this body and its structural subdivision. When transferring a state function (service) to another state body or to another level of government (for example, from federal to regional), the positions intended for the performance of this function with the appropriate amounts of funding may also be transferred with their subsequent inclusion in the updated structure and staffing of reorganized or newly created government agencies. The employees who fill these positions will change their subordination, some essential conditions for serving, but the state service status and the right to fill a position remain.

The general typology of civil service positions includes the division into military positions, law enforcement service positions, federal civil service positions and state civil service positions of the constituent entities of the Russian Federation. Civil service positions are classified into four categories (managers, assistants (advisers), specialists and support specialists) and five groups (higher chief, leading, senior and junior positions).

In public administration, as well as in other areas of social labor, there are functional, technological, professional and qualification forms of the division of labor. The division into categories reflects functional specialization and is consonant with the common classification of employees into managers, specialists and performers. The technological division of labor is manifested in the distribution of positions by branches and levels (central, regional and local) of state power. Groups of positions are established depending on the degree of significance, the level of responsibility of official powers and reflect professional and qualification differentiation. Qualification requirements for groups of positions reflect the level of professional education, knowledge, and practical skills that is minimally necessary to perform the relevant job function. Compliance of a civil servant with the qualification level should be ensured by the system of class ranks.

The specialization of positions is due to the professional division of labor within the state apparatus, is established depending on the functional features of the positions and the specifics of the subject matter of a particular state body, and implies that a civil servant has a professional education of an appropriate profile.

Division and cooperation of labor are carried out on different scales. There are international, national, intersectoral, sectoral, territorial and intra-industrial cooperation, as well as the corresponding levels of division of labor. The levels of cooperation and division of labor in the civil service can also be divided into the all-Russian, branch (departmental), regional. The scope and nature of service rights and obligations for a civil service position held are established taking into account its belonging to a certain group of positions and their specialization, that is, depending on the functional features of civil service positions and the specifics of the subject matter of the relevant state bodies.

At the level of individual state bodies, the specific content of the service function is individualized in accordance with the internal division of labor in the apparatus of a state body and is fixed in the official regulations, a local legal act developed by the personnel service and approved by the representative of the state employer - the head of the state body. The official regulations are part of the administrative regulations of the state body and must be linked to its other components: the regulations of the internal organization of the state body, the regulations for the performance of public functions and the provision of public services.

In our opinion, the existing division of civil service positions into categories is quite general and does not always allow to reflect the functional specifics of the position to the required extent. Thus, heads of both state bodies and their structural subdivisions are included in one job category, although their job functions differ significantly. The head of a state body is its official representative ex officio, acts on its behalf and bears personal responsibility for the results of its activities. In public-service relations, the heads of state bodies are vested with the powers of a representative of the state employer, perform a number of important functions in managing the public service and its organization, issue legal acts on the appointment of employees to positions and dismissal from service, have the right to apply incentives and disciplinary measures to them. All this significantly distinguishes them from the heads of structural divisions, whose official functions are reduced to the current organization of labor of "micro-collectives" of employees directly subordinate to them. It is for the positions of heads of state bodies and their independent territorial divisions (and not for all senior positions of the civil service system) that it is appropriate to establish a special procedure for appointment, the urgent nature of powers, more stringent restrictions, prohibitions and requirements for official conduct, additional grounds for bringing to disciplinary responsibility, termination of powers.

The positions of specialists are established for the professional support of the fulfillment of the tasks and functions of state bodies. Providing specialists - carry out organizational, documentation, information, financial, economic, economic and other support for the activities of the state body. The official duties of the persons replacing these positions do not include the adoption of independent managerial decisions and the issuance of acts of an authoritative-administrative nature. In fact, the content of the service work of providing specialists is close to the usual work of an auxiliary technical nature, and it is worth seriously considering the advisability of classifying these positions as part of the civil service.

The legislation on the civil service establishes special conditions for the status and service for only one category of officials - the heads of state bodies and their structural divisions. They are provided for appointment to a position without competition and for a certain term of office, a ban on membership in an elected trade union body, an increased level of remuneration, benefits and privileges, additional grounds for terminating a service contract, and some other features. As for the positions of the “specialist” category, there are no special conditions for their status and service. Meanwhile, it is their service work that ensures the fulfillment of the tasks and functions of state bodies, the provision of public services to citizens, that is, the social purpose of the public service is realized. Their activities are also associated with professional risks, an increased likelihood of a conflict of interest, they directly interact with citizens and organizations, and demand and authority directly depend on the level of their professional training, corruption resistance, ability to work with citizens and organizations, and the degree of compliance with the requirements for official behavior. civil service in society. It seems that the positions of specialists directly involved in the provision of public services, endowed with control and law enforcement powers in relation to citizens and organizations, should be singled out as a special category of civil service positions. For these positions, it is necessary to establish both special requirements for the behavior of employees in their interaction with citizens and organizations, as well as an increased level of remuneration, social and legal guarantees, including special guarantees of protection against unlawful interference in professional activities.

The positions of the state civil service are also divided into groups: higher, main, leading, senior and junior positions. Positions of the category "leaders" and "assistants (advisers)" refer to the highest, main and leading groups of positions, positions of the category "specialists" - to the highest, main, leading and senior groups, positions of the category "providing specialists" - to the main, leading, senior and junior groups of positions. In accordance with the category and group of positions held, civil servants are assigned class ranks, and qualification requirements for positions are established. The terms of remuneration, the duration of vacations, the amount of social guarantees provided depend on the category and group of the position of the civil service.

The functional qualification classification of positions can be supplemented by their division based on other criteria. Depending on the conditions for filling a position and serving, two main types of positions can be distinguished: professional career and political patronage. Professional and career positions (positions of the category "managers", filled without limitation of the term of office, and the categories of "specialists" and "providing specialists") are filled on a competitive basis, without limitation of the term of office, the service for these positions consists in the constant professional performance of the functions of the state, of its bodies, is associated with regular verification of the professional level, passing attestations, passing qualification exams, involves promotion along the "official ladder". Political and patronage positions (positions of the category "assistant (advisers)" and the category "leaders" filled for a certain term of office) are filled out of competition, the persons holding these positions are exempted from attestations, qualification exams.

Taking into account the typology of state bodies, positions in the apparatus of legislative, executive and judicial bodies, positions in federal ministries, services, agencies, and their territorial bodies are distinguished. The difference between the latter is based on the nature of the functions performed:

ministries develop and implement state policy, legal regulation in the relevant area;

services carry out state supervision and control; agencies provide public services. A corresponding specialization of labor is formed: employees of ministries are mainly engaged in predictive-analytical, design and rule-making activities, employees (state inspectors) of federal services are engaged in control and verification activities, and employees of federal agencies are engaged in various registration, title establishing, etc. actions.

Note that this corresponds to the general trend towards the professionalization of labor, according to which, within the same profession, the areas of activity of the labor functions of workers differ significantly. In essence, in the system of official organization in the state civil service, analytical and rule-making, control and service-law enforcement specializations are formed. This necessitates in-depth professional training in relevant areas, clarification of qualification and other requirements for civil service positions in federal ministries, services and agencies.

The establishment of a public service position is always associated with the expenditure of budgetary funds allocated for the maintenance of the official place (provision of premises, means of communication, office equipment, transport, etc.) and for the material support of the employee himself. Deserves support for the proposal that the total number of civil service positions should be determined annually by categories and groups in the laws on budgets.

It seems that the approval of the structure and staffing of state bodies, functional duties for civil service positions and qualification requirements for them, the adoption of official regulations for employees also need special regulatory regulation and unification. It seems expedient to legislatively regulate not only the procedure for the establishment and abolition of state bodies, but also the rules for the establishment and abolition of civil service positions in them.

2. LEGAL RELATIONS IN THE SPHERE OF STATE CIVIL SERVICE

2.1 "Internal" and "external" relations of the civil service

The civil service can also be studied as a set of certain legal relations that develop regarding its passage and organization. A variety of legal relations also arise in the exercise by employees of their professional activities, the exercise of official powers, interaction with various bodies, organizations and citizens.

Legal relations occupy a central place in the mechanism of legal regulation. It is through them that the norms of law are implemented in the activities of state bodies and their employees, in the behavior of citizens. Legal relations also have system-forming significance, since the presence of specific relations that are the subject of regulation of a certain set of legal norms indicates the relative isolation of these norms in the system of law.

This category is deeply and thoroughly covered in the legal literature. At the same time, works on the theory of law give a general description of legal relations, their content and subjects, and reveal their role in the mechanism of legal regulation.

Legal relations - developing in the sphere of public service, were mainly studied in the works of specialists in administrative law - A.P. Alekhin and Yu.M. Kozlov, Velsky, B.N. Gabrichidze and A.N. Chernyavsky, V.M. Manokhin, Yu.N. and others. In the science of labor law, the issues of legal relations of civil servants were discussed in the works of N.G. Aleksandrova, L.Ya. Gunzburg, K.P. Gorshenina, O.V. Smirnova, L.A. Syrovatskaya, V.N. Skobelkina, Z.S. Gafarova, S.A. Ivanova, L.A. Chikanova, and others.

At the same time, representatives of these branch legal sciences have developed different, and sometimes diametrically opposed points of view on issues of the nature, structure "and sectoral affiliation of legal relations, the subjects of which are civil servants. To a large extent, these differences in views are due to the differences inherent in the sciences of labor and administrative law. - in "principal approaches to determining the subject of legal regulation of the relevant branches of law.

In the science of administrative law, relations in the sphere of civil service are considered as relations of a state-administrative nature that arise in the organization and practical implementation of the imperious "executive and administrative activities of public administration bodies, and are aimed at implementing the managerial functions of the state, public authority.

At the same time, public administration in administrative law is considered in a broad aspect: not only as an imperious executive and administrative activity of state bodies, but also as an intra-organizational activity in the apparatus of the state bodies themselves. Accordingly, state-administrative relations are divided into “external relations” that develop between state bodies, as well as their employees and various objects that are not part of the executive power system (citizens, public associations, state and non-state organizations), and the so-called “intra-apparatus (intraorganizational) , intra-system) relations”, mediating the formation of a system of executive authorities, their interaction with each other, the organization of service in state bodies, forms and methods of internal work.

Based on this division of managerial relations, representatives of the science of administrative law and relations in the public service are also divided into two main groups. The first group includes relations between state bodies, civil servants and external social objects managed by them, the second group includes relations regarding the organization and passage of the public service itself, which develop within the state apparatus. In the science of administrative law, these relations are called "external" and "internal" service (state-service) relations, respectively.

“Internal” service relations, in turn, are divided into structural and functional relations, aimed respectively at forming the structure and ensuring the functioning of the state apparatus, relations regarding the organization of the service, managing it, and relations regarding its practical implementation.

From the point of view of administrative scientists, all relations in connection with the formation of the structure of the civil service, its organization and management of the service, which develop both within the state body and in the system of the state apparatus as a whole, belong to the sphere of administrative and legal regulation. As for relations regarding the functioning of the state civil service, the performance of official activities, here the positions of representatives of the science of administrative law diverge.

The division into "internal" and "external" service relations is also used in the literature on labor law. Representatives of the science of labor law (M.O. Buyanova, V.I. Mironov, O.V. Smirnov, L.A. Syrovatskaya, Z.S. Gafarov, S.A. Ivanova, V.Sh. Shaykhatdinov) believe that those “internal” relations, which are called relations by administrative scientists regarding the practical implementation of public service, are in fact labor (service labor) relations and are included in the subject of labor law. In their opinion, these relations are a kind of labor relations, since they develop in the labor market between an employee (civil servant) and an employer (the state represented by a state body), mediate the performance by an employee of a certain labor function with his inclusion in the labor collective of a particular state body, have a lasting and compensatory nature. At the same time, as the above authors note, service labor relations have their own specifics - they are public in nature, directly related to the implementation of state tasks and functions, and are regulated not only by general labor law, but also by special legislation on public service. Features of service labor relations are also manifested in their elements: subjects, objects, content, legal facts.

In addition to the actual labor relations, in the subject of labor law, other relations are also distinguished, called closely related (adjacent) or derivative labor relations. Unlike labor relations proper, these relations are not directly aimed at mediating the use of labor, but precede, accompany or follow from labor relations. These include relations on employment, on professional training and advanced training of personnel directly at the enterprise, on supervision of labor protection and compliance with labor legislation, on the consideration of labor disputes. Some authors, as independent groups of relations in the subject of labor law, single out social partnership relations, calling them social and labor or socio-economic relations in the sphere of labor, and the relationship of responsibility of the parties to the employment contract.

The Labor Code of the Russian Federation (Article 1) includes relations on the organization of labor and labor management as other directly related to labor relations; employment with this employer; for professional training, retraining and advanced training of employees directly from this employer; on social partnership, collective bargaining, conclusion of collective agreements and agreements; on the participation of employees and trade unions in the establishment of working conditions and the application of labor legislation in cases provided for by law; on the liability of employers and employees in the labor sphere; for supervision and control (including trade union control) over compliance with labor legislation (including labor protection legislation); for resolving labor disputes.

Similarly, in the sphere of public service, previous, accompanying and arising from official legal relations are distinguished: relations for employment, professional training, advanced training, material support of employees, including after dismissal from public service, as well as relations for the consideration of official labor disputes.

The stated points of view show that when considering the structure and sectoral affiliation of relations in the sphere of public service in the sciences of administrative and labor law, the constructions of subjects of legal regulation traditional for each of these sectors are used. Meanwhile, in our opinion, on the basis of only administrative-legal or labor-legal concepts, respectively, it will not be possible to build a single concept that reflects the specifics of the public service as a public institution of professional labor activity to ensure the implementation of state tasks and functions. When determining the composition of the relations that make up the subject of legal regulation of the public service, approaches are required based on the synthesis of the achievements of the sciences of administrative and labor law.

In the light of the foregoing, it is necessary, first of all, to solve the main task - to correctly determine the boundaries of the subject of legal regulation of the state civil service. And in this regard, fundamental objections are raised by the inclusion in its composition of the so-called "external" relations - the relations of state administration.

The essence of state-administrative relations consists in the organizing influence of subjects of state administration (state bodies, officials acting on behalf of the state) on objects external to the state apparatus: local governments, public associations, organizations, individual citizens. Here, the state manifests itself in relation to civil society as an institution of public authority, as an organizer of public life, due to which these relations are public-imperious legal relations, relations of the implementation of state power.

Such relations, which can also be called “external”, are entered into by all employees whose labor activity consists in interaction with material or social labor factors. The content of these relations predetermines the working conditions (the labor function of the employee, rights, duties and responsibilities, the mode of labor activity, features of labor protection, the amount of benefits and compensations, etc.). Consequently, in comparison with labor relations, these relations have the value of an external factor, under the influence of which the specific content of labor relations is determined.

"External" relations of civil servants in this sense are similar to the relations under consideration. The specificity of these relations, consisting in the fact that they develop in the sphere of public administration and therefore have a public domineering character, should be taken into account when establishing the conditions for the organization and passage of professional service activities. However, in relation to the civil service itself, these relations have the significance of an external factor that is outside the subject of its regulation.

The subject of labor law is not all relations in the sphere of labor, but only those that arise regarding the use of hired labor, the conditions for its use, organization and management. In the same way, the subject of legal regulation of the civil service is not all legal ties that develop with the participation of employees, but only relations regarding its “internal structure”: the organization of professional service activities and its management, the conditions and procedure for serving, the status of employees. Otherwise, a truly boundless circle of public legal relations, in which the state participates in the person of state bodies and employees acting on their behalf, will fall into the sphere of public service regulation.

This is how the sphere of legal regulation of public service is designated in the legislation. In the preamble of the Federal Law "On the Fundamentals of the Civil Service of the Russian Federation" it was said that this law establishes the legal foundations for the organization of the civil service and the foundations for the legal status of civil servants. According to the preamble and Article 2 of the Federal Law "On the State Civil Service of the Russian Federation", this Law establishes the legal, organizational, financial and economic foundations of the civil service, and the subject of its regulation are relations related to entering the civil service, its passage and termination, and also the definition of the legal status (status) of civil servants.

It seems that the confusion of "internal" and "external" relations in the civil service was due to the fact that in a certain period there were no specialized regulatory legal acts, the main subject of regulation of which were precisely the issues of organizing the civil service, the procedure and conditions for its passage, official status and social protection of civil servants. Separate norms relating to the public service and addressed to employees were included in such normative legal acts, which, in their main content, regulated general issues of the state structure, public law status and structure of state bodies, their competence, financing, relations with citizens and organizations. Such a comprehensive regulation in a single normative legal act of issues of both public administration and the civil service was widely used in legislative practice, and, it seems, was appropriate and effective, since it made it possible to ensure a close relationship between the functional features of state bodies and the specifics of the professional activities of employees of these bodies.

In this regard, a very typical example of a normative legal act, in which the "functional functions" of a civil servant is directly linked to the functions of a state body, is the official regulations. The official regulations, which are part of the administrative regulations of the state body, along with qualification requirements, official duties, rights, responsibilities, procedures for official interaction, indicators of the efficiency and effectiveness of the work of an employee, also contain a list of public services provided to citizens and organizations. Thus, the official regulations are a normative legal act in which the "internal" and "external" relations of the civil service are regulated in a complex.

2.2 Service employment relationship

In the scientific and educational literature on labor law, labor relations are defined as relations on the participation of people in social labor that arise in the process of direct social labor activity regarding the activation of the ability to work. The following are recognized as characteristic features of social labor relations: the emergence of these relations in connection with direct activity people in the process of labor, the content of which is the creation of material or spiritual wealth; the inclusion of an employee in the labor collective of a particular organization with the ensuing subordination of his internal labor regulations; paid and personal nature of work.

Such relations cannot but arise in the process of exercising the state civil service, since its content is professional labor activity, that is, a type of social labor, and the labor of employees has a social, productive character, is performed in a certain position of the civil service, that is, in accordance with specific job function. In the process of this work, the implementation of the powers of state bodies is ensured, various kinds of management decisions are developed, public services are provided, that is, certain benefits are created (produced). Employees work as part of collectives of the relevant state bodies, obeying the regulations and service regulations in force in these bodies, receive a monetary allowance (remuneration) for their professional activities. Consequently, the relevant relations that arise in the application of the labor of state civil servants are, by their nature, public labor relations.

Service labor relations in the public service are closely related to state-administrative relations, but are not absorbed by these relations. Unlike state-administrative relations, the task of which is to mediate the external, “material” side of the public service, service labor relations develop regarding the use of the labor of employees, the conditions and organization of their professional activities, that is, they have a social and labor nature.

The content of service labor relations is social and labor rights and obligations, which basically coincide with the rights and obligations established for the parties to labor relations by labor legislation. The basic rights and obligations of an employee, established by Article 21 of the Labor Code of the Russian Federation, apply in full to civil servants. Like all employees, they have the right to conclude, amend and terminate a service contract (agreement on the use of labor) in the manner and under the conditions established by law; to provide work under this agreement; to a working (office) place that meets the conditions provided for state standards organization and labor safety; for the timely and full payment of wages in accordance with their qualifications, the complexity of the work, the quantity and quality of the work performed; to complete and reliable information about working conditions and labor protection requirements at the workplace (service) place.

The civil service legislation enshrined a number of social and labor rights of employees, which, although formulated somewhat differently, nevertheless coincide in their content with the general rights of employees. This is, in particular, the right to get acquainted with the official regulations and other documents that define the rights and obligations of an employee in his position, criteria for evaluating the effectiveness of the performance of official duties, performance indicators and conditions for career growth, which is essentially the right of an employee to information about working conditions. ; the right to ensure appropriate organizational and technical conditions, the right to receive information and materials necessary for the performance of official duties, which is a modification of the employee's right to a workplace provided normal conditions labor. The right of an employee to access in accordance with the established procedure in connection with the performance of official duties to state bodies, local governments, public associations and other organizations, the right to make decisions and participate in their preparation in accordance with official duties are consonant with the general right of an employee to provide him with appropriate conditions for the performance of labor duties due to the content of the labor function.

The rights of civil servants to rest and pay, to protect their personal data, to job growth, to professional training, advanced training and internship, to membership in a trade union, enshrined in Article 14 of the Federal Law “On the State Civil Service of the Russian Federation”, have a labor character for consideration of individual service disputes.

Employees have the right to work that meets the requirements of safety and hygiene, to compensation for harm caused in connection with the performance of labor duties, to compulsory social insurance. In the civil service, working conditions are guaranteed that ensure the efficient and safe performance of official duties by an employee, medical care, compulsory state social insurance of an employee in case of illness or disability during the period of public service.

The Labor Code of the Russian Federation enshrines the right of an employee to participate in the management of an organization, and establishes the forms for exercising this right. Article 53 of the Labor Code stipulates that the participation of employees in the management of an organization is carried out within the framework of social partnership relations, as well as by employees receiving information from the employer on issues that directly affect their interests, discussing with the employer issues related to the work of the organization, making proposals for its improvement .

In the civil service, the existence of social partnership relations is also possible; employees have the right to receive information regarding their activities, the right to make proposals for improving the activities of state bodies.

Employees have the right to protect their labor rights, freedoms and legitimate interests by all means not prohibited by law. According to Article 352 of the Labor Code of the Russian Federation, the main ways to protect the labor rights and legitimate interests of employees are state supervision and control over compliance with labor laws; protection of labor rights of workers by trade unions; self-protection by employees of labor rights.

In the civil service, state supervision, extra-departmental and intra-departmental control over compliance with the legislation on civil service is carried out. An employee is given the opportunity to protect his rights, to refute information discrediting his honor and dignity, to demand an internal investigation.

Service labor includes those rights, obligations and restrictions that relate directly to the labor activity of an employee, determined by his labor function performed in the team of a particular state body. Service labor rights should also include such rights as the right to promotion, to promotion based on the results and length of service, skill level, the right to participate in a competition for filling a vacant position in the civil service, since through the use of these rights, the realization of the right to work in the public service.

According to the Labor Code of the Russian Federation, an employee is obliged to conscientiously fulfill his labor duties, observe labor discipline, internal labor regulations, comply with labor standards and requirements for labor protection and safety, and preserve the property of the employer. Civil servants have similar responsibilities, who must conscientiously fulfill their duties in accordance with the official regulations and service contract, fulfill the instructions of managers, observe official regulations, the procedure for working with official information, and maintain the required level of qualification.

Having the nature and main features of social labor relations, service labor relations at the same time have a number of characteristic features. These features are inherent in all elements of the considered legal relations: content, subject composition, grounds for occurrence, change and termination.

The content of the labor relationship is the labor function - work in a particular specialty, qualification or position. Labor relations arise between the employee and the employer on the basis of an employment contract. The parties to labor relations are the employee and the employer. Any employee is individual who has entered into an agreement with the employer on the personal and paid performance of work on a specific labor function. The employer may be an individual or a legal entity (organization), another entity entitled to conclude employment contracts.

The Federal Law “On the Fundamentals of the Civil Service of the Russian Federation” used precisely this “basic scheme” for regulating labor relations, provided for by labor legislation. A citizen entered the civil service on the terms of an employment contract concluded with the relevant state body, which was his employer. The conclusion of an employment contract, admission to the service were formalized by an order for a state body on appointment to a civil service position.

This procedure for the emergence of service labor relations on the basis of an employment contract as a result of appointment to a position fully corresponded to Articles 16, 19 of the Labor Code of the Russian Federation.

Civil servants were subject to labor legislation with the specifics established by the Federal Law “On the Fundamentals of the Civil Service of the Russian Federation”. In particular, it was envisaged that in a number of cases, entering the civil service should be preceded by a competitive selection procedure, citizens entering the civil service are required to provide information on income and property, give an obligation to keep state secrets if the civil service will be associated with work with information, constituting a state secret. During the service, periodic certification of employees was provided for, a number of restrictions and prohibitions were established for them, and at the same time additional social guarantees and labor benefits. Civil servants bore the usual disciplinary and material liability under the norms of labor law. Labor relations in the public service were terminated both on the grounds provided for by labor legislation and on additional grounds established by the legislation on public service.

Thus, according to the Federal Law “On the Fundamentals of the Civil Service of the Russian Federation”, service labor relations had a subject composition traditional for labor law regulation, were built on the basis of an employment contract, but with the peculiarity that this contract was concluded on the basis of a complex “set” of legal facts, elements which were a competition, access to information constituting a state secret, verification of information about the property status. The working conditions in the civil service had significant features, but these features did not affect the foundations, the "core" of the subject of legal regulation - labor relations, their legal form, the grounds for the emergence, change and termination, subject composition.

There are significant differences between service contracts used in the public service system and an employment contract, which, in particular, relate to their content, subject composition, terms and procedure for concluding, changing, grounds and procedure for termination. At the same time, it would be wrong to ignore their general social and legal nature, which lies in the fact that both a service contract and an employment contract in a broad sense are individual labor agreements.

An employment contract is an agreement between an employee and an employer on the performance of work on a specific labor function in compliance with certain working conditions and internal labor regulations. The essence of the service contract also consists in an agreement on the personal performance by a citizen of duties for a specific civil service position in accordance with the official regulations, compliance with certain conditions of service and official regulations. Those working under an employment contract perform certain labor actions under the guidance of the employer and its administration, receiving in return wealth. The employer uses the labor of employees to realize his interests, organizes and pays for this labor. Civil servants, acting as a party not to an employment contract, but to a service contract, nevertheless, perform functions that are generally similar to the functions of employees: they perform official duties in certain positions, receiving monetary remuneration (maintenance) for this, that is, they perform personal labor for the corresponding payment for a specific job (service). Through the professional activities of employees, the execution of the powers of the state, its bodies and officials is ensured, therefore, their activities are used by the state to implement their functions, the practical implementation of the competence of state bodies, that is, it is alienable, non-independent, in other words, hired.

The content of both the employment contract and the service contract are the rights and obligations of the parties of a labor (service-labor) nature. The essential terms of the service contract listed in Article 24 of the Federal Law "On the State Civil Service of the Russian Federation" (title of the position indicating the subdivision of the state body, date of commencement of the performance of duties, rights and obligations of the employee and representative of the employer, conditions of service and regime of working time and rest time, terms of remuneration, etc.) basically coincide with the mandatory terms of the employment contract. As well as in the employment contract, the service contract, by agreement of the parties, may include additional conditions that do not worsen the position of the employee in comparison with the law. The terms of the contract and the employment contract can only be changed by mutual agreement of the parties and in writing. Both employment contracts and service contracts can be concluded for both indefinite and fixed periods (up to five years), while the cases when a fixed-term service contract and a fixed-term employment contract are concluded largely coincide. An employment contract and a service contract have a common typology of grounds for their termination. Both labor and civil service laws prohibit demanding the performance of duties not covered by an employment contract or service contract.

The differences between the employment contract and the service contract are visible in some features relating to their parties, the procedure for concluding, the list of persons with whom fixed-term contract, the content of additional conditions and grounds for termination of the contract. In particular, a service contract is concluded on the basis of an act of appointment to a civil service position, its parties are a citizen who has exercised the right of access to public service, and a representative of a public employer, in the role of an authorized official - the head of a state body, a person holding a public position , or their representatives. In addition to the cases common with the conclusion of a fixed-term employment contract, a fixed-term service contract is concluded to fill positions in the categories "managers", "assistants (advisors)".

In our opinion, such a point of view would be correct, and the service contract should be characterized as an independent type of labor (service) contract, which is concluded between an authorized official and a citizen entering the civil service or being in this service in cases, on conditions and in the manner prescribed by the legislation on the state civil service. The main difference between a contract and an employment contract is not seen in the specifics of its legal regulation. On the contrary, in the rules governing the content, duration, procedure for concluding and terminating a service contract and an employment contract, there are more similarities than differences. The fact that the norms of labor law perform, as it were, "donor" functions, testifies to the "genetic relationship", the fundamental compatibility of labor and service labor relations.

However, a service contract is a kind of labor contract, which is specially identified by the legislator as a legal form of labor use in the public service system and is fully regulated not by labor legislation, but by civil service legislation. According to S.Yu. Golovina, the use of the term "contract" for a special kind of labor agreements with specific conditions concluded with certain categories of workers (in particular, management personnel) is not only justified, but also necessary to distinguish it from a conventional labor contract.

When regulating official labor relations in the public service, methods are used predominantly not of a dispositive, but of an authoritatively binding nature, not of a local, but of a centralized regulation. As correctly noted by L.A. Syrovatskaya, this does not change the labor essence of these relations, since the subordination of subjects, when one is endowed with the power to give instructions, and the other is obliged to fulfill them, is a common feature of any labor relationship. Continuing this idea, it should be emphasized that the use of special legal forms of involvement in professional service activities in the public service system does not change its social and labor nature. At the same time, it cannot be denied that this indicates an ever-increasing originality of service labor relations in the civil service, an increase in the degree of their isolation from “general” labor relations.

By concluding an employment contract, a citizen realizes the ability to work, becoming an economically and organizationally dependent employee: Entering the public service, entering into a service contract and acquiring the status of a civil servant, a citizen realizes both the right of equal access to public service and the right to work. Therefore, the conditions and procedure for entering the civil service and concluding a service contract differ in some respects from the conditions and procedure for concluding an employment contract. For employment in the civil service, a number of special requirements have been established (conditions for exercising the right to equal access to public service and the right to work) regarding citizenship, age, proficiency in the state language, level of education, length of service, professional knowledge and skills.

To acquire the status of an employee, it is enough to conclude an employment contract, on the basis of which an order (instruction) of the employer is issued, formalizing the employment. The acquisition of the status of a civil servant is associated with several successive legal facts: first, a competitive selection of a candidate for a vacant position or for inclusion in the personnel reserve is made, then a legal act of a state body is issued on the appointment of a citizen to a civil service position, after which it is concluded service contract. The legal significance of the legal act of the state body, on the basis of which a service contract is concluded, is the admission of a citizen who meets the legally established requirements and has passed a competitive selection to the public service. The significance of the service contract is seen in a different way - in ensuring the principles of freedom and voluntariness of labor in the public service, observing the contractual principles of involvement in official activities, specifying the conditions of service.

It follows that the violation of the conditions and procedures for admission to the public service (hiring of persons who do not meet the established requirements, non-compliance with the competitive selection procedure, absence of an act on appointment to a position) should be qualified as a violation of the mandatory rules when concluding a service contract and serve as the basis for its termination. Appropriate additions must be included in Article 40 of the Federal Law "On the State Civil Service of the Russian Federation".

The generality of service labor relations and labor relations, the participants of which are ordinary workers, is determined by their common social and labor nature and the similarity of content. Analyzing the features of service labor relations in comparison with general labor relations, we can distinguish the following distinctive features:

service labor relations arise about and in connection with the implementation of professional service activities of citizens to ensure the execution of the powers of state bodies, i.e. limited to the public service sphere;

the labor function of a civil servant consists in the performance of duties in a civil service position, which is established to ensure the execution of the powers of a state body or a person holding a public position, belongs to a certain type, category and group of positions and is included in the Register of civil service positions;

the basis for the emergence of service labor relations is a special type of labor contract - a service contract concluded in the manner and on the terms established by the legislation on the civil service;

the subject of service labor relations is a civil servant - a citizen admitted in accordance with the procedure established by law to fill the position of the state civil service, who has assumed obligations for its passage, has concluded a service contract and receives a monetary allowance (remuneration) at the expense of the relevant budget. The legal position (status) of a civil servant is established by the federal law on the type of public service and includes both rights and obligations of a social and labor nature, as well as restrictions, obligations, prohibitions, rules of official conduct, responsibility;

the representative of the employer - the head of the state body, the person holding the public position, or their representative exercising powers on behalf of the state employer - the Russian Federation or the corresponding subject of the Russian Federation is recognized as another participant (party) in service labor relations;

3. PROBLEMS OF LEGISLATION ON THE CIVIL SERVICE OF THE SUBJECTS OF THE RUSSIAN FEDERATION

In connection with the reform of the legislation on civil service, many conclusions and proposals have lost their relevance or need to be substantially adjusted. With the start of the implementation of the federal program for reforming the civil service, the adoption of the Federal Laws "On the System of the Civil Service of the Russian Federation" and "On the State Civil Service of the Russian Federation", the legislation on the civil service of the Russian regions entered a new phase of its development, during which there were not individual cosmetic improvements or amendments, but a radical revision of the very concept of the regional public service and the regulatory legal acts that regulate it.

A feature of the regional legislation on public service is that during its formation, approaches to understanding the public service of the constituent entities of the Russian Federation and to the distribution of competence between the federation and its subjects for its regulation fundamentally changed. The regional public service has become a kind of “floating” subject, either under the exclusive jurisdiction of the subjects of the Russian Federation, or under their joint jurisdiction with the Russian Federation.

Initially, the federal and regional civil service were essentially considered as two different areas of jurisdiction, divided respectively between the Russian Federation and its constituent entities. In political and legal terms, such a position was consonant with the "parade of sovereignties" of the constituent entities of the Russian Federation that was taking place at that time, claiming "their" civil service as one of the attributes of statehood.

As a constitutional and legal basis for this construction, there were provisions of the Constitution of the Russian Federation, interpreted as follows: since only the federal public service is under the exclusive jurisdiction of the Russian Federation (paragraph "t" of Part 1 of Article 71), and in the subjects of joint jurisdiction (Article 72 of the Constitution of the Russian Federation) , the civil service of the constituent entities of the Russian Federation does not appear; by virtue of Article 76 of the Constitution of the Russian Federation, it is fully under the jurisdiction of the constituent entities of the Russian Federation.

A number of constituent entities of the Russian Federation reproduced this construction of “separate jurisdictions” in their constitutions (charters) and began to consistently develop it in the current legislation.

In the Federal Law of July 31, 1995 No. 119-FZ “On the Fundamentals of the Public Service of the Russian Federation”, the approach to public service as a subject of jurisdiction has changed significantly. The federal civil service and the civil service of the constituent entities of the Russian Federation were considered in this Federal Law no longer as autonomous institutions, but in the context of a more general concept - the civil service of the Russian Federation, which includes the federal civil service, which is under the jurisdiction of the Russian Federation, and the civil service of the constituent entities of the Russian Federation, which is in their jurisdiction. The delimitation of powers in the sphere of public service between the Russian Federation and its constituent entities began to be made on the basis of a different reading of the constitutional norms, according to which the public service as a whole does not form an independent constitutional subject of jurisdiction, and the powers to regulate it stem from other, “adjacent” areas. Thus, in accordance with Articles 55 (Part 3), 71, 72 (Clause "k") of the Constitution of the Russian Federation, the general principles of organization of public authorities, labor and administrative legislation are under the joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation; regulation of the rights and freedoms of man and citizen and their restriction are the prerogative of the federal legislator.

This led to the conclusion that the public service should be attributed to joint jurisdiction, since it is closely connected with the organization of the system of state bodies, and the Russian Constitution does not mention legislation on public service, and its regulation is carried out by the norms of labor and administrative legislation. At the same time, the regulation of the rights, duties and restrictions of civil servants, as well as the federal civil service, are within the exclusive jurisdiction of the Russian Federation.

With the adoption of the Federal Laws “On the System of the Civil Service of the Russian Federation” and “On the State Civil Service of the Russian Federation”, the approach to the distribution of competence between the federation and its subjects regarding the regional civil service was again changed. The central idea of ​​the concept of reforming the civil service was to create a unified system of civil service, strengthening the unification of its organization and legal regulation. The general direction of the internal differentiation of the public service system was associated with its subdivision into types (military, law enforcement, civil), and not at the federal and regional levels. The civil service of the constituent entities of the Russian Federation was assigned the role of nothing more than a subspecies, a territorial component of the civil service, one of the types of the unified system of the civil service of the Russian Federation.

The federal law "On the system of public service of the Russian Federation" divided the subject of public service into two parts: legal regulation and organization. Unlike other subjects of jurisdiction (such as, for example, labor, administrative legislation), the civil service includes not only law-making powers (normative legal regulation), but also powers for the practical organization of the service and its management (defining the structure and staffing of state bodies, their logistics and financing, selection, placement and management of civil servants).

The legal regulation of the state civil service of the subjects of the Russian Federation is assigned to the joint jurisdiction of the Russian Federation and the subjects of the Russian Federation, and its organization - to the jurisdiction of the subject of the Russian Federation.

In the field of legal regulation and organization of the regional public service, there was a redistribution of competence in favor of the federal center: a number of significant powers that were previously exercised by the subjects of the Russian Federation were now assigned to the state authorities of the Russian Federation.

So, exclusively at the federal level, the following are established: a general classification of positions and class ranks of the civil service, which must correspond to the positions and class ranks of the civil service of the constituent entities of the Russian Federation;

legal status (status) of a civil servant of a constituent entity of the Russian Federation, including restrictions, prohibitions, obligations, requirements for official conduct;

the procedure for entering the civil service and holding a competition; conditions of service contracts, the terms and procedure for their conclusion, as well as the grounds for and procedure for terminating them;

age limit for public service; rules for processing, storing and transferring personal data of civil servants, the procedure for maintaining the Consolidated Register of Civil Servants;

general conditions for the civil service, the procedure for attestation, passing the qualification exam, assignment and retention of class ranks;

the structure and types of wages, the size of the bonus for long service, the general rules for the formation of the wage fund;

types of state guarantees in the civil service; rules for calculating the length of service in the civil service;

types of incentives and disciplinary sanctions, the procedure for their imposition;

general conditions for vocational training, retraining, advanced training and internships for civil servants;

responsibility for violation of the legislation on the state civil service;

the procedure for resolving conflicts of interest and considering individual service disputes.

According to the content, all the powers of the constituent entities of the Russian Federation in the field of legal regulation and organization of the regional public service can be divided into three groups. The first group includes the powers to regulate certain issues of organizing and performing public service in a constituent entity of the Russian Federation. The legislation of the constituent entities of the Russian Federation establishes the positions of the civil service of the constituent entity of the Russian Federation, establishes qualification requirements for length of service or work experience in the specialty, approves the Register of positions of the state civil service of the constituent entity of the Russian Federation, determines the procedure for assigning class ranks of the civil service of the constituent entity of the Russian Federation to civil servants holding the highest and main positions.

The second group includes the powers to regulate the socio-economic conditions of labor (service). The constituent entities of the Russian Federation establish the size of official salaries and salaries for the class rank of civil servants, determine the procedure for their indexation, the procedure for the formation of the wage fund, approve the list of positions for which a special procedure for remuneration is provided. The legislation of the constituent entities may regulate the procedure and conditions for granting civil servants additional leave for irregular working hours, the amount of lump-sum payments and incentives, the procedure and conditions for secondment of employees, reimbursement of additional expenses for them in connection with the move, cases, procedure and amounts of payments for compulsory state insurance, conditions transport services, the issuance of a one-time subsidy for the purchase of living space.

The third, most extensive group is formed by the powers of an organizational, administrative, financial and economic nature, related to determining the structure of bodies where the regional civil service is provided, with its management and development, financing and logistics. The constituent entities of the Russian Federation establish a general contingent of employees, establish civil service positions, distribute them by groups and (or) categories, create a personnel reserve and ensure its effective use, organize the selection, placement, rotation, accounting of civil servants, their professional education. Their powers also include the establishment of civil service management bodies, coordination of the personnel policy of state bodies, non-departmental control over compliance with the legislation on civil service; development and implementation of regional programs for the reform and development of the civil service.

In comparison with the powers that the constituent entities of the Russian Federation had in the pre-reform period, the scope of their rule-making activity has noticeably decreased. If earlier the subjects of the Russian Federation actually independently regulated the conditions and procedure for holding a competition, attestation, calculating the length of service in public service, pensions for employees, they had the right to establish additional social guarantees, benefits and incentives, now the corresponding powers are either completely excluded from their competence or significantly curtailed. Thus, the conditions and procedure for holding a competition and attestation, the rules for calculating the length of service in public service, the procedure for maintaining personal files and registers of civil servants are no longer regulated by the legislation of the constituent entities of the Russian Federation, but by Decrees of the President of the Russian Federation. State pensions for citizens who have served in the public service and members of their families will have to be carried out in the manner and under the conditions established by federal law.

The powers available to the subjects of the Russian Federation in the field of regulation of the regional public service are increasingly becoming secondary, derivative. As a rule, these powers can be exercised only on the basis of or taking into account the norms of federal legislation, and therefore the regional regulation itself cannot be anticipatory, but should only have a complementary and subsequent character. For example, the Register of civil service positions of a subject of the Russian Federation must correspond not only to the general classification of civil service positions, but also to the structure of state bodies, names, categories and groups of positions established by the Register of federal civil service positions.

In contrast to the federal civil service, many aspects of which were regulated by Decrees of the President of the Russian Federation, the constituent entities of the Russian Federation created an extensive database of legislative acts. In this regard, one could speak of advanced legislative regulation of the civil service at the level of the constituent entities of the Russian Federation. According to the new federal legislation on the civil service, a number of powers that required exclusively legislative regulation for their implementation (approval of job registers, determination of salaries, provision of additional holidays and other social guarantees) can now be exercised at the subordinate level.

In the pre-reform period, a relatively mild regime of joint jurisdiction developed, in which only framework powers were exercised at the federal level: the foundations of legal regulation, principles, guarantees of citizens' rights were established, general directions joint legislative activities of the Russian Federation and the constituent entities of the Russian Federation and adopted federal regulatory legal acts aimed at implementing the powers of the Russian Federation to regulate only the federal civil service. The constituent entities of the Russian Federation had fairly broad powers to independently regulate the regional public service, to form their own, relatively autonomous system of legislative and other regulatory legal acts, including in the order of advanced regulation.

Today, the regime of joint jurisdiction has become much more stringent - the subjects of the Russian Federation are entitled to exercise only those powers, the list of which is exhaustively indicated in the federal law. In studies on constitutional law, it is noted that such a method of regulating subjects of joint jurisdiction, when all significant issues are regulated by the federation, while only certain powers are delegated to the regional level at the discretion of the federal center, is becoming widespread. It is obvious that in the field of legal regulation of the regional civil service, the same model of delimitation of jurisdiction and powers between the Russian Federation and the constituent entities of the Russian Federation has been constructed.

The result of the last reform of the civil service was a radical update of the legislation on the civil service of the constituent entities of the Russian Federation. Today it is already possible to generalize the experience of the legislative activity of the regions, identify some problems and suggest possible ways to solve them.

New laws on civil service have been adopted in all regions. At the same time, several different approaches to the content of the basic regional laws on the civil service have emerged in legislative practice. In some subjects of the Russian Federation, these laws are adopted in the form of voluminous documents, a kind of collections, in which the norms of federal and regional legislation are consolidated. To a large extent, they simply duplicate the Federal Law "On the State Civil Service of the Russian Federation." Despite the large array of legal norms, their actual regulatory potential is small. In addition, the norms of federal legislation are often reproduced with inaccuracies, distortions, as if the regional legislator is trying to create an “improved local version” of the federal law that is in force in a single subject of the Russian Federation.

Other regions have chosen not to rewrite the federal law, but have focused on regulating only those issues that are really within their competence. The very name of their laws: “On Some Issues of the Civil Service” (Republics of Komi, Tyva, Vologda, Irkutsk, Novgorod regions, Stavropol Territory, Jewish Autonomous Region), “On the regulation of relations in the field of civil service” (Republic of Mari El), “On Features of the Civil Service" (Krasnoyarsk Territory, Sverdlovsk Region), "On the Organization of the Civil Service" (Tambov, Sakhalin Regions) indicates that they do not claim to be a comprehensive regulator of the regional civil service. The Law of the Krasnoyarsk Territory directly indicates an exhaustive list of issues that it regulates: the procedure for assigning class ranks, qualification requirements for length of service, the procedure for maintaining the Register of civil servants, the conditions for providing them with additional guarantees, as well as the rules for calculating retained monetary maintenance. The laws of the Republic of Mari El, Tambov, and Sakhalin regions regulate only the organization of the civil service.

It seems that the adoption of compact laws containing specific legal norms is most preferable. Formerly public service entities. The Russian Federation belonged to their jurisdiction, and only its legal foundations were established by federal law, which implied broad independence of the subjects of the Russian Federation in its regulation. Some authors even suggested adopting civil service codes in all subjects of the Russian Federation. Now, the legal regulation of the regional civil service is assigned to the joint jurisdiction of the Russian Federation and its subjects, and the most key issues are concentrated at the federal level: the general classification of positions and class ranks, the legal status of employees, the procedure for holding a competition, attestation, passing qualification exams, the terms of service contracts, the procedure for their conclusion and the grounds for termination, the rules for calculating the length of civil service, resolving conflicts of interest and considering service disputes. The subjects of the Russian Federation are left with only a number of very specific powers, which are more appropriate to regulate in specific laws and at the sub-legislative level.

It is hardly advisable to adopt a single legislative act (all the more so called the Code) on persons holding public office and on civil service, as is done in the Omsk region. In the Russian legal system, separate blocks of legislation have been formed on persons holding public office, on state civil service and on municipal service, and only in the theory of public administration and legal science, the corresponding types of activity are united by the concept of public service. Strengthening the relationship between the types of public service is certainly necessary, but this should be done not at the regional, but at the national level (in particular, by adopting the Federal Law on the Status of Persons Holding Public Offices of the Subjects of the Russian Federation). In addition, the unification of legal regulation should not consist in direct borrowing of legal norms. The provisions of the Code on Public Positions and the Public Civil Service of the Omsk Region on the conclusion of contracts (obviously, by analogy with service contracts in the civil service) with deputies, members of the Government and other persons holding public positions seem very doubtful.

Based on the analysis of the law-making powers available to the constituent entities of the Russian Federation and taking into account legislative practice, the following general scheme of regional legislation on the civil service can be proposed:

the basic law of the subject of the Russian Federation on the state civil service, which can regulate the following issues:

the competence is distributed between the representative (legislative) body and the highest official of the constituent entity of the Russian Federation in the field of regulation and organization of the civil service;

the composition of the legislation on the civil service of the constituent entity of the Russian Federation was determined (laws and other regulatory legal acts that will be adopted in the development of the basic law on certain aspects of the organization and performance of service are indicated);

clarified the procedure for establishing positions in the civil service of a constituent entity of the Russian Federation;

officials who perform the functions of representatives of the employer are identified;

a list of positions in the civil service of the category "leaders" to be filled for a certain term of office has been established;

the types of additional state guarantees and the main conditions for their provision to employees are fixed;

the status and competence of the public service management body were determined.

Laws and other regulatory legal acts of the constituent entities of the Russian Federation adopted in development of the basic law on certain aspects of the organization and performance of the civil service: registers of civil service positions, laws and other regulatory acts on qualification requirements for positions, on the personnel process and personnel reserve, on the procedure for assigning and preservation of class ranks, on the procedure for secondment of employees, on vacations, on the remuneration of employees.

Some subjects of the Russian Federation regulate by their laws even such issues that could be resolved at the sub-legislative level. So, in the Perm Territory there is a law on the conclusion of contracts for the professional training of personnel for the civil service, in the Vologda Oblast - a separate law on guarantees for employees when moving to another locality, in the Tomsk Region - a law on improving living conditions employees, in the Magadan region - laws on secondment of employees and on the establishment of civil service positions, in St. Petersburg - laws on business trips, transport services, on guarantees for the activities of persons holding public positions and civil service positions, on the correlation of positions and official salaries, for which an additional payment to the pension of former employees is established.

The legislator of the Chelyabinsk region chose a peculiar way for the transition period: long time(until March 2007) did not adopt a new law on the civil service, invalidating most of the pre-reform law on civil service, as a result of which it essentially turned into a law on social guarantees for employees of the region. AT Sverdlovsk region along with the adoption of the law on the specifics of the civil service, the effect of the previous law on the civil service in terms of pensions was retained.

The updating of the legislation of the constituent entities of the Russian Federation on the civil service was associated with the processes of editing and abolishing outdated regulatory legal acts. At the same time, however, the necessary sequence was not always maintained, the boundaries of competence between the Russian Federation and its subjects were respected. Thus, the procedure for holding a competition, attestation, the rules for working with personal data and maintaining personal files for all civil servants are regulated by Decrees of the President of the Russian Federation, while the adoption of regional regulatory legal acts on this topic is not required. Despite this, in the Bryansk region, regulations on the competition and certification of employees were approved, in the Penza and Kamchatka regions - regulations on personal data and personal files of employees.

So far, a number of federal regulatory legal acts on certain aspects of the civil service have not been adopted. There are no federal laws on health insurance and pensions for employees and members of their families; normative legal acts on the ratio of class ranks, on the procedure for calculating length of service, and on additional professional education for employees have not been adopted. In such circumstances, the constituent entities of the Russian Federation are forced, in order to prevent gaps in legal regulation and ensure the rights of employees, to maintain the validity of their legislation, although the regulation of relevant issues is currently outside their competence.

The organization of the civil service of the regions is assigned to their jurisdiction. The constituent entities of the Russian Federation independently determine the structure and staffing of their state bodies, carry out their material and technical support and financing, select and place employees, and manage their activities. To do this, they must resolve a number of important organizational and legal issues related to the definition of officials who are representatives of the employer, clarification of the procedure for establishing civil service positions, conducting qualification exams and attestations, and assigning class ranks. It is necessary to establish the procedure and terms for the transition to new conditions of remuneration, to revise the conditions of medical and social services, etc.

The legislation of the constituent entities of the Russian Federation, as a rule, indicates that the representative of the employer for employees of executive authorities is the highest official of the region (Governor, Head of Administration), for employees of the Legislative Assembly - its Chairman, for other employees - the head of the relevant state body. In Moscow, the representative of the employer for employees of the Legislative Assembly is the head of his apparatus. The representative of the employer may delegate his powers in whole or in part to another official (his deputy, head of the apparatus, division of the civil service and personnel) by issuing an appropriate legal act. So, in the Leningrad region, certain functions of the representative of the employer are delegated to the Vice-Governor, in the Krasnoyarsk Territory - to the Deputy Governor.

Regional legislators have different approaches to the issues of the procedure for establishing positions and maintaining a register of civil service positions, assigning class ranks. In the Ulyanovsk region, positions are established by the Register Law, in the Republic of Mordovia - by the Head of the Republic. Other subjects of the Russian Federation (the Republic of Mari El, Magadan, Novosibirsk, Omsk, Orel, Sverdlovsk, Tyumen regions) proceed from the fact that the register contains only a list of unified job titles classified by state bodies, categories and groups, while the positions themselves are established by other laws or normative legal acts. I think this is correct - in the modern sense, the register of positions acquires rather a summary classification, reference and information, rather than a constituent value, therefore it is more appropriate to entrust its operational maintenance to the head of the region's executive power.

The procedure for establishing positions and maintaining their register is described in detail in the Law “On the Peculiarities of the State Civil Service of the Sverdlovsk Region”. The regulatory legal acts that establish these positions must indicate the name of the state body and the position being established, as well as its category, group and term of replacement.

One of the most pressing organizational and personnel problems is the introduction of effective personnel technologies and modern methods of personnel work in the state civil service, such as; as strategic planning for sustainable career growth, rotation; employees, personnel reserve.

In the message; President of the Russian Federation D.A. Medvedev to the Federal Assembly of November 5, 2008, emphasizes that today's Russia and its future innovative economy, public service, management system; and social services, a new system of formation, a personnel reserve is needed, which will allow attracting; the most talented, creatively thinking and professional people: A special commission has been formed under the President of the Russian Federation to form and train a reserve of managerial personnel. Presidential initiatives have found a response both in the constituent entities of the Russian Federation and in municipalities, where organizational work is being carried out to form regional and municipal reserves of managerial personnel.

The formation of the personnel of the civil service on the basis of the personnel reserve was provided for in the Federal Law "On the System of the Civil Service of the Russian Federation". A number of fundamental provisions relating to the personnel reserve are also contained in the Federal Law "On the State Civil Service of the Russian Federation". These laws establish types of personnel reserve: federal personnel reserve, personnel reserve in a federal state body, personnel reserve of a constituent entity of the Russian Federation, personnel reserve in a state body of a constituent entity of the Russian Federation, Consolidated personnel reserve of the Russian Federation, its goals, basic conditions for formation and use are determined.

In regional and departmental normative legal acts, there is also a different understanding of the personnel reserve, the reserve of managerial personnel. In some cases, the personnel reserve is understood as a list (group) of persons who have passed the selection procedure (Amur, Leningrad, Murmansk regions), in others as a consolidated list of positions and persons selected on a competitive basis who meet the established qualification and other requirements for these positions and are capable of with their business and personal qualities to carry out professional activities in a substituted position (Oryol, Sverdlovsk regions), in the third - as a specially formed personnel reserve (Tyumen region). In a number of subjects of the Russian Federation, special programs formation and training of a reserve of managerial personnel (Republics of Altai, Buryatia, Komi, Khakassia, Moscow, Altai, Primorsky Territory, Amur, Kaliningrad, Novosibirsk, Moscow, Samara, Kemerovo, Smolensk, Chelyabinsk regions). Some regions, following the example of federal government bodies, limited themselves to creating a commission for the formation and training of a reserve of managerial personnel, approving its composition and regulations on it (the Republic of Bashkortostan, the Chuvash Republic,

Arkhangelsk, Penza, Ryazan, Ulyanovsk, Yaroslavl regions, Krasnoyarsk, Khabarovsk regions). Other constituent entities of the Russian Federation adopted a whole “package” of regulatory legal acts, in which they settled both the procedure for the formation, training, and use of a reserve of managerial personnel, and the procedure for the creation and operation of the corresponding commission (Kaliningrad, Kaluga, Leningrad, Tyumen regions). In the Orel and Chelyabinsk regions, the Yamalo-Nenets and Khanty-Mansi Autonomous Okrugs, special Laws on the managerial personnel reserve have been adopted, which provide detailed regulation of the concept, structure, procedure for the formation, maintenance and training of the managerial personnel reserve.

In the Sverdlovsk region, the Decrees of the Governor of the region approved the Regulations on the reserve of managerial personnel, on the procedure for holding a competition for inclusion in the reserve of managerial personnel. In some cases, the same regulations of the constituent entities of the Russian Federation regulate both the issues of the personnel reserve in the civil service and the reserve of managerial personnel.

Such fundamental issues as the terms of being in the personnel reserve (from 1 to 5 years) and the grounds for exclusion from it, categories and groups of positions to be filled from the personnel reserve, forms and methods of working with the reserve are also resolved differently. In a number of constituent entities of the Russian Federation (Republic of Buryatia, Perm Territory, Vologda, Murmansk, Saratov, Tyumen, Chelyabinsk regions), unreasonable restrictions are introduced for inclusion in the personnel reserve in relation to citizens who are not in the civil service, age limits are set (from 30 to 45 years) , the list of cases of out-of-competition admission to the reserve is expanding. In the Law "On the reserve of managerial personnel of the Yamalo-Nenets Autonomous Okrug", the terms of being in the reserve are differentiated depending on age.

It seems to us that the regulatory legal acts on the personnel reserve in the civil service and on the reserve of managerial personnel regulate related, but still different areas of organizational and personnel activities. There are significant differences between the personnel reserve in the civil service and the reserve of managerial personnel. The personnel reserve in the civil service is a legislatively established method of personnel selection, the official channel for entering the civil service. This type of personnel reserve is focused mainly on internal selection, for the most part, it includes persons already in the civil service. This type of reserve is intended for planned personnel replacements, job growth, ensuring the continuity of civil service personnel (including in connection with the inclusion of a mechanism for their rotation), is a career planning tool, a way to increase the motivation of employees, and in some cases (for example, when suspending service contract), as well as social protection.

In contrast, the reserve of managerial personnel has the character of a program-targeted project, created to attract the most promising, professionally trained top management personnel through mainly external selection. In the literature on personnel management, personnel reserves are proposed to be divided into development reserves, functioning reserves, reserves for promotion, strategic, operational reserves. From this point of view, the personnel reserve in the civil service can be characterized as an operational reserve of functioning, and the reserve of managerial personnel as a strategic development reserve. It follows that the personnel reserve in the civil service and the reserve of managerial personnel may coincide, but only in terms of the most important and responsible positions in the civil service of the category "leaders", the reserve for which is formed on an open competitive basis.

The constituent entities of the Russian Federation have the opportunity to save for an indefinitely long time existing system remuneration and material incentives for civil servants. The fact is that articles 50, 51, 55 of the Federal Law "On the State Civil Service of the Russian Federation", which regulate the new conditions for remuneration and monetary incentives, come into force in relation to civil servants of the constituent entities of the Russian Federation in the manner determined by the regions themselves. This has led to the fact that some financially prosperous subjects of the Russian Federation seek to mothball the current system of remuneration of their employees as long as it remains more attractive to them. So, if the vast majority of regions switched to new wage conditions in 2004-2005, then in Moscow such a transition took place only at the end of 2006, in the Krasnoyarsk Territory - in 2007. In the Sverdlovsk region, the former conditions of remuneration of employees with a periodic increase in the size of their official salaries are still in effect.

Individual subjects of the Russian Federation use peculiar methods when regulating the conditions of remuneration of employees. In the Republic of Karelia, the Omsk Region, and also in St. Petersburg, official salaries are determined not in a fixed amount, but by multiplying the base value by a multiplier. In this case, the base value is determined either in a fixed amount, or at the level of the subsistence minimum.

Significant regional differences also arose in the level of additional state social guarantees provided to civil servants. For example, civil servants of the city of Moscow are provided with an extensive list of additional guarantees at the expense of the city budget. On the contrary, due to a budget deficit, the provision of social guarantees, usually related to pensions, for civil servants in a number of regions (Penza, Kaliningrad, Novgorod, Orenburg, Tyumen, Tula, Irkutsk regions) was suspended at various times. In 2009, the law of the Tyumen region on state compulsory insurance of civil servants was suspended.

In essence, at the federal level, only the reform of the fundamentals of the legal regulation of the civil service as a whole has been carried out. At the same time, having established that the organization of the civil service of the constituent entities of the Russian Federation is under their jurisdiction, and the constituent entities of the Russian Federation are state employers of "their" civil servants, the federal government authorities thus, as it were, declared that the regions themselves should take care of legal support, financial , material and technical and personnel development of "their" civil service. And each subject of the Russian Federation carried out the reform of the legislation on the civil service according to its own plan, understanding and in its own time. The unified coordinating, organizing, methodological role of the federal center was extremely weak.

Many activities of the Federal Program "Reforming the Civil Service of the Russian Federation" - such as improving financial and economic support, optimizing the number, improving the staffing and raising the professional level of employees, creating material incentives, organizational and technical conditions for the effective performance of their official duties were focused only to the federal civil service. The constituent entities of the Russian Federation must adopt their own regional programs for the reform and development of the civil service. An analysis of these programs shows that they generally set similar tasks and provide for basically similar measures, of course, with adjustments for regional specifics. A unified coordination of this important area of ​​state building at the federal level is not envisaged, which leads to unjustified dissipation of funds, inconsistency in the content and timing of reforming the regional civil service.

Meanwhile, the civil service of the Russian Federation is a single nationwide system, for the effective functioning, sustainable and uniform development of which a common development strategy, constant coordination of the efforts of the center and regions, and consolidation of resources are required. Particular attention is required to the civil service of problem regions that are experiencing a shortage of highly qualified personnel, budgetary funds, do not have opportunities or incentives to intensify the processes of reforming the civil service.

Reforming the civil service of the constituent entities of the Russian Federation should not only consist in a radical restructuring of legislation. One of the main directions of the reform of the regional civil service is the creation effective system management, improvement of its financial, economic and logistical support, reorganization of wages, material incentives for employees.

In the light of the foregoing, a special federal targeted program is needed to promote the reform of the civil service of the constituent entities of the Russian Federation. Such assistance can be provided at the level federal districts, carried out in the form of coordination of activities, dissemination of information, development of specific recommendations, development of model drafts of regulatory legal acts, provision of methodological and organizational assistance, etc. In some cases, measures to reform the regional civil service may be additionally financed from the federal budget and federal off-budget funds.

CONCLUSION

The paper attempts to comprehensively study the problems of legal regulation of the public service of the Russian Federation, which made it possible to substantiate and formulate a number of theoretical conclusions and proposals for improving the legislation:

In the state civil service, private and public are combined - non-independent, hired labor, which is organized by the state, materially and financially supported by budget funds, should be carried out in the national interests and therefore has a public functional significance. The dualistic nature of the state civil service is also expressed in the fact that it is a labor profession that has a public, public interest as its object; and at the same time serves to satisfy the individual, personal, in other words, private needs of the subjects of this activity - civil servants.

Consequently, the activities of employees should be organized, regulated and evaluated taking into account the fact that this service is carried out in the form of professional work, contains a social and labor component and therefore needs adequate means and methods of organization, management, professional and personal motivation, stimulation, control, that is, it implies the use of labor law instruments in its regulation.

The most correct would be a comprehensive, intersectoral characterization of the state civil service: as a public institution for the practical implementation of the tasks and functions of the state, carried out through a special type of professional official labor activity, the content of which is the provision of public services, ensuring the execution of the powers of state bodies and persons holding public positions.

Distinctive features of the state-service organization of labor are:

specialization of professional labor activity on ensuring the execution of the powers of state bodies;

belonging to the system of organization of state (public) power;

predominantly state-regulatory regulation of the organization and working conditions;

the use of specific methods of organization, division and cooperation of labor, training, selection, distribution, redistribution of personnel, special legal forms of involvement in labor;

the existence of special legislation that singles out a public service organization as a special type (category) of professional labor activity, establishing a special legal status of employees, their working conditions and social protection.

State civil service - a type of public service: a collective concept that covers the state and municipal service, as well as the activities of persons holding state and municipal positions. The proposed concept of public service is constructed on the basis of such criteria as the focus of activities on the implementation of socially or stately significant functions; belonging to the existing organizational and legal forms of public authority, the presence of persons in the public service of a special status, special conditions for admission to service, its passage and termination.

In the public service system, it is necessary to distinguish between classes of independent work, the regulation of which should be carried out according to the public law model (professional activities of persons holding state and municipal positions), and hired service and labor activities (state civil and municipal service), where they can be used as a labor law model. , and combined (mixed) models of regulation. It is in the non-independent, i.e. The subordinate nature of the civil service in relation to the activities of persons holding public office is a potential danger of its degeneration from the institution of serving the state and society into the sphere of patronage services for the internal interests and personal needs of the relevant officials.

The general trend in the development of Russian legislation should be the gradual smoothing out of unreasonable differences in the status and conditions of professional activity of public servants. This requires the development of a system of similar restrictions and prohibitions for all persons in the public service, the elimination of disproportions between the degree of responsibility of their work, its effectiveness and the level of social and legal protection, the strengthening of guarantees for the stability of powers, prohibitions of arbitrary interference in official activities, while simultaneously increasing the effectiveness of legal liability mechanisms. , the use of some general methods and forms of selection, movement of personnel, similar methods of personnel work. The public service as a whole needs to strengthen the authority and trust of society, increase the professional level, increase openness, accessibility of information about its activities, and introduce effective anti-corruption mechanisms addressed equally to all persons in the public service.

The official organization of the state civil service is a way of cooperation and division of labor, has not an intra-collective, but a national scale and is based on the principles of the unity of the foundations of the official organization of the civil service at the federal and regional levels, its correlation with the official organizations of the military and law enforcement services and the relationship with the official organization of the municipal services; the stability of the official organization, its conditionality by the tasks and functions of the state, the system and structure of state bodies; equality of conditions for access to positions in the civil service, taking into account professional and business qualities; the certainty of the official function of a civil servant, the inadmissibility of its arbitrary change.

The position of the civil service is the primary organizational, functional and social service element of the state civil service, through which the general affiliation of a citizen to the civil service system, its specific type and level is determined; the place of the employee in the service hierarchy; the nature and degree of participation in the implementation of state functions, the exercise of the competence of the state body; a specific social and service role in the division of labor in a given state body; conditions of service, as well as types, conditions and amounts of remuneration and state social guarantees provided to the employee.

Functionally, the position of the civil service is the initial, initial form of division and cooperation of official duties and powers, in the organizational sense it serves as the primary (grassroots) structural link of the state service organization, in social terms it acts as a determining factor for establishing working conditions and social guarantees for employees.

The role of the employing state as a party to public service legal relations is expressed in the fact that it is the founder of the system of state bodies and the owner of the budget from which the civil service is financed, establishes (through appropriate regulatory regulation) the general conditions for access to the service and its passage, the status and rules of conduct for employees, the amount and terms of payment for their work, the provision of state social guarantees. As an employer, the state takes care of rational organization and efficient use of the public service, which should be carried out in the name of the public good and in the public interest.

The representative of the employer, as a party to official labor and service-social legal relations, makes local regulatory and legal regulation of the conditions of service (approves the staff, work schedule, conditions for encouraging and bonuses for employees), carries out organizational and administrative activities (approves the official regulations of employees, selects, places and moves personnel), ensures the efficiency of official activities, observance of discipline in the civil service (evaluates the activities of employees, brings them to material and disciplinary responsibility, dismisses them from service).

The content of the concept of organization of the civil service includes the following components: the formation of its system and organizational and functional structure, the establishment of official organization, the distribution of duties and powers; staffing with qualified personnel, ensuring their accounting, professional training (retraining), rational deployment and timely rotation, creating optimal conditions for effective work, control and adjustment of their professional activities and behavior.

The organization of the service consists in the systematic personnel work of officials of state bodies on the formation of the structure and staffing, recruitment (competitive selection, personnel reserve, conclusion of service contracts, carrying out verification activities, registration of admissions for the organization of testing, internships); service (certifications, qualification exams, promotions, transfers and promotions, retraining, advanced training, assignment of class ranks to employees, personal files); supervision and control over the passage of service, compliance with the legislation on the civil service (settlement of conflicts of interest, internal investigations, verification of compliance with restrictions on service, consideration of proposals and complaints from employees); providing employees and members of their families with social guarantees (medical, health resort, transport services, etc.), dismissal from service (carrying out procedural and organizational measures in connection with the reorganization of state bodies, employment and dismissal of employees, organization of pensions).

The current method of legal regulation of labor in the civil service is poorly adapted to its specifics.

It is necessary to redistribute the functions of normative regulation, staffing, practical organization and management of the civil service from the departmental and local to the federal and regional levels; improving the mechanisms of disciplinary liability (in particular, delineating the concepts, grounds and conditions of liability for committing disciplinary offenses, corruption offenses, non-compliance with prohibitions, restrictions, requirements for official conduct, establishing the obligation of the representative of the employer to bring to justice employees who have committed relevant violations). In the field of legal regulation of labor in the civil service, the following principles apply:

providing employees with universally recognized social and labor rights and freedoms;

state guarantee of working conditions and social protection of employees;

ensuring the right of employees to participate in the establishment of working conditions and labor management,

equal access to public service;

appointment to civil service positions based on merit and business qualities;

competition in the selection of civil service personnel, the effectiveness of their use;

protection of employees from unlawful interference in their professional work activities;

a combination of stability and turnover of personnel in the civil service;

dependence of the level of social and legal protection of employees on the degree of responsibility, professionalism and effectiveness of their work;

state management of personnel policy in the civil service.

In order to more fully implement the principles of the civil service, a number of changes need to be made to the legislation on the civil service. In particular, Article 40 of the Federal Law "On the State Civil Service of the Russian Federation" should indicate that the conclusion of a service contract in violation of the competitive procedure is the basis for the release of a citizen from the civil service. Officially approved methods for evaluating contestants, recommendations on the formation and procedure for maintaining a personnel reserve and a register of employees at the level of both state bodies and in the public service system of the constituent entities of the Russian Federation and the Russian Federation as a whole are needed. It is advisable to provide for the formation of a reserve of candidates for the civil service from among the contestants who did not win the competition, but were highly appreciated by the competition commission. The procedure for announcing a competition, the status and procedure for the formation of competition commissions should be reviewed.

In particular, it is proposed that decisions on the announcement of a competition, the approval of the composition of the competition commission, as well as on the appointment to a civil service position based on the results of the competition, should be made not by the heads of state bodies, but by special bodies for managing the state civil service operating at the federal and regional levels.

BIBLIOGRAPHY

Regulatory legal acts, judicial practice

1.Constitution of the Russian Federation. Adopted by popular vote on December 12, 1993

2.Code of the Russian Federation on Administrative Offenses dated December 30, 2001 No. 191-FZ

3.Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ.

4.Federal Law of July 31, 1995 No. 119-FZ “On the fundamentals of the public service of the Russian Federation // SZ RF. 1995. No. 31. Art. 2990; 1999. No. 8. Art. 974.

5.Federal Law of May 27, 2003 No. 58-FZ "On the system of public service of the Russian Federation" // SZ RF. 2003. No. 22. Art. 2063; 2006. No. 46 (part 1). Art. 4437. 2007. No. 49. Art. 6076.

6.Federal Law July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” // Rossiyskaya Gazeta 2004. July 31. SZ RF. 2008. No. 52 (part 1). Art. 6235.

7.Decree of the President of the Russian Federation of April 29, 1996 No. 604 “On approval of the Regulations on holding a competition for filling a vacant public position in the federal public service” // SZ RF. 1996 No. 18. Art. 2115.

8.Decree of the President of the Russian Federation of December 31, 2005 No. 1574 “On the Register of Positions of the Federal State Civil Service” // SZ RF. 2006. No. 1. Art. 118. 2008. No. 52. Art. 6363.

9.Federal program "Reforming the civil service of the Russian Federation for 2003-2005". Approved by Decree of the President of the Russian Federation of November 19, 2002 No. 1336 // Rossiyskaya Gazeta 2002. November 23.

10.Federal program "Reforming and developing the public service system of the Russian Federation (2009-2013). Approved by the Decree of the President of the Russian Federation of March 10, 2009 No. 261 // Rossiyskaya Gazeta. 2009. March 13.

11.Regulations on the federal public service. Approved

12.Decree of the President of the Russian Federation of December 22, 1993 No. 2267 // SAP RF. 1993. No. 52. Art. 5073.

Books, monographs, textbooks

13.Avakyan S.A. Constitutional law of Russia: Training course: In 2 volumes. T 1. M., 2007.

14.Administrative reform in Russia: a scientific and practical guide / Ed. S.E. Naryshkina, T.Ya. Khabrieva. M., 2006.

15.Administrative Law: Textbook / Ed. JI.JI. Popova, M.S. Studenikina. M., 2008.

16.Administrative Law of Russia: Textbook / Ed. B.N. Gabrichidze. M., 2009.

17.Administrative Law of Russia: A Course of Lectures / Ed. N.Yu. Khamaneva. M., 2008.

18.Alekseev S.S. General Theory of Law: Textbook. M., 2009.

19.Alekhin A.P., Karmolitsky A.A. Administrative law of Russia. First part: Textbook. M., 2009.

20.Anti-corruption: President Medvedev proposed a program against corruption / Ros. gas. 2008. June 5.

21.Arkhipov V. State vacancies and private selection // Business Advocate. 2005. No. 5.

22.Astanin V.V. Principles of combating corruption in Russian legislation // Legal world. 2009. No. 2. S. 44.

23.Atamanchuk G.V. essence of public service. M., 2008.

24.Atamanchuk G.V. Theory of public administration: a course of lectures. M., 2009.

25.Baglay M.V. Constitutional Law of the Russian Federation: Textbook. M., 2009.

26.Barannik T.V. To the question of the formation of the public service of the Russian Federation // Legal world. 2009. No. 1.

27.Bartsits I.N. Constitutional and legal support of public administration reform // Constitutional and municipal law. No. 24.

28.Bahrakh D.N. Peculiarities of disciplinary liability as a type of legal liability // Modern law. 2008. No. 10.

29.Bahrakh D.N., Tataryan V.G. Administrative Law of Russia: Textbook. M., 2009.

30.Bahrakh D.N., Rossinsky B.V., Starilov Yu.N. Administrative law. Textbook for high schools. M., 2006.

31.Bachilo I.L. Information law. Tutorial. M., 2001.

33.Bocharnikov I.V. Foreign experience in combating corruption // State power and local self-government. 2008. No. 9.

34.Bratanovsky S.N., Epifanov A.E., Saneev V.A. Problems of improving the municipal service in Russia. M., 2007.

35.Bugrov L.Yu., Vasilyeva Yu.V. Labor law and social security law - related branches of law // Actual problems of legal science and practice. Part 1. Perm, 2004.

36.Buravlev Yu.M. Constitutional and legal foundations of the public service and the expediency of its integration with the municipal service // Constitutional and municipal law. 2006. No. 10.

37.Buyanova M.O. Labor Law: Textbook. M., 2009.

38.Buyanova M.O., Kobzeva S.I., Kondratieva Z.P. Social Security Law: Textbook. M., 2008.

39.Gabrichidze B.N., Chernyavsky A.G. Constitutional law of Russia. Textbook. M., 2007.

40.Gabrichidze B.N., Chernyavsky A.G. Service Law: Textbook. M., 2004.

41.Glazunova N.I. System of State and Municipal Administration: Textbook. M., 2009.

42.Civil service in the countries of the main legal systems of the world: Normative acts / Ed. A.A. Demin. M., 2008.

43.Public Service of the Russian Federation: First Steps and Prospects / Ed. G.V. Atamanchuk. M., 1997.

44.Civil service of the main capitalist countries. M., 1977.

45.Grazhdan V. Civil Service as a Service Institute // Public Service. 2004. No. 3.

46.Citizens V.D. State civil service: Textbook. M., 2009.

47.Gusev A.V. Russian State Civil Service: Problems of Legal Regulation: Monograph. Yekaterinburg, 2005.

48.Gusov K.N., Tolkunova V.N. Labor Law of Russia: Textbook. M., 2006.

49.Dedkova T.A. Features of labor regulation of civil servants of the constituent entity of the Russian Federation: Dis. ... cand. legal Sciences. Tomsk, 2000.

50.Ershova E.A. Changing the labor relations of civil servants // Labor law. 2006. No. 4.

51.Ershova E.A. Labor relations of state civil and municipal employees in Russia. M., 2008.

52.Zakharov V.V. Decisions of the Constitutional Court of the Russian Federation as a source of constitutional law. M., 2005.

53.Zakharov M.JL, Tuchkova E.G. Russian Social Security Law: Textbook. M., 2001.

54.Ivanova S.A. Legal regulation of labor relations of civil servants: Dis. ... cand. legal Sciences. Yekaterinburg, 2002.

55.Ivantieva G.A. Reforming the civil service. personnel aspect. M., 2005.

56.Ignatyuk H.A., Zamotaev A.A., Pavlushin A.V. Municipal law. Textbook. M., 2005.

57.Ishekov K.A. Features of the constitutional principle of separation of powers in the constituent entities of the Russian Federation // Centralism, democracy, decentralization in the modern state: constitutional and legal issues. Materials of the international scientific conference. M., 2006.

58.Karpova E.V. Problems of legal regulation of the institution of public service // State power and local self-government. 2007. No. 4.

59.Kimlatsky O.A., Machulskaya I.G. On the state of the fight against corruption in the Russian Federation // State power and local self-government. 2008. No. 8.

60.Kiselev I.Ya. Dushnikov A.M. Labor law of Russia and foreign countries. International Labor Standards: Textbook. M., 2008.

61.Kozbanenko V.A. Legal support of the status of state and municipal employees: general and special // State and Law. 2003. No. 1.

62.Kozbanenko V.A. Public law nature of the status of civil and municipal employees: general and special // Constitutional and municipal law. 2003. No. 3.

.Kozlova E.I., Kutafin O.E. Constitutional Law of Russia: Textbook. M., 2009.

Introduction

Chapter 1 Legal nature of relations in the sphere of public civil service

1 The concept of civil service

2 Correlation between the norms of administrative and labor law in the regulation of relations in the field of public civil service

1 Admission to the state civil service

2 Features of service time and rest time of civil servants

3 Features of changing and terminating a service contract

Conclusion

Introduction

In modern socio-economic conditions, in connection with the aggravation of social problems, the role and importance of the state civil service is especially increasing. It faces new tasks aimed at creating conditions for observing democratic legal principles in society, ensuring its stability, and strengthening the protection of the legitimate rights and freedoms of citizens.

The new tasks facing the public service predetermine a new attitude towards civil servants performing public service. The successful professional activity of civil servants in the implementation of the functions of the state largely depends on their legal status. In this regard, the problem of improving the legislation that determines the legal status of civil servants is of particular relevance.

The legislation on civil service is aimed at creating incentives for conscientious and proactive performance of official duties, introducing the necessary restrictions and prohibitions, and establishing adequate remuneration for the efforts expended. These factors, in turn, directly affect the results of the professional activities of civil servants and, consequently, the implementation of the functions assigned to it by the relevant state body.

Among the problems of legal regulation of the state civil service, a special place is occupied by the problem of determining the sectoral affiliation of public relations that develop in connection with the implementation of professional service activities, and, therefore, the ratio of the norms of administrative and labor legislation applied to them. The attribution of relevant social relations to the subject of a particular branch of law is of great importance for building a harmonious legal system, differentiation of the methods of legal regulation used, application of the conceptual apparatus inherent in this industry, elimination of possible gaps in legal regulation and, ultimately, for the formation of a clear and expedient law enforcement practice. However, to date, this problem has not been theoretically solved.

The object of this thesis research is public relations arising in the field of public civil service.

The subject of the study is a set of legal norms governing relations arising in the field of the civil service, and in particular relations relating to admission to the civil service, working time and rest time, changing and terminating a service contract, as well as the law enforcement practice that develops on their basis.

The purpose of the study is to identify the sectoral affiliation of the legal norms governing the relations of the state civil service, as well as the features of the legal regulation of the labor of state civil servants.

This goal is achieved by solving a number of interrelated theoretical and practical problems, the most significant of which are:

identification of the essence and content of service relations arising in the civil service;

determination of the correlation between the norms of labor and administrative law applied to official relations;

assessment of the act of appointment to a position as a legal fact that gives rise to a public-service legal relationship;

establishing the role of the service contract in determining the content of the service-labor relationship;

identification of features of service time and rest time of civil servants;

identifying the features of changing and terminating a service contract in the state civil service.

The diploma uses separate techniques and methods of system analysis, as well as private law methods (comparative legal, technical legal, etc.).

The study used the general theoretical provisions set forth in the works on general theory state and law, administrative, labor law, management theory, as well as monographs.

When solving the problems posed in the diploma, the works of scientists were used: G.V. Atamanchuk, D.N. Bakhrakh, V.D. Grazhdan, A.A. Grishkovets, A.B. Demina, S.A. Ivanova, A.M. Kurennogo, S.P. Mavrina, A.F. Nurtdinova, A.F. Nozdracheva, A.M. Obolonsky, D.M. Ovsyanko, O.N. Sadikova, Yu.N. Starilova, R.O. Khalfina, E.B. Khokhlova, L.A. Chikanova and others. The normative base of the thesis work is: the Constitution of the Russian Federation, ILO conventions, the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts containing labor law norms, federal laws and other regulatory legal acts regulating official relations in the public service . The resolutions of the Constitutional Court of the Russian Federation and the Plenum of the Supreme Court of the Russian Federation, the decisions of the Gorno-Altai City Court of the Altai Republic, the decisions of the Judicial Collegium for Civil Cases of the Supreme Court of the Altai Republic concerning the relations of the state civil service are analyzed.

This thesis consists of an introduction, two chapters, a conclusion and a list of references and references.

Chapter 1. Legal nature of relations in the field of public civil service

1.1 The concept of the civil service

Public service is not an invention of our days. The beginning of the modern civil service of the European type, which has always included the civil service of Russia, is associated with the emergence of territorial states, the development of the state apparatus, the introduction of a monetary system and taxes on the population. The state regulates all aspects of social relations. It entrusts the performance of its tasks for a fee to specially trained persons - officials. Creator of the public service Russian state is Peter I. Since the approval of the Table of Ranks by Peter I (1722) and until the February Revolution in Russia, there was a civil service based on the principles of the monarchy. During the Soviet period, the civil service, covering precisely the personnel of the state administration, was never created. Relations between an employee (employee) of a state body and the state body itself were regulated by labor legislation. In Soviet times, the concept of "public service" was interpreted very broadly and vaguely. This concept denoted any activity in the structure of state organizations, whether it was the activity of managerial personnel or economic and technical units serving this managerial personnel, as well as the activities of teachers, doctors, military, etc. Anyone who was employed in such a service was called "public servants".

In the course of reforming public administration in Russia, it was possible to solve the primary problems of restructuring the apparatus of state power and adapt it to a new stage in the development of the country.

The state administrative power in Russia was called differently. Until May 2003, the administrative structures of all state bodies, as well as military and law enforcement units, in accordance with the Federal Law "On the Fundamentals of the Public Service of the Russian Federation" dated July 31, 1995 No. 119-FZ, were called the public service. But after the adoption by the Federal Assembly of the Federal Law "On the system of public service of the Russian Federation" dated May 27, 2003 No. 58-FZ (hereinafter Law No. 58-FZ), it was divided into three types: civil service, military service and law enforcement service.

According to Article 3 of the Federal Law "On the State Civil Service of the Russian Federation" dated July 27, 2004 No. 79-FZ (hereinafter Law No. 79-FZ), the state civil service of the Russian Federation is a type of public service, which is a professional service activity of citizens of the Russian Federation in positions the state civil service of the Russian Federation to ensure the execution of the powers of federal state bodies, state bodies of the constituent entities of the Russian Federation, persons holding public positions of the Russian Federation, and persons holding public positions of the constituent entities of the Russian Federation.

From said definition we can conclude that the state civil service is, firstly, a professional activity, i.e. it is a profession for civil servants and requires certain training, obtaining appropriate special education, as well as subsequently permanent engagement in this type of activity. And, secondly, this definition indicates the content of this professional activity, namely, it is aimed at ensuring the execution of the powers of federal state bodies and state bodies of the constituent entities of the Federation, as well as persons holding public positions of the Russian Federation, and persons holding public positions of subjects Russian Federation.

As for military service, according to Article 6 of Law No. 58-FZ, this is a type of federal public service, which is a professional service activity of citizens in military positions or non-military positions in cases and under the conditions provided for by federal laws and (or) regulatory legal acts of the President of the Russian Federation, in the Armed Forces of the Russian Federation, other troops, military (special) formations and bodies performing the functions of ensuring the defense and security of the state. Such citizens are assigned military ranks.

The law enforcement service is also a type of federal public service, which, according to Article 7 of Law No. 58-FZ, is a professional service activity of citizens in law enforcement positions in state bodies, services and institutions that perform the functions of ensuring security, law and order, and combating crime for the protection of the rights and freedoms of man and citizen. Such citizens are assigned special ranks and class ranks.

Obviously, the military and law enforcement services, along with other branches of socially necessary activities, are controlled by state bodies. If we are talking about the army, then the latter include the Ministry of Defense, the administration of military districts, regional and district military commissariats. The military leaders of directly military formations, units and subdivisions - from the army to the platoon - do not participate in state administration and therefore are simply called military personnel. Similarly, the issue is resolved with law enforcement officers.

Law No. 58-FZ uses the concept of "system", which includes three types of public service. But these species are not related to each other in any way. They are united only by the name "public service". They do not have a single governing body, just as there are no uniform regulatory foundations. This applies equally to the civil service.

According to paragraph 2 of Article 3 of Law No. 79-FZ, the state civil service of the Russian Federation is subdivided into the federal state civil service and the state civil service of the constituent entities of the Russian Federation.

Legal regulation and organization of the federal civil service in accordance with paragraph 4 of Article 2 of Law No. 58-FZ are under the jurisdiction of the Russian Federation, and the legal regulation of the civil service of the constituent entities of the Russian Federation is jointly administered by the Russian Federation and the constituent entities of the Russian Federation, and its organization is administered by the constituent entities of the Russian Federation Federation.

It should be noted that in accordance with Article 15 of the Constitution of the Russian Federation (hereinafter referred to as the Constitution of the Russian Federation), the generally recognized principles and norms of international law, as well as international treaties of the Russian Federation, are part of the legal system of the Russian Federation. With regard to the civil service institution, paragraph 2 of Article 5 of Law No. 79-FZ defines this ratio as follows: "If an international treaty of the Russian Federation establishes rules other than those provided for by federal law, then the rules of the international treaty apply."

In accordance with Article 13 of Law No. 79-FZ, a civil servant is a citizen of the Russian Federation who has assumed obligations to perform civil service. A civil servant carries out professional service activities in civil service positions in accordance with the act of appointment to a position and with a service contract, and receives a financial allowance at the expense of the federal budget or the budget of a constituent entity of the Russian Federation.

According to Chapter 3 of Law No. 79-FZ, the legal status of civil servants includes the basic rights and obligations of a civil servant, as well as restrictions and prohibitions related to the civil service, the requirement for official behavior of a civil servant and the settlement of conflicts of interest.

In addition, in accordance with Article 21 of Law No. 79-FZ, citizens who have reached the age of 18, speak the state language of the Russian Federation and have not reached the age limit for civil service - 65 years, have the right to perform state civil service.

Unlike the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), which allows employment, as a general rule, from the age of 16, a citizen has the right to enter the civil service only from the age of 18, which is due to the specifics of the professional activity of a civil servant, his higher, in comparison with other employees, responsibility for the performance of assigned functions.

The establishment of an age criterion for entering the civil service and being in the civil service has raised the question of whether this is discrimination. The requirement to comply with the age criteria for admission to the civil service and dismissal from it upon reaching the age limit for being in the civil service has been repeatedly challenged in the Constitutional Court of the Russian Federation as inconsistent with the Constitution of the Russian Federation.

So, for example, the Constitutional Court of the Russian Federation, in its ruling of October 3, 2002 No. 233-O, established that the equality of all before the law and the court, guaranteed in parts 1 and 2 of Article 19 of the Constitution of the Russian Federation, as well as the equality of the rights and freedoms of man and citizen regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations and other circumstances, does not prevent the establishment of differences in the legal regulation of labor (origin of service) in relation to persons belonging to to categories of different conditions and type of activity. Such distinctions based on specific (qualification) requirements associated with a particular job, according to paragraph 2 of Article 1 of the ILO Convention "On Discrimination in Employment and Occupation" dated June 25, 1958 No. 111, are not considered discrimination. Consequently, the establishment of an age limit for holding a public position, as determined by the specifics of professional activities to ensure the execution of the powers of state bodies, cannot be assessed as a discriminatory restriction of constitutional rights.

From the foregoing, it can be seen that the state civil service, as a professional activity of a citizen, has its own specifics, which will be discussed in the next chapter when considering the features of the state civil service.

2 Correlation between the norms of administrative and labor law in the regulation of relations in the field of public civil service

In the course of the discussion about the ways of development and improvement of the legislation regulating the issues of the state civil service, three main positions emerged among scientists dealing with this issue.

The first is put forward and substantiated by specialists in the field of labor law, such as S.A. Ivanov, A.M. Kurennoy, S.P. Mavrin, E.B. Khokhlov and others. Its essence is that the relations of civil servants arising in connection with entering the civil service, its performance and termination are nothing more than labor relations. Therefore, speaking about the improvement of these relations, it is necessary, applying to civil servants the general norms of labor legislation, in special law provide for them only the features of legal regulation based on the specifics of their official activities.

In this case, the approach of specialists in the field of labor law is consistent with the current Russian labor legislation, namely, Article 11 of the Labor Code of the Russian Federation, which provides that the effect of labor legislation and other acts containing labor law norms applies to state civil servants with the features provided for by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation on the civil service, as well as the ILO Convention of June 27, 1978 N 151 "On the protection of the right to organize and procedures for determining the conditions of employment in the public service", considering civil servants as hired workers.

The second position is put forward and justified by some scholars in the field of administrative law. Such as A.F. Nozdrachev, G.V. Atamanchuk, A.A. Grishkovets and others. The essence of this position is that the civil service as a public law institution should be an integral system based on serving the state as a whole, and not a separate state body. Relations in the public service are relations of duty, duty, fidelity. Public service relations in real life act exclusively as state and administrative legal relations, relations of service and subordination of civil servants exclusively to the state.

To implement these ideas, the supporters of this position believe, it is necessary to change the very method of regulating relations in the sphere of public service - to abandon the dispositive method as much as possible in favor of the imperative one. It is necessary to gradually move away from the existing situation, when civil servants are actually considered as ordinary employees with only special legal status.

The future legal regulation of the civil service, in their opinion, is seen not in the subsidiary borrowing of the norms of various industries, but in the transition to regulation exclusively by the norms of special systematized administrative legislation. We should not talk about delimitation, but about consistent displacement and, ultimately, about the complete replacement of labor law norms (still regulating a large part of relations in the civil service) with administrative law norms. At the same time, it is important that the concepts of labor legislation be replaced by special terms contained in the law on public service.

Moreover, among scientists in the field of administrative law there is no single position on this issue, which to a certain extent indicates the vulnerability of the position of supporters of the idea of ​​regulating service relations exclusively by the norms of administrative legislation.

Scientists involved in the study of problems of administrative law and, in particular, who have chosen as the object of their study a block of legal norms regulating state and municipal service, are making attempts to substantiate the fact of the emergence in the domestic legal system of such a new branch of law as service law.

Yu.N. Starilov, recognizes the civil service as a complex institution, including sub-institutions, whose activities are regulated by special laws dedicated only to the civil service. Consequently, the public service includes the norms of many legal branches that regulate public service relations. Yu.N. Starilov first introduced the concept of "service law" into scientific circulation, but interpreted it as a set of legal norms, an institution and a sub-branch of administrative law. Exploring service legislation, he demonstrated an innovative approach to understanding service-legal issues. In his opinion, the multi-branch regulation of state-service relations creates the prerequisites for raising the question of service law as an independent branch of Russian law.

He defines the service law itself as the right of public service or, more precisely, the right of public service (state and municipal service). This sub-branch of administrative law regulates public service relations that develop in public service bodies regarding the organization and functioning of the public service, the exercise of the competence of state bodies and local governments.

Yu.A. Tikhomirov considers it possible to interpret the civil service in the aspect of administrative law as the organization of the constant professional activity of employees in exercising the powers of both state authorities and other state bodies and institutions of a public nature formed by them.

Gabrichidze B.N., Chernyavsky A.G. they believe that service and administrative law have differences in the subject of legal regulation, since service law regulates a complex of social relations arising in the process of organizing and functioning of the state and municipal service. Administrative law - in the sphere of organization and functioning of the executive branch. These scientists, arguing about the scale and complexity of social relations regulated by the norms of service law, consider it possible to recognize it as a special part of administrative law and a contender for the title of an independent branch of law, which at the same time is part of the system of administrative and legal regulation.

Based on the above, we can conclude that Gabrichidze B.N., Chernyavsky A.G. recognize the possibility of regulating relations in the sphere of state and municipal service by the norms of service law, but they cannot decide whether "service law" is a branch of law, or only a sub-branch of administrative law.

Conducted by L.A. Chikanova's analysis of the arguments expressed in favor of regulating service relations exclusively by the norms of administrative law showed that, as a rule, they are based on either purely ideological justifications or declarative judgments. When an attempt is made to substantiate the ideas expressed from the standpoint of the theory of law or current legislation, including labor legislation, there is a clear contradiction in judgments, an incorrect or inaccurate interpretation of the relevant legal norms.

Let's consider one of these positions, namely: "state-service relations in real life act exclusively as state and administrative legal relations, and therefore cannot be regulated by labor law."

A.F. Nozdrachev writes: "Labor law as a branch of private law does not meet the basic conditions of subsidiary application in relation to civil servants. The interpretation of entering the civil service by the type of relationship of employees for hire is unacceptable, because the relevant state body and the appointed person do not create and did not intend to create private law relations In these relations, the actual employment relationship is not applicable, because relations in the public law sphere arise on the basis of an act of a subject of public law (in this case, on appointment to a position), and not a private law contract (in this case, employment). Appointment to a position is determined by law... Of course, there is an agreement upon entering the civil service, but its essence is limited to the consent of the citizen to enter the service and the subject of public law to accept it. values, since he is obliged to fully comply with the organizational requirements of the relevant subject of public law.

However, the nature of labor relations presupposes their regulation both in accordance with the principles of equality (which are manifested in the formal equality of the parties to the employment contract and freedom of labor), and on the basis of power-subordination relations (manifested, in particular, in the subordination of the employee to the labor schedule, orders and instructions employer, in protecting the employee by legal norms that guarantee him a certain level of working conditions). This circumstance is generally recognized in the science of not only labor, but also other branches of law.

The presence in the legal status of civil servants of these elements confirms the identity of labor relations and service relations in the civil service. Whatever role is assigned to the contract, its presence in itself introduces a private law element into the emerging relations, which is alien to administrative law (as public law).

A similar position is expressed in the literature on administrative law, where, in particular, it is said that administrative law regulates such social relations, within which, in principle, the legal equality of their participants is excluded.

A citizen, entering the public service, acts precisely as a free and equal subject in relation to the other side. The agreement of the parties determines the position to which he enters, and some other conditions. As for the restrictions established by law, they apply both to a civil servant and to the other side of the service relationship - the representative of the employer. For example, without the consent of the employee, the conditions stipulated by the contract cannot be changed, in particular, he cannot be transferred to another position, etc.

As a justification for the impossibility of regulating the work of civil servants by the norms of labor legislation, some experts in the field of administrative law also consider such a specificity as the specifics of the professional activities of civil servants.

A.A. Grishkovets and N.M. Kazantsev, from the definitions of the civil service given in Laws N 58-FZ and No. 79-FZ, conclude that civil servants perform not a labor function, but a function of the state, which predetermines their public law status. Entering the civil service, they exercise not their right to work or free disposal of their abilities to work, but the right to equal access to public service, the authors note. And this is an independent form of realization of the constitutional right of a citizen of the Russian Federation to participate in government.

It should be noted that this position cannot be correct, due to the fact that in accordance with the Decree of the President of the Russian Federation of March 9, 2004 N 314 "On the system and structure of federal executive bodies", the function of governing the state is performed by the relevant state bodies.

State bodies for the implementation of the state functions assigned to them employ (employ) citizens who have a vocational education corresponding to the profile of the state body. At the same time, a civil servant is endowed with a certain range of official duties in accordance with the position he holds, that is, he actually performs the corresponding labor function in this body, which, according to Article 15 of the Labor Code of the Russian Federation, is defined as work in a certain specialty, qualification or position.

When determining the status of a civil service position, A.F. Nozdrachev refers to the tariff-qualification guides, which systematize the lists of jobs and professions and which are used when establishing the labor function of an employee. He writes that civil servants must meet the qualifications and requirements established by these handbooks.

Thus, there is no fundamental (essential) difference between the labor activity of an employee and the professional activity of a civil servant. There is some specificity, which consists in the fact that the labor activity of a civil servant is involved (associated) with the implementation of the functions of the state. And only the totality of individual labor functions of civil servants of one or another state body can be considered as an activity for the implementation of the corresponding function of the state. Determining the status of a civil servant, the law establishes rights and obligations in relation to an individual subject - a citizen who has entered the civil service, and not to some abstract combination of them. Authoritative decisions, binding on an indefinite circle of persons, are made not by each individual civil servant on his own behalf, but by the head of a state body on behalf of the relevant state body.

In the science of labor law, it is generally accepted that persons holding public office have a dual sectoral status. On the one hand, entering the civil service, they act as ordinary citizens who have entered into an employment relationship (perform a certain labor function for remuneration). On the other hand, they act as agents of public authority and therefore make decisions that are of an authoritative nature. Accordingly, the status of a civil servant as an employee is determined by the norms of labor law, and his status as an agent of public authority - by state and administrative law.

Representatives of the science of administrative law recognize that the concepts of "labor activity" and "professional activity", through which the public service is determined, do not have a fundamental difference. For example, G.V. Atamanchuk writes that the public service is revealed through the concept of "professional activity", which is of a labor nature and has little to do with the essential properties of the service (duty, duty, loyalty).

The absence in Law No. 79-FZ of delimiting professional activity in the public service from other types of professional activity is not an omission of the legislator. Such a distinction is impossible in principle, since any professional activity in its content is labor, that is, expedient, conscious and volitional human activity. The very word "profession" means the kind of labor activity (occupation) of a person who owns a complex of special theoretical knowledge and practical skills acquired as a result of training, work experience. Therefore, entering the civil service is a way for a citizen to realize his professional abilities.

Analysis of Law No. 79-FZ conducted by L.A. Chikanova showed that more than half of it consists of norms copied from the Labor Code of the Russian Federation. Almost verbatim, the provisions of the Code were rewritten that regulate the content of a service contract, its validity period and the procedure for concluding, the rules for establishing a test for employment, transfer to another position, removal from office, the main grounds for terminating a contract, working time and rest time, consideration of service disputes and etc. Law No. 79-FZ does not contain terminology that is fundamentally different from that used in labor law: it all came down to replacing the term "labor" with "service" (service contract, official time, official dispute, official place). Moreover, the content of the relevant concepts essentially has not changed. In addition, in some cases, "labor law" terminology has also been preserved. For example, labor protection, wages, etc.

In addition, Law No. 79-FZ generally does not regulate such institutions as liability, labor protection, guarantees for workers with family responsibilities and pregnant women, workers combining work with training, people working in the Far North. It does not say anything about the procedure for maintaining work books.

Some provisions of Law No. 79-FZ are formulated in such a way that it is difficult to understand whether they should be applied on their own (literally) or taking into account the relevant provisions of the Labor Code of the Russian Federation. For example, according to Article 38 of Law No. 79-FZ, when deciding on the possibility of terminating a service contract with a civil servant, the representative of the employer informs in writing the elected trade union body of this state body. Having provided for this rule, Law No. 79-FZ does not say anything about how the trade union body should act if it receives such information, and whether the representative of the employer is obliged to take into account the opinion of the trade union on the termination of the service contract with a civil servant.

The idea to most fully regulate service relations in the civil service in a special law actually turned into the presence in it of a significantly larger (than before) number of gaps that are difficult to eliminate even by applying the general norms of labor legislation. So, in Law No. 79-FZ there are no rules on the procedure for issuing an act on appointment to a position, on the procedure for suspending and extending a service contract, etc. provides for such a (characteristic for the legislation of many foreign countries) grounds for termination of the civil service, such as resignation, etc.

All of the above allows us to conclude that an integral system of legal regulation of service relations in the state civil service did not work out. The regulation of service relations in the state civil service is carried out today half by the norms of the law, rewritten from the Labor Code of the Russian Federation, and half by applying the norms of the Labor Code of the Russian Federation subsidiarily.

However, not in all cases it is possible to reliably determine the possibility of applying one or another norm of the Labor Code of the Russian Federation to the activities of civil servants. In this regard, the question is quite legitimate: is there any practical sense in rewriting the well-known provisions of labor law and calling all this service law? An attempt to implement these ideas in Law No. 79-FZ was not successful, not because its developers were incompetent or could not properly implement these ideas, but because it could not have happened otherwise, since it was based on an erroneous concept. Practically, by means of the Law, its developers tried to "forcefully" transfer relations, which in their essence are labor relations, into the sphere of regulation of administrative legislation.

In this regard, it is appropriate to cite the idea expressed by the authors of the Concept for the Development of Administrative Legislation, who note that "in recent years, the solution of many problems with the help of laws gives rise to the illusion of solving the problem by the very fact of adopting a law."

It is this illusion, as practice shows, that is present among supporters of the idea of ​​regulating labor relations in the public service exclusively by the norms of administrative law.

Chapter 2. Features of the passage of the state civil service

labor law service civil

2.1 Entering the civil service

In accordance with the Constitution of the Russian Federation, the legislation of the Russian Federation establishes the most important principles underlying the formation and functioning of the system of public service and civil service as one of its constituent types.

There are three norms in the Constitution of the Russian Federation that apply the concept of public service and are directly related to the constitutional foundations of the civil service: Article 32 enshrines the right of equal access of Russian citizens to public service; clause "t" of Article 71 refers the federal public service to the jurisdiction of the Russian Federation; Part 3 of Article 97 establishes a ban on deputies of the State Duma of the Federal Assembly of the Russian Federation simultaneously being in the public service.

According to part 4 of article 32 of the Constitution of the Russian Federation and article 4 of Law No. 79-FZ, citizens of the Russian Federation have equal access to the civil service in accordance with their abilities and professional training. It follows from this that any discrimination based on gender, social, racial, national, linguistic or religious affiliation is prohibited when entering and passing the civil service.

The basis for entering the civil service is a complex actual composition, consisting of a competitive selection procedure, an act of appointment to a position and the conclusion of a service contract.

The procedure for entering the civil service has features related primarily to the democratic procedure for the competitive selection of candidates for civil service positions, provided for in Article 22 of Law No. 79-FZ, which is caused by the special nature of the duties performed by civil servants at any level, high social significance and accountability for these responsibilities.

According to paragraph 1 of Article 22 of Law No. 79-FZ, the competition for filling a vacant civil service position consists in assessing the professional level of applicants for filling a civil service position, their compliance with the established qualification requirements for a civil service position. The competition procedure is regulated in detail by Decree of the President of the Russian Federation of February 1, 2004 No. 112 "On the competition for filling a vacant position in the state civil service of the Russian Federation" (hereinafter - Decree No. 112). In accordance with paragraph 6 of Article 12 of Law No. 79-FZ, the qualification requirements for a specific civil service position, due to the specifics of this particular position, should be contained in the civil servant's job regulations.

Thus, the constitutional right of citizens of the Russian Federation to equal access to public service, as well as the right of civil servants to promotion (subparagraph 10 of paragraph 1 of Article 14 of Law No. 79-FZ) are provided on a competitive basis. The use of competitive procedures in the selection of personnel contributes to the staffing of state bodies of the Russian Federation with the most capable and qualified specialists.

There are a number of exceptions to the general rule of entering the civil service and filling another position in the civil service. Part 2 of Article 22 of Law No. 79-FZ establishes cases when a tender is not held:

) upon appointment to positions of the civil service of the categories "heads" and "assistants (advisers)" substituted for a certain term of office.

) upon appointment to civil service positions of the category "leaders", the appointment and dismissal of which are carried out by the President of the Russian Federation or the Government of the Russian Federation.

) at the conclusion of a fixed-term service contract.

) when providing a civil servant with another position provided for by Law No. 79-FZ;

) when appointing a civil servant (citizen) to the position of the civil service, who is in the personnel reserve, formed on a competitive basis.

In addition to the above norms that imperatively establish exceptions to the general procedure for competitive selection for filling a civil service position, cases are established when the competition may not be held. For example, when appointed to positions, the performance of official duties for which is associated with the use of information constituting a state secret (part 4 of article 22 of Law No. 79-FZ). Another case where the competition may not be held is the appointment to positions that belong to the junior group of civil service positions. The decision to fill these positions without a competition is made by the representative of the employer, which can be taken individually in each specific case (Part 5 of Article 22 of Law No. 79-FZ).

This provision of Law No. 79-FZ can be criticized, since the possibility of entering the civil service without a competitive selection procedure contributes to the replacement of civil service positions by "random" or "own" people, at present, this rule of law can be classified as a rule rights with the presence of a corruption factor. Availability options behavior creates favorable conditions for the authorized official to commit corrupt acts.

In accordance with clause 23 of the Regulations on the competition for filling a vacant position in the state civil service of the Russian Federation, approved by Decree No. 112, based on the results of the competition, an act of the representative of the employer is issued on the appointment of the winner of the competition for a vacant position in the civil service and a service contract is concluded with the winner of the competition.

Note that the service contract is concluded on the basis of the act of appointment. In an employment relationship, according to Article 68 of the Labor Code of the Russian Federation, an order for employment only formalizes relations that have already arisen on the basis of an employment contract. Consequently, the act of appointment to a position is an element of a complex factual composition (one of the legal facts), and an order for employment is not such, since it does not entail any legal consequences.

According to labor legislation, appointment to a position is only one of the ways in which labor relations arise, which is used along with others, for example, election by competition. With regard to civil servants, such an act of appointment is in all cases a necessary element of the recruitment procedure.

In accordance with paragraph 1 of Article 23 of Law No. 79-FZ, a service contract is an agreement between a representative of the employer and a citizen entering the civil service, or a civil servant, to perform the civil service and fill a civil service position.

From this we conclude that the parties to a service contract can be:

a) a representative of the employer and a citizen entering the civil service;

b) a representative of the employer and a civil servant.

Thus, a service contract is a legal fact that is the basis for the emergence of a service relationship, by virtue of which its parties acquire rights and obligations that determine their legal status as civil servants.

The question arises as to the definition of the parties to a service contract. The head of the state body was named as the party to the contract by the legislator (Articles 1, 23 of Law No. 79-FZ). Thus, the party to the service contract is not the state as an employer, not a state body that performs the functions of the state and to which a citizen enters, but a specific official. In this regard, it turned out that a civil servant actually serves not the state and not a state body, but an official, because in accordance with the contract, the civil servant bears the corresponding obligations to him as a party to the contract. In turn, it turns out that it is the leader who undertakes to provide the citizen with the opportunity to perform civil service, pay the full amount of money, provide him with state social guarantees, etc. The definition of a specific head of the state body as a party to the contract raises some other problems. In particular, the question arises about the legal force of a service contract if its party (the head of a state body) is dismissed from office. Can the contract be considered valid, is there an "automatic" succession when another leader is appointed, or does this require an appropriate administrative act? Law No. 79-FZ does not provide an answer to these questions.

Their constructive solution has not been proposed by administrative scientists either. Arguing on this topic, A.A. Grishkovets comes to the conclusion that by and large it is not so important which subject acts as the other side of the employment contract concluded with a civil servant. In his opinion, something else is important: is there a need for a civil service contract at all as the basis for the relationship between a civil servant and the state as such. As a result, he comes to the conclusion that the contract should be abandoned, and the position of a civil servant should be brought closer to the position of a federal judge. And this should be done, first of all, in terms of the legal registration of the acquisition of powers, appointment and dismissal, which will ensure real stability of the legal status of a civil servant.

However, this conclusion cannot be considered constructive. Basically, it doesn't solve the problem. Regardless of whether a civil servant will be hired under a contract or only on the basis of an appointment act, the other side of the legal relationship that has arisen must be clearly defined. And such a party should not be an "abstract" state, but a specific state body. It is no coincidence that, speaking about the content of the contract, the legislator prescribes to indicate in it, first of all, the name of the state body, and then (in brackets) the surname, name, patronymic of the representative of the employer. If such a record is interpreted literally, then it should be assumed that the concepts of "representative of the employer" and "state body" are synonyms, and this contradicts other provisions of Law No. 79-FZ and the very idea underlying it. Similar inconsistencies and contradictions are observed in many other provisions of Law No. 79-FZ.

It should be noted that there is nothing reprehensible in recognizing a state body as a party to a service contract. Only the conscientious service of each civil servant to a specific state body can ensure the effective operation of this body in the implementation of the relevant functions of the state and, ultimately, the effectiveness of the state itself. It is no coincidence that the legislation of a number of states (for example, Great Britain) expressly provides that all civil servants - employees of the Crown - must remain faithful to the institutions in which they serve. Even when the law directly proclaims service to the state (for example, in Albania), the state represents precisely the state body. A phenomenon similar to our law, when the head of a state body is a party to a contract, does not occur in foreign practice.

The parties to a service contract, when determining its content, are limited by the scope of Law No. 79-FZ. Thus, Article 24 of Law No. 74-FZ provides for the conditions for inclusion in a service contract. The legislator here highlights the essential conditions, and the conditions by agreement of the parties. It should be noted that the Federal Law of June 30, 2006 No. 90-FZ "On Amendments to the Labor Code of the Russian Federation, Recognition of Certain Regulatory Legal Acts of the USSR as Invalid on the Territory of the Russian Federation and Invalidated Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation "The concept of essential terms of an employment contract has been excluded from the Labor Code of the Russian Federation. Instead of this concept, Article 57 of the Labor Code of the Russian Federation indicates which conditions are mandatory for inclusion in an employment contract. The concept of "essential terms of an employment contract" has been replaced by the concept of "conditions that must be included in an employment contract", which is terminologically more correct. Given the commonality of approaches to the regulation of labor contracts in the Labor Code of the Russian Federation and service contracts for civil servants in Law N 79-FZ, it would be desirable to extend this innovation by law to the terms of service contracts as well.

The allocation in the service contract of essential conditions in a separate group means that these conditions are mandatory for inclusion in the service contract. For essential conditions, it is possible to change them (in the cases specified by Law No. 79-FZ) unilaterally at the initiative of the representative of the employer, while general rule(Clause 5 of Article 24 of Law No. 79-FZ), the terms of a service contract can only be changed by agreement of the parties and only in writing.

Despite the fact that the service contract is an agreement of the parties (that is, it is initially understood that its terms are the result of a bilateral and voluntary expression of will), nevertheless, in some cases, neither the representative of the employer, nor the citizen or civil servant have the opportunity to deviate from the contract when concluding a service contract. conditions imperatively established by Law N 79-FZ. This partly concerns the rights and obligations of the parties.

So, the service contract without fail includes: the obligation of the representative of the employer to provide the citizen entering the civil service with the opportunity to perform civil service, as well as to provide the specified citizen or civil servant with the opportunity to fill a certain position in the civil service, to ensure that they complete the civil service and fill the position of civil services in accordance with Law No. 79-FZ, other laws and other regulatory legal acts on the civil service, pay the civil servant a monetary allowance and provide him with state social guarantees in a timely manner and in full (paragraph 2 of Article 23 of Law No. 79-FZ).

In general, analyzing the articles of Law No. 79-FZ related to a service contract, one can come to the conclusion that a service contract as an agreement (if this word means the consent of the parties to certain conditions and free expression of will when they are formulated) is regulated in great detail. Law No. 79-FZ either itself establishes mandatory norms, or refers to other regulatory legal acts - already adopted or those that should be adopted.

For example, we can take the Decree of the President of the Russian Federation of February 16, 2005 No. 159, which approved the approximate form of a service contract on the passage of the state civil service of the Russian Federation and filling the position of the state civil service of the Russian Federation. A citizen or a civil servant simply has to "agree" with the conditions that Law No. 79-FZ and other regulatory legal acts offer him.

There are some features associated with the special nature of the professional activity of a civil servant. So, unlike the norms of the Labor Code of the Russian Federation, which provide for a maximum test period of no more than 3 months, and in certain cases 6 months, Article 27 of Law No. 79-FZ establishes that the period of probation during the passage of the state civil service is set from three months to one year.

2 Features of service time and rest time of civil servants

Paragraph 1 of Article 45 of Law No. 79-FZ establishes that service time is the time during which a civil servant, in accordance with the official regulations of a state body or with a service schedule or terms of a service contract, must perform his official duties, as well as other periods that in accordance with federal laws and other regulatory legal acts, refer to official time.

Thus, the list of periods of time that are included in the working time is not exhaustive.

According to this definition, the length of service time and its distribution in the calendar period is determined by the official regulations of the state body, the service schedule or the terms of the service contract. It should be noted that the main act that fixes the duration and regime of official time, in practice, is the official routine. In accordance with paragraph 6 of Article 58 of Law No. 79-FZ, the official schedule of the state body is determined by the normative act of the state body regulating the mode of service (work) and rest time. The service schedule is a new concept introduced in paragraph 1 of Article 45 of Law No. 79-FZ. Usually, service schedules are not drawn up, since government agencies work in a certain mode, the same for all civil servants. According to established practice, schedules are drawn up using shift work, while employees are set a five-day work week in one shift, which eliminates the need for approval of schedules.

Thus, we can conclude that the passage of the state civil service in the regime shift work, provided for by the Labor Code of the Russian Federation for employees performing work on the basis of an employment contract, is not applied in practice.

If the regime of duty time and rest time differs for a civil servant from the official schedule of a state body, then this condition becomes an essential condition of the service contract by virtue of subparagraph 7 of paragraph 3 of Article 24 of Law No. 79-FZ.

According to paragraph 3 of Article 45 of Law No. 79-FZ, it is allowed to establish a special mode of work for state civil servants - an irregular working day. In accordance with the specified norm, for civil servants replacing the highest and main positions of the civil service, the establishment of an irregular working day is mandatory by virtue of the prescription of Law No. as a general rule, is established by agreement of the parties. For other civil servants, an irregular working day may be established taking into account the specifics of their official duties and the conditions for their performance.

However, it must be borne in mind that the performance of work in excess of the established norm of official time must be due to objective reasons and be of an episodic nature. It is unacceptable to oblige civil servants to systematically work outside the working day, as this will lead to an actual increase in the length of service time and will conflict with the guarantees established for them, in particular with the right to rest.

Civil servants who have an irregular working day, in accordance with paragraph 4 of Article 45 of Law No. 79-FZ, are provided with annual additional paid leave, the duration of which depends on the volume and complexity of the civil servant's official duties, intensity, tension and other conditions of the civil service.

The procedure and conditions for granting civil servants additional annual leave for an irregular working day were adopted by the Government of the Russian Federation on December 31, 2008.

In cases where leave is not granted or cannot be granted for any reason, then, in accordance with paragraph 4 of Article 45 of Law No. 79-FZ, with the written consent of a civil servant, work outside the normal working hours is compensated as overtime work. In this case, the general rule applies - a guarantee for payment, provided for in Article 152 of the Labor Code of the Russian Federation. Hence the obligation of the employer to keep accurate records of work outside normal working hours.

This provision differs from the general rule, since Article 119 of the Labor Code of the Russian Federation provides for employees only additional paid leave without the possibility of remuneration as overtime work.

Part-time work (Article 60.1 of the Labor Code of the Russian Federation) is one of the forms of work outside the normal working hours.

With regard to civil servants, the ban on part-time work has been replaced by restrictions established by Law No. 79-FZ. In particular, according to paragraph 2 of Article 14 of Law No. 79-FZ, a civil servant has the right, with prior notice to the representative of the employer, to perform other paid work, if this does not entail a conflict of interest. Only Article 17 of Law No. 79-FZ establishes a ban on the participation of a civil servant in the activities of the management body of a commercial organization on a paid basis.

The right to rest is one of the guarantees of a civil servant, as well as the constitutional right of every person, which is enshrined in Article 37 of the Constitution of the Russian Federation, which guarantees all those working under an employment contract the length of working time established by federal law, weekends and holidays, annual paid leave.

Constitutional guarantees, of course, apply to civil servants. However, for them there are features established by Law N 79-FZ.

In accordance with Part 6 of Article 45 of Law No. 79-FZ, the right to rest is realized by providing a public civil servant with free time from the performance of official duties (free time) outside the limits of the normal length of service time established by Law No. 79-FZ. And also in accordance with clause 3 of part 1 of article 14 of Law No. 79-FZ, a civil servant has the right to rest, provided by the establishment of normal working hours, the provision of days off and non-working public holidays, as well as annual paid basic and additional holidays;

Article 107 of the Labor Code of the Russian Federation provides for the following types of recreation:

Breaks during the working day (shift);

Daily (between shifts) rest;

Days off (weekly uninterrupted rest);

Non-working holidays;

Law No. 79-FZ does not provide for any other types of recreation for civil servants.

The general rules and guarantees established by labor legislation also relate to the duration of rest periods, the conditions and grounds for their provision to civil servants, the duties of the employer's representative, and the protection of the right of civil servants to receive and use rest time.

For civil servants, such a type of vacation as vacation has a certain specificity (Article 46 of Law No. 79-FZ).

A feature for civil servants is that, in accordance with paragraph 2 of Article 46 of Law No. 79-FZ, annual paid leave consists of a basic paid leave and additional paid holidays. The duration of the main paid leave depends on the position of the civil servant. For employees who replace the highest and main positions of the civil service, a basic leave of 35 calendar days has been established. For other civil servants, the duration of the main paid leave is 30 days.

Thus, in accordance with Article 115 of the Labor Code of the Russian Federation, civil servants are provided with extended basic paid leave in accordance with the Federal Law.

Additional holidays are added to the main vacation. There are three types of additional leave for civil servants: for length of service (part 5 of Article 46 of Law No. 79-FZ), for irregular working hours (discussed earlier), due to difficult, harmful and (or) dangerous conditions of civil service (part 7 article 46 of Law No. 79-FZ).

Leave for seniority is granted to all civil servants without exception and is stimulating in nature, i.e. aims to encourage civil servants to work long hours in public administration.

The duration of the leave depends on the length of service in the civil service. For each year of service, one calendar day of vacation is additionally provided, but not more than 10 calendar days.

Law No. 79-FZ provides for another type of additional leave - leave due to difficult, harmful and (or) dangerous conditions of civil service, including in connection with service in areas with special climatic conditions. These holidays must be granted to civil servants in accordance with the legislation of the Russian Federation.

However, in practice, such leaves can only be granted to civil servants in exceptional cases, since they are not employed in work with harmful and (or) dangerous working conditions, in heavy work. In accordance with Article 117 of the Labor Code of the Russian Federation, work with harmful and (or) dangerous working conditions includes underground mining and open pit mining in open pits and quarries, in zones of radioactive contamination, other work associated with an unavoidable adverse effect on human health of harmful physical, chemical, biological and other factors.

The right to additional paid leave for work in harmful and (or) dangerous working conditions is only available to those employees who are employed in production, at work, in professions and positions listed in special lists approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission on regulation social and labor relations. Currently, before the adoption of the relevant lists, there is a List of industries, workshops, professions and positions with harmful working conditions, work in which gives the right to additional leave and a shorter working day, approved. Decree of the USSR State Committee for Labor and the Presidium of the All-Union Central Council of Trade Unions of October 25, 1974 N 298 / P-22. The specified List does not provide positions of civil servants.

Clause 7 of Article 46 of Law No. 79-FZ cannot be practically applied, with the exception of granting leave for service in areas with adverse climatic conditions. In connection with the presence of a direct indication of Law No. 79-FZ, civil servants are subject to the norms of labor legislation (Article 321 of the Labor Code of the Russian Federation), which provide for the provision of additional leave to those living and working in the regions of the Far North and equivalent areas.

Law No. 79-FZ does not establish the procedure for approving the vacation schedule, therefore, in accordance with Article 123 of the Labor Code of the Russian Federation, the vacation schedule is approved no later than two weeks before the start of the calendar year. It is mandatory for both the representative of the employer and the civil servant.

In the presence of relevant circumstances, a civil servant has the right to use the benefits provided for by law.

Based on Article 73 of Law No. 79-FZ, it is also necessary to allow the possibility of replacing annual paid leave exceeding 28 calendar days with monetary compensation, since Article 46 of the Civil Service Law does not contain a direct prohibition.

A special rule is provided for those cases when a civil servant, leaving, wants to exercise his right to rest and get a vacation. In this case, in agreement with the representative of the employer, he may be granted leave with subsequent dismissal.

It should be emphasized that Law No. 79-FZ (as well as Article 128 of the Labor Code of the Russian Federation) does not establish the unconditional right of a civil servant to demand leave "in kind" upon dismissal. This issue is resolved taking into account the interests of both parties to the service relationship.

The application of the rule on granting leave with subsequent dismissal is unacceptable in cases of dismissal from a substituted position and dismissal of a civil servant from the civil service for guilty actions (Articles 33, 37 of Law No. 79-FZ), he is paid compensation for unused vacation (leaves).

In addition to annual leave, a civil servant may use leave without pay (paragraph 15 of Article 46 of Law No. 79-FZ). It is granted for good reasons related to family and other circumstances.

In accordance with paragraph 15 of Article 46 of Law No. 79-FZ, the duration of leave without pay is determined by agreement between the civil servant and the representative of the employer, depending on the circumstances (reasons) that made such leave necessary. The maximum duration of said leave is one calendar year (12 months). This is a distinctive feature, since Article 128 of the Labor Code of the Russian Federation, as a general rule, does not establish the maximum duration of leave without pay.

From the meaning of paragraph 15 of Article 46 of Law No. 79-FZ, it follows that leave without pay can be granted only if the civil servant has a good reason, therefore, in the application for granting such leave, the employee is obliged to indicate such a reason. The assessment of the validity of the circumstances is carried out by the representative of the employer. If he considers the reason indicated by the civil servant to be unreasonable, the leave may be denied.

For the period of vacation, a civil servant retains a substituted position in the civil service. Having received leave without pay, a civil servant may interrupt it at any time by informing the representative of the employer about this.

The cases when the representative of the employer is obliged to provide leave without pay are similar to the cases established by the Labor Code of the Russian Federation.

3 Features of changing and terminating a service contract

Law No. 79-FZ does not provide for a special chapter on changing the service contract.

By analogy with Chapter 12 of the Labor Code of the Russian Federation, which regulates cases of changing an employment contract, the following cases of changing a service contract can be distinguished, provided for by Law No. 79-FZ:

a) transfer to another civil service position (Articles 28, 30 of Law No. 79-FZ);

b) changing the essential terms of the service contract (Article 29 of Law No. 79-FZ);

c) relations related to the civil service, during the reorganization or liquidation of a state body or the reduction of civil service positions (Article 31 of Law No. 79-FZ);

d) removal from a civil service position to be substituted (Article 32 of Law No. 79-FZ)

Chapter 12 of the Labor Code of the Russian Federation, in addition to similar types, provides for a change in the employment contract in the event of a change in the owner of the organization's property (Article 75 of the Labor Code of the Russian Federation), which is not acceptable for civil service relations, since in any case the state remains the owner of the property (the Russian Federation or a subject of the Russian Federation).

Law No. 79-FZ does not define what can be considered the transfer of a civil servant to another position. Based on the content of paragraph 4 of Article 28 of Law No. 79-FZ, transfer, in particular, should be understood as the transfer of a civil servant with his consent to a position that entails a change in his previous job duties established by the service contract and job regulations. It follows from this that if a civil servant is assigned certain duties that he did not previously perform, the question of whether there is a transfer of a civil servant to another position is decided by comparing the range of his previous and new duties provided for by the official regulations and official contract. If the requirements contained in them, which are entrusted to a civil servant, do not diverge from the new duties, then there is no legal fact of transfer to another position.

Paragraph 1 of this article provides for various cases (reasons) for the transfer of civil servants to other positions, which are divided into three groups:

) transfer to another position in the same state body;

) transfer to another position in another state body;

) transfer to another locality together with a government agency.

It is necessary to distinguish between the transfer of a public civil servant and the transfer. In accordance with paragraph 4 of Article 28 of Law No. 79-FZ, it is not a transfer and does not require the consent of a civil servant to transfer him to another civil service position without changing the job responsibilities established by the service contract and job regulations.

A serious contradiction exists between the concepts of "transfer to another position" and "transfer to another position" provided for by Law No. 79-FZ. If we compare them, it is clear that both of them are based on such a general concept as "another position", only in the case of a transfer, this is a different position without changing official duties. However, if we proceed from the definition of the position given in Article 8 of Law No. 79-FZ, then such a situation cannot arise. Another position is always a position that does not correspond in name to the one that was due at the conclusion of the contact, with other official duties, even if in a certain part of it.

²

In accordance with Article 24 of Law No. 79-FZ, the content of the service contract includes the essential terms of the service contract, as well as the terms included by agreement of the parties.

For essential conditions, it is possible to change them (in the cases specified by Law No. 79-FZ) unilaterally at the initiative of the representative of the employer, while according to the general rule (part 5 of article 24 of Law No. 79-FZ), the terms of a service contract can only be changed by agreement of the parties and only in writing.

The representative of the employer may initiate a unilateral procedure for changing the essential terms of the service contract with the simultaneous presence of two conditions, as provided for in paragraph 1 of Article 29 of Law No. 79-FZ. Changing the essential conditions of professional performance is the first condition, and the second is the immutability of the official duties of a civil servant.

Unlike the Labor Code of the Russian Federation, Law No. 79-FZ establishes a mandatory change in such a special condition of a service contract as a term, providing for the possibility of renewing a service contract concluded with civil servants for an indefinite period and who have reached 60 years of age, for a certain period. As follows from Law No. 79-FZ, the representative of the employer, at his discretion, determines the period for which the service contract is renegotiated. At the same time, Law No. 79-FZ does not provide for any criteria that an employer's representative should be guided by when determining the term of a service contract. This rule is in clear conflict with the provisions of Article 24 of Law No. 79-FZ, which provides that the terms of a service contract can only be changed by agreement of the parties. In addition, it puts the civil servant in strict dependence on the employer's representative, who alone decides whether the civil servant continues to serve.

Thus, the rules of Law No. 79-FZ on the renegotiation of a service contract are not only a distinctive feature, but also put these civil servants in an unequal position in terms of the ability to carry out service before reaching the age limit established by Law No. 79-FZ, that is, 65 years .

Relations related to the civil service, in the event of the reorganization or liquidation of a state body or the reduction of civil service positions, are provided for in Article 31 of Law No. 79-FZ.

In connection with the reduction of positions in a state body, in accordance with paragraph 1 of Article 31 of Law No. 79-FZ, the representative of the employer, before the release of a civil servant from a substituted position and dismissal from the civil service under paragraph 6 of part 1 of Article 33 of the Law, must:

provide a civil servant, taking into account the level of his qualifications, professional education and length of service in the civil service or work (service) in his specialty, with the opportunity to fill another position in the civil service in the same state body (similar to the Labor Code of the Russian Federation) or in another state body;

or send a civil servant for professional retraining or advanced training (an additional guarantee).

The issue of providing the opportunity to fill a civil service position in another state body is a feature and, obviously, should be resolved in the future with the participation of the civil service management body as the holder of a single bank of personnel information, represented by the federal personnel reserve and the register of federal civil servants.

The issues of removal from a civil service position to be substituted are considered in Article 32 of Law No. 79-FZ. There are no significant differences from Article 76 of the Labor Code of the Russian Federation, which establishes cases of dismissal of an employee from work, in this matter.

The legal regulation of the termination of a service contract in Law No. 79-FZ is based on the same principles that are laid down in the legal regulation of the termination of an employment contract in accordance with the Labor Code of the Russian Federation. Similarly, the Labor Code of the Russian Federation is implemented in Law No. 79-FZ and the differentiation of the grounds for terminating a service contract.

The service contract terminates upon the release of a civil servant from his position, with the exception of cases of dismissal, in which the service contract is suspended due to circumstances beyond the control of the parties (Article 39 of Law No. 79-FZ).

After analyzing Chapter 6 of Law No. 79-FZ, the following cases of termination of a service contract can be distinguished:

a) when a civil servant is dismissed from his position in connection with the appointment (transfer) to another civil service position in the same state body;

b) when a civil servant is dismissed from his position in connection with the appointment (transfer) to another civil service position in another state body;

c) when a civil servant is dismissed from his position due to dismissal from the civil service.

At the same time, the termination of a service contract does not always entail the dismissal of a civil servant. This is one of the essential features of the legal status of a civil servant in comparison with the status of an employee working under an employment contract.

Upon termination of the service contract and dismissal from the position on the grounds provided for in paragraph 1 of Article 33 of Law No. 79-FZ, the civil servant is dismissed from the civil service. At the same time, it should be noted that the termination of a service contract and dismissal from a position on one of these grounds does not entail dismissal from the civil service. So, if the transfer of a civil servant at his request or with his consent to another state body (paragraph 5 of Article 33 of Law No. 79-FZ) is not associated with the transition to a public service of a different type (military or law enforcement service), then in this case remains in the civil service. Consequently, the termination of the service contract and the release of a civil servant from his position entails his dismissal from the state body, but is not accompanied by dismissal from the civil service.

Termination of a service contract with a civil servant, his release from his position and dismissal from the civil service are formalized by a legal act of a state body. The dismissal of a civil servant from office, with the exception of cases of dismissal from office, in which the service contract is suspended due to circumstances beyond the control of the parties (Article 39 of Law No. 79-FZ), entails the termination of the previously concluded service contract.

A feature for civil servants is the possibility of not only termination, but also the suspension of a service contract. The very idea of ​​the possibility of suspending a service contract in the cases specified by Law No. 79-FZ deserves attention. However, in Law No. 79-FZ it is not implemented at the proper level, and there is no possibility of subsidiary application of the Labor Code of the Russian Federation. According to the logic of things, relations that have arisen on the basis of a service contract suspended for one reason or another should be continued in cases and from the moment when these circumstances are eliminated. In accordance with Law No. 79-FZ, depending on the reason for the suspension of the contract, a civil servant who is not appointed to a position within the period specified by Law No. 79-FZ is either dismissed from service and excluded from the register, or credited to the personnel reserve.

Almost verbatim, the Law also reproduces the provisions of the Labor Code of the Russian Federation, which characterize the specific grounds for terminating an employment contract. At the same time, along with the grounds for termination of a service contract, similar to the Labor Code of the Russian Federation, the Law also names some additional ones.

These are grounds such as:

) withdrawal of a civil servant from the citizenship of the Russian Federation;

) non-compliance with restrictions and failure to fulfill obligations established by Law No. 79-FZ and other federal laws;

) violation of the prohibitions related to the civil service, provided for in Article 17 of Law No. 79-FZ.

A serious problem arises in connection with the use of such an additional, in comparison with the Labor Code of the Russian Federation, grounds for terminating a service contract, as non-compliance with the restrictions and non-fulfillment of obligations established by the Law (paragraph 13 of Article 33 of Law No. 79-FZ), and violation of prohibitions related to civil service, provided for in Article 17 of Law No. 79-FZ (paragraph 14 of Article 33 of Law No. 79-FZ). The fact is that the Law establishes not one restriction or prohibition, but several. Article 16 establishes 9 restrictions, and article 17 provides 15 prohibitions related to the civil service. At the same time, the violation of some restrictions is specified in other articles regulating the termination of a service contract, while others are not.

It remains unclear in accordance with what wording and with reference to which article of Law No. 79-FZ a service contract with a civil servant who has violated certain restrictions can be terminated.

So, for example, the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Altai, in its ruling of February 6, 2008, found that Article 33 of Law No. the procedure and conditions for terminating a service contract for some specific reasons are established by other norms of this law, in connection with which the provisions of Article 33 of Law No. 79-FZ are blanket in nature. According to subparagraph 13 of paragraph 1 of Article 33 of Law No. 79-FZ, the general grounds for termination of a service contract, dismissal from a position and dismissal from civil service are non-compliance with restrictions and failure to fulfill obligations established by this Federal Law and other federal laws. The main duties and requirements for official behavior are established by articles 15, 18 of Law No. 79-FZ. However, failure to fulfill the obligations established by the said law or non-compliance with the requirements for official behavior does not in itself entail the possibility of terminating the service contract. The panel of judges came to the conclusion that the failure to perform the duties of a civil servant may entail the application of a disciplinary sanction only in the event of committing disciplinary offense. This conclusion is also confirmed by the content of Article 57 of Law No. 79-FZ, according to which non-performance or improper performance by a civil servant through his fault of official duties is a disciplinary offense and the representative of the employer has the right to impose a disciplinary sanction on him in the form of dismissal from the civil service, provided for special grounds .

On the contrary, the list of grounds for dismissal at the initiative of the representative of the employer in Law No. 79-FZ is somewhat narrower than in Article 81 of the Labor Code of the Russian Federation. The Law does not contain such grounds for dismissal at the initiative of the representative of the employer (Article 37), as a change of ownership or the commission of immoral acts by a person performing educational functions, which is clear from the content of the professional activity of a civil servant. Otherwise, the procedure for dismissal is similar to the Labor Code of the Russian Federation.

If we consider the provisions of Law No. 79-FZ on the termination of a service contract from the point of view of the completeness of the legal regulation of these relations, then we can state that they are settled quite fully. At the same time, the transposition of the norms of labor legislation without taking into account the specifics of the civil service, as is the case in Law No. 79-FZ, does not give grounds to consider these relations as settled at the proper, qualitative level.

So, unlike the Labor Code of the Russian Federation, Law No. 79-FZ provides for the obligation of the representative of the employer to warn civil servants about the upcoming termination of the service contract with them two months in advance and inform the elected trade union body about this only if the contract is terminated due to the reduction of civil service positions (Article 31, paragraph 5). In other words, no warning about the forthcoming liquidation of a state body and the termination of service contracts with civil servants in connection with this is required.

It is rather difficult to see the logic in such a difference, if we also take into account that compensation in the amount of four months' maintenance is paid to civil servants, regardless of whether they are dismissed from the civil service due to a reduction in position or in connection with the liquidation of a state body.

An analysis of the provisions of Law No. 79-FZ gives grounds for the conclusion that Law No. 79-FZ does not establish real guarantees for the protection of civil servants from unjustified dismissal and does not ensure the stability of service relations, which is confirmed by relevant judicial practice.

So, only in the city of Gorno-Altaisk for 2007-2009, the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Altai canceled 5 decisions of the Gorno-Altai City Court due to an incorrect interpretation of the substantive norms of Law No. service contract. It is unlikely that such an approach will allow civil servants to develop a sense of duty, loyalty and responsibility.

Conclusion

The state civil service and public relations associated with it are one of the most pressing issues today, since its reform is ongoing.

Chapter 1 of this thesis deals with theoretical issues and problems related to determining the legal nature of relations related to the civil service. The definition of the state civil service is given in accordance with Article 3 of Law No. 79-FZ, from which it is concluded that the state civil service is, firstly, a professional activity, and secondly, it is aimed at ensuring the execution of the powers of federal state bodies and state bodies of subjects Federation, as well as persons holding public positions of the Russian Federation, and persons holding public positions of constituent entities of the Russian Federation.

Three main points of view among scientists dealing with the issue of ways of development and improvement of legislation regulating the issues of the civil service are considered.

After considering the above positions, it is concluded that the nature of labor relations involves their regulation, on the one hand, in accordance with the principles of equality, and on the other hand, on the basis of power-subordination relations.

Chapter 2 discusses the norms of Law No. 79-FZ, which is the main law regulating the activities of civil servants, their difference and relationship with the norms of the Labor Code of the Russian Federation.

The procedure for entering the civil service, which is based on a complex actual composition, consisting of a competitive selection procedure, an act of appointment to a position and the conclusion of a service contract, is considered.

The features of service time and rest time of civil servants are considered. Thus, according to paragraph 3 of Article 45 of Law No. 79-FZ, it is allowed to establish a special mode of work for state civil servants - an irregular working day. In accordance with this norm, for civil servants replacing the highest and main positions of the civil service, the establishment of an irregular working day is mandatory by virtue of the prescription of Law No. established by agreement of the parties.

With regard to civil servants, the ban on part-time work has been replaced by restrictions established by Law No. 79-FZ. In particular, according to paragraph 2 of Article 14 of Law No. 79-FZ, a civil servant has the right, with prior notice to the representative of the employer, to perform other paid work, if this does not entail a conflict of interest.

Law No. 79-FZ provides for all types of recreation for civil servants in accordance with Article 107 of the Labor Code of the Russian Federation. A feature for civil servants is, in accordance with paragraph 2 of Article 46 of Law No. 79-FZ, the duration of the annual basic paid leave, which is 35 calendar days for employees who hold the highest and main positions in the civil service, and 30 days for other civil servants. While the Labor Code of the Russian Federation establishes the duration of the annual basic paid leave - 28 calendar days.

There are three types of additional leave for civil servants: for length of service (part 5 of Article 46 of Law No. 79-FZ), for irregular working hours (discussed earlier), due to difficult, harmful and (or) dangerous conditions of civil service (part 7 article 46 of Law No. 79-FZ).

In addition to annual leave, a civil servant may use leave without pay (paragraph 15 of Article 46 of Law No. 79-FZ). The maximum duration of said leave is one calendar year (12 months). This is a distinctive feature, since a similar norm of the Labor Code of the Russian Federation does not establish the maximum duration of leave without pay.

The features of the change and termination of the service contract, dismissal, as well as the termination of the service contract, entailing and not entailing dismissal from the civil service, are also considered.

Law No. 79-FZ, as applied to civil servants, borrowed from the Labor Code of the Russian Federation the main provisions that define the concept of transfer to another job.

With regard to the temporary transfer of a civil servant, a distinctive feature is the timing of a possible transfer in case of replacement of an absent civil servant - within a month within a calendar year. Article 72 ² The Labor Code of the Russian Federation established that a transfer to replace a temporarily absent employee is possible before the absent employee returns to work.

The service contract terminates upon the release of a civil servant from his position, with the exception of cases of dismissal, in which the service contract is suspended due to circumstances beyond the control of the parties (Article 39 of Law No. 79-FZ). At the same time, the termination of a service contract does not always entail the dismissal of a civil servant. This is one of the essential features of the legal status of a civil servant in comparison with the status of an employee working under an employment contract. A feature for civil servants is the possibility of not only termination, but also the suspension of a service contract. In accordance with Law No. 79-FZ, depending on the reason for the suspension of the contract, a civil servant who is not appointed to a position within the period specified by Law No. 79-FZ is either dismissed from service and excluded from the register, or credited to the personnel reserve.

Having examined the theoretical arguments presented in the work, as well as the norms of Law No. 79-FZ, the Labor Code of the Russian Federation, we can conclude that the relations that arise in the state civil service are, by their legal nature, labor relations and, in my opinion, the most correct legal regulation, it would be if the legislator focused in Law No. 79-FZ only on the features that arise in the state civil service (without duplication, they are similar to the norms of the Labor Code of the Russian Federation), including those related to the termination of a service contract. I think that this problem needs to be solved by amending both the relevant Law No. 79-FZ and the Labor Code of the Russian Federation, establishing specific cases in which it is necessary to apply general labor legislation or a special Law.

List of used sources and literature

1. Constitution (Basic Law) of the Russian Federation: adopted by popular vote on 12 December. 1993// Parliament.gaz. - 2009.- Jan. 29; Ros. gas. - 2009.-21 Jan.; Sobr. legislation Ros. Federation. -2009.-No. 4, Art. 3.

Labor Code of the Russian Federation of December 30, 2001 N 197-FZ: adopted by the State. Duma Feder. Sobr. Ros. Federation 21 Dec. 2001: Approved Federation Council Feder. Sobr. Ros. Federation 26 Dec. 2001// Parliament.gaz. -2002.- 5 Jan.; Ros. Gas. - 2001.- 31 Dec.; Sobr. legislation Ros. Federation. - 2002.-№ 1, part 1, art. 3.

On the fundamentals of the public service of the Russian Federation. Federal Law of July 31, 1995 No. 119-FZ: adopted by the State. Duma Feder. Sobr. Ros. Federation July 5, 1995 / / Ros. gas. - 1995. - August 3; Sobr. legislation Ros. Federation. -1995.-No. 31, art. 2990. No longer valid.

On the public service system of the Russian Federation: Federal Law of May 27, 2003 No. 58-FZ: adopted by the State. Duma Feder. Sobr. Ros. Federation 25 Apr. 2003: Approved Federation Council Feder. Sobr. Ros. Federation May 14, 2003// Parliament. gas. - 2003. - May 31; Ros. gas. - 2003. - May 31; Sobr. legislation Ros. Federation. - 2003.- No. 22, Art. 2063.

On the State Civil Service of the Russian Federation: Federal Law of July 27, 2004 No. 79-FZ: adopted by the State. Duma Feder. Sobr. Ros. Federation July 7, 2004: Approv. Federation Council Feder. Sobr. Ros. Federation July 15, 2004// Parliament. gas. - 2004. - July 31; Ros. gas. - 2004. - July 31; Sobr. legislation Ros. Federation. - 2004.- No. 31, Art. 3215.

On the introduction of amendments to the Labor Code of the Russian Federation, the recognition of certain normative legal acts of the USSR as invalid on the territory of the Russian Federation and invalidated certain legislative acts (provisions of legislative acts) of the Russian Federation. Federal Law of June 30, 2006 No. 90-FZ: adopted by the State. Duma Feder. Sobr. Ros. Federation 16 June 2006: approved. Federation Council Feder. Sobr. Ros. Federation June 23, 2006// Parliament.gaz. -2006.- July 13; Ros. Gas. - 2006. - July 7; Sobr. legislation Ros. Federation. - 2006.-No. 27, art. 2878.

On the competition for filling a vacant position in the state civil service of the Russian Federation: Decree of the President of Ros. Federation of 1 Feb. 2004 No. 112.// Ros.gaz. -2004.-3 Feb.; Sobr. legislation Ros. Federation.-2004.-No. 6, art. 439.

On the system and structure of federal executive bodies. Decree of the President Ros. Federation dated March 9, 2004 No. 314// Ros.gaz. -2004.-March 12; Sobr. legislation of the Russian Federation.-2004.- No. 11, art. 945.

O exemplary form service contract on the passage of the state civil service of the Russian Federation and the replacement of the position of the state civil service of the Russian Federation. Decree of the President Ros. Federation of 16 Feb. 2005 No. 159 //Ros.gaz. - 2005.-18 Dec.; Sobr. Legislation Ros. Federation. - 2005.-No. 38 art. 629.

On approval of the Rules for granting annual additional paid leave to federal civil servants who have an irregular working day. Decree of the Government of Ros. Federation of 31 Dec. 2008 No. 1090// Ros. newspaper. - Jan. 16; Collected. legislation Ros. Federation.-200.- No. 3, Art. 390.

On approval of the List of industries, workshops, professions and positions with harmful working conditions, work in which gives the right to additional leave and a shorter working day. Decree of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions of October 25. 1974 No. 298/P-22. The document has not been published. Access from reference - legal system "Consultant Plus".

At the request of a group of deputies to verify the constitutionality of the provisions of Article 25 of the Federal Law "On the Fundamentals of the Civil Service of the Russian Federation", Article 43 of the Federal Law "On the Prosecutor's Office of the Russian Federation", Article 14 of the Federal Constitutional Law "On the Judicial System of the Russian Federation" and Article 20.1 of the Federal Law "On the fundamentals of municipal service in the Russian Federation": Determination of the Constitutional Court Ros. Federation of 3 Oct. 2006//Coll. legislation Ros. Federation. -2003.-No. 12, art. 1174.

13. Regarding discrimination in the field of work and occupation. Convention of the International Labor Organization. [Electronic resource]. Adopted in Geneva on June 25, 1958 at the 42nd session of Gen. ILO conferences. URL: accessed 01.04.2009).

On the protection of the right to organize and procedures for determining the conditions of employment in the public service. ILO Convention of June 27, 1978 No. 151: adopted in Geneva on June 27, 1978 at the 64th session of the General Conference of the International Labor Organization / / Conventions and recommendations adopted by the International Labor Conference. 1957 - 1990. Vol. II. - Geneva: International Labor Office, 1991. S. 1883-1888.

Archive of the Supreme Court of the Republic of Altai. Decision in case No. 33-222 dated 27 Sep. 2006; No. 33-31 dated 6 Feb. 2008; No. 33-228 of July 16, 2008; No. 33-441 of 3 Dec. 2008; No. 33-119 dated 8 Apr. 2009

Archive of the Gorno-Altai City Court: Decision in case No. 2-429/06, No. 2-1132/07, No. 2-1136/08, No. 2-75/09

Alekhin, A.P. Administrative law of the Russian Federation: textbook / A.P. Alekhin, Yu.M. Kozlov.- M.: TEIS, 1995.- 280 p.

Atamanchuk, G.V. Theory of public administration: a course of lectures / G.V. Atamanchuk. -M. : Legal literature, 1997.-584 p.

Atamanchuk, S.G. The essence of public service: history, theory, law, practice / S.G. Atamanchuk. - M. : RAGS, 2003.-312 p.

Bahrakh, D.N. Administrative law: textbook / D.N. Bahrakh.- M.: BEK, 1993.- 355 p.

Bondarenko, E.N. Employment contract as a basis for the emergence of a legal relationship / E.N. Bondarenko. - St. Petersburg: Jurid. Center Press, 2004. - 226 p.

Braginsky, M.I., Contract Law: General provisions/ M.I. Braginsky, V.V. Vitryansky. - M.: Statute, 2000. - 681 p.

Gabrichidze, B.N., Service law: textbook./B.N. Gabrichidze, A.G. Chernyavsky. - Dashkov and K, 2004. - 378 p.

Public service: textbook. / ed. Ignatova I.G. - M. - Rostov n / D .: March, 2004. - 512 p.

Public service: textbook / ed. Obolonsky A.V. - M.: DELO, 2000. - 440 p.

Grazhdan, V.D. State civil service: textbook / V.D. Citizens. - M.: KNORUS, 2007. - 496 p.

Grishkovets, A.A. Legal regulation of the state civil service in the Russian Federation / A.A. Grishkovets.- M.: Business and Service, 2003. - 464 p.

Gureev, S.A., Introduction to public administration. Book 1. Law, state and politics. / S.A. Gureev., A.R. Paramonov, V.V. Lobanov [and others]. - M.: Finstatinf, 1998. - 231 p.

Demin, A.A. Public service: normative acts of the main legal systems / A.A. Demin. - M.: Gothic, 2001. - 560 p.

Demin, A.A. Public service: textbook / A.A. Demin.- M.: Zertsalo, 2004.-124 p.

Dmitrieva, I.K., Principles of Russian labor law./ I.K. Dmitrieva.- M., 2004. - 189 p.

Kozlov, Yu.M. Administrative law / Yu.M. Kozlov.- M.: Jurist, 2001.-554 p.

Concepts for the Development of Russian Legislation / Ed. T.Ya. Khabrieva, Yu.A. Tikhomirova, Yu.P. Orlovsky. M., 2004. - 465 p.

Kurennoy, A.M., Commentary on Labor Code Russian Federation / A.M. Kurennoy, S.P. Mavrin, E.B. Khokhlov. - M.: Jurist, 2005.-1261 p.

Commentary on the Federal Law "On the State Civil Service of the Russian Federation" [Electronic resource] / ed. V.A. Kozbanenko., St. Petersburg: Peter Press, 2008. -576 p.

Russian labor law course. T.I. a common part/ ed. E.B. Khokhlov.- St. Petersburg: St. Petersburg State University, 1996.- 576 p.

Russian labor law course. Vol. 2 / ed. S.P. Mavrina, A.S. Pashkova, E.B. Khokhlova. - M.: Jurist, 2001.- 560 p.

Livshits, R.Z. Theory of law: textbook / R.Z. Livshits. - M.: BEK, 1994. - 224 p.

Manokhin, V.M., Russian administrative law / V.M. Manokhin, Yu.S. Alushkin, Saratov, 2000.- 357 p.

Nozdrachev, A.F. Public service: textbook / A.F. Nozdrachev. - M.: Statute, 1999.- 592 p.

Nozdrachev, A.F. Commentary on the Federal Law "On the State Civil Service of the Russian Federation" and the legislation on the civil service of foreign states. /A.F. Nozdrachev A.F., A.F. Nurtdinova, L.A. Chikanova [and others]. - M.: MTsFER, 2005. - 387 p.

Nurtdinova, A.F., The practice of applying labor legislation: a scientific and practical guide / A.F. Nurtdinova, L.A. Chikanova. - M.: Yurid. lit., 2000. - 156 p.

General theory of state and law: academic course. T.2. / ed. M.N. Marchenko. - M. 2001. - 528 p.

Ovsyanko, D.M. Public Service of the Russian Federation: textbook / D.M. Ovsyanko. - M.: Jurist, 1996. - 208 p.

Starilov, Yu.N. Service law: textbook / Yu.N. Starilov.- M.: BEK, 1996. - 698 p.

Tikhomirov, Yu.A. Public law: textbook / Yu.A. Tikhomirov.- M.: BEK. 1995.- 496 p.

Tikhomirov, Yu.A. Administrative law and process course. / Yu.A. Tikhomirov.- M., 1998. 528 p.

Labor law of Russia: textbook / ed. Kurennogo A.M. M.: Jurist. 2004.- 523 p.

Labor law of Russia: textbook / ed. Nurtdinova A.F., Orlovsky Yu.P. - M.: MTsFER, 2004.-880 p.

Atamanchuk, G.V. Whom do civil servants serve? / G.V. Atamanchuk // Russian news. - 1994. - No. 12. pp. 62 - 63.

Belykh, V.S. On the correlation of private and public law in the legal regulation of public relations / V.S. Belykh // Civilistic notes: Interuniversity collection of scientific papers. Issue. 3. Yekaterinburg. pp. 65 - 66.

Dementiev, A.N., Problems of reforming the state civil service in the Russian Federation / A.N. Dementiev, N.I. Lukyanova // Analytical Bulletin of the Analytical Department of the Office of the Federation Council. - 2006. - No. 26 (314). pp.6-45.

Zotova, E. The practice of applying legislation on the civil service [Electronic resource] / E. Zotova / / Labor law for a personnel officer. - 2007. - No. 4. Access from the reference legal system "Consultant Plus".

Ivanov, S.A. Labor law of the transitional period / S.A. Ivanov // State and Law. -1994. - No. 4. S. 57-62.

Ivanov, S.A. Legal regulation of relations in the sphere of civil service / S.A. Ivanov, T.V. Ivankina, A.M. Kurennoy [and others] // EZh-Jurist. - 2004. - No. 6. pp.10-17.

Kazantsev, N.M. Public law regulation of public service / N.M. Kazantsev // Public Service of the Russian Federation: first steps and prospects. - P. 16-21.

Karlin, A.B. Public service - a new quality of functioning / A.B. Karlin // Public Service. - 2004. - No. 6 (32). pp. 10-14.

The concept of development of administrative legislation// The concept of development of Russian legislation. M., -2004.- S. 10-37.

Korniychuk, G.A. Civil servants. Features of labor regulation / G.A. Korniychuk//Alfa-Press. - 2006. Access from legal reference system "Consultant Plus".

Kurennoy, A.M., Modern problems of Russian labor law / A.M. Kurennoy, S.P. Mavrin, E.B. Khokhlov // Jurisprudence. -1997. - No. 2. P.20-24.

Nozdrachev, A.F. From the concept of reforming the civil service to new ideas of legal regulation of public service relations in the Russian Federation / A.F. Nozdrachev // Modernization of the Russian economy: results and prospects. M. - 2003.- S. 184 - 186;

Nozdrachev, A.F., Civil service personnel officer. [Electronic resource] / A.F. Nozdrachev., A.F. Nurtdinova A.F., L.A. Chikanova //MTsFER.- 2006. Access from the right-legal system "Consultant Plus".

Nurtdinova, A.F. The role of the state in the mechanism of social partnership / A.F. Nurtdinova // Journal of Russian Law. - 2000. - No. 2. P.5-7.

Nurtdinova, A.F., Problems of correlation of civil and labor legislation in the light of the new civil code / A.F. Nurtdinova, L.A. Chikanova // Law and Economics. -1995. -No. 7.C. 12-16.

Osin, A.A. The content, form and features of the conclusion of a service contract. / A.A. Osin // Labor law. - 2007.- N 5. S. 21-24.

Poletaev, Yu.N. Legal status of state civil servants in the sphere of labor. [Electronic resource] / Yu.N. Poletaev. Access from the reference - legal system "Consultant Plus".

Presnyakov, M.V. Problems of legal regulation of state-service relations / M.V. Presnyakov, Chanov S.E. // Labor law. - 2005.- N 3. S.9-11.

Sedov, V. Labor relations for civil servants [Electronic resource] / V. Sedov // Labor law for personnel officer. - 2007. - No. 7. Access from sprav.-legal system "Consultant Plus".

Sedov, V. The nature of service relations [Electronic resource] / V. Sedov / / Labor law for a personnel officer. - 2009. - No. 1. Access from sprav.-legal system "Consultant Plus".

Starilov, Yu.N. What is happening with the institution of the Russian public service? / Yu.N. Starilov // Journal of Russian Law. -2004.- No. 9. S. 23-25.

Sukhanov, A.E. On the problems of formation and development of Russian private law / A.E. Sukhanov// Interuniversity collection of scientific papers. Civilian notes. Issue. 3. M.: Statute. - 2004.- S. 34-47.

Chikanova, L.A. Legal regulation of service relations in the civil service: issues of theory and practice [Electronic resource] / L.A. Chikanova // Journal of Russian Law. - 2005. - No. 4. Access from sprav.-legal system "Consultant Plus".

Yakovlev V.F. On the interaction of public and private law / V.F. Yakovlev // Public and private law: problems of development and interaction, legislative expression and legal practice: Proceedings of the All-Russian Scientific and Practical Conference.-1998.- P.8-16.

An exception to this rule is the cases listed in Art. 59 of the Labor Code of the Russian Federation, for example, when hiring a temporarily absent employee who is on parental leave. Named by the resolution of the Constitutional Court of the Russian Federation of December 15, 2003 No. 19-The provisions of the Law are recognized as not contradicting the Constitution of the Russian Federation Ivanovo region"On the municipal service of the Ivanovo region" in the part that provides for the conclusion of a fixed-term employment contract with municipal employees replacing positions of category "B" for the term of office of the relevant official of the municipal service of category "A". At the same time, it is stated that the conclusion of a fixed-term employment contract with the indicated municipal employees corresponds to Art. 59 of the Labor Code of the Russian Federation, art. 8 of the Federal Law "On the fundamentals of municipal service in the Russian Federation" (as amended on April 19, 2002), art.

Peculiarities of legal regulation of labor of civil servants (p. 1 of 4)

An appointment order issued on the basis of and in accordance with an employment contract. As for the terms of the employment contract, along with the conditions that make up the content of any employment contract (place of work, job title, qualifications, salary, contract term, rights and obligations of the parties related to the performance of official duties), in an employment contract with a civil servant in accordance with the law, the obligation to ensure the implementation of the Constitution of the Russian Federation and federal laws in the interests of citizens of the Russian Federation is included. In cases where the performance of duties in a public position is associated with the use of information constituting a state secret, the employment contract must include a condition on the obligation of a civil servant not to disclose this information.

Article: features of the legal regulation of the labor of civil servants

They relate to the age, skill level of an applicant for civil service, his state of health, the list of documents presented to him, the procedure for concluding and conditions of an employment contract, etc. The Law on Civil Service, in contrast to the Labor Code, also establishes the age limit for entering the civil service - 60 years Therefore, the establishment of the age limit for entering the civil service and being in the civil service, as due to the specifics of labor. Along with the age limit, the Civil Service Law provides for a number of other restrictions that prevent entry into the civil service and being in the civil service.

Abstract: features of the legal regulation of the labor of civil servants

The specificity of the civil service as a professional activity aimed at implementing the functions of the state, ensuring the execution of the powers of state bodies, in itself implies the existence of such special working conditions, which gives grounds for establishing features in the legal regulation of labor relations of civil servants. These include, in particular, the requirement stipulated by the Law on Civil Service to comply with the age criteria for admission to the civil service. considered as a violation or restriction of the rights and freedoms guaranteed by the Constitution of the Russian Federation.

Question 39:

The requirement of the law to comply with the age criteria for admission to the public service has raised the question of whether the age limit when entering the public service and being in the public service is discrimination, given that the Constitution of the Russian Federation guarantees all citizens equal access to public service (Article 32 ), equality of rights and freedoms of man and citizen, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations and other circumstances (Article 19), as well as the right to freely dispose of their abilities for work, to choose the type of activity and occupation (Article 37).

Labor of civil servants: features of legal regulation

Decree of the President of the Russian Federation of April 29, 1996 No. 604, which approved the Regulation on holding a competition for filling a vacant state position in the federal civil service, recommending that this Regulation be followed when holding competitions for filling vacant positions in state authorities of the constituent entities of the Russian Federation and local governments. Thus, when hiring for a municipal service, the conclusion of an employment contract may also be preceded by a competition on the basis of the listed regulatory legal acts, as well as the laws of the constituent entities of the Russian Federation, which should not contradict federal law.

The law of the constituent entity of the Russian Federation, which imposes additional obligations on citizens in comparison with it, should be recognized as contrary to federal legislation. In accordance with paragraph 1 of Art.

Introduction

It is he who determines the subject of any comprehensive legislative act of the constituent entities of the Russian Federation in the field of legal regulation of the civil service. Many issues of the organization of the civil service are currently regulated by by-laws.

Attention

According to Law No. 79-FZ, a number of decrees of the President of the Russian Federation were adopted, for example, No. 112 of February 1, 2005 “On the competition for filling a vacant position in the state civil service of the Russian Federation”, No. 110 of February 1, 2005 “On the certification of civil servants of the Russian Federation” and others. The Government of the Russian Federation, in pursuance of the decrees of the President, takes appropriate legal and organizational measures.

Labor of civil servants. features of their legal regulation

Important

Federal Law "On the basics of municipal service in the Russian Federation", as well as in Art. 77, 83 of the Labor Code of the Russian Federation and is consistent with the requirements of Art. 47 of the Criminal Code of the Russian Federation. Dismissal with the appropriate conclusion of the attestation commission is similar to the termination of the employment contract due to the inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of the attestation (clauses

and paragraph 3 of Art. 81 of the Labor Code of the Russian Federation). The refusal of a person to provide relevant information, including income and property, as a ground for dismissal is provided for by the federal laws “On the Fundamentals of the Civil Service of the Russian Federation” (Article 12 and Subclause 7, Clause 3, Article 21) and “On the Fundamentals of the Municipal service in the Russian Federation” (Article 12 and paragraph 1 of Article 20). However, only those established in federal laws can be used as grounds for dismissal.

Features of regulation of labor of state civil servants

There are additional grounds for termination of labor relations with state and municipal employees. In particular, the aforementioned resolution of the Constitutional Court of the Russian Federation of December 15, 2003 No. 19-P recognizes the possibility of dismissal from the state and municipal service on the following grounds.

Info

In connection with the recognition of a person serving as incompetent or partially incapacitated by a court decision that has entered into legal force, which corresponds to Art. 21, 25 of the Federal Law "On the fundamentals of the public service of the Russian Federation" and Art. 37 of the Federal Law "On the general principles of the organization of local self-government in the Russian Federation". Depriving a person of the right to hold state or municipal positions for a certain period of time on the basis of a court decision that has entered into force, as the basis for dismissal, is enshrined in clause

3 art. 21 of the Federal Law "On the fundamentals of the public service of the Russian Federation", para.

Features of the legal regulation of the labor of civil servants

In addition to the documents provided for by labor legislation, those entering the civil service are required to submit a certificate from the state authorities. tax service on providing information about the property status and a medical report on the state of health. Other documents may also be required from a citizen, if this is expressly provided for by federal law. All information submitted by a citizen when entering the public service is subject to mandatory verification. must be notified of the reasons for the refusal in writing.

Features of the legal regulation of the labor of civil servants

If for all other employees, according to the Labor Code, the probationary period, as a rule, cannot exceed three months, then for civil servants it cannot be less than three and more than six months. who passed the test, is subject to dismissal, according to the Law on Civil Service, in case of an unsatisfactory result of the test, a civil servant may be transferred, with his consent, to another public position in the civil service. The transfer in this case is also carried out with the establishment of a probationary period for this other position. The rule established by law on the transfer of a civil servant who was hired for the first time and did not pass the test in this position to another public position can hardly be considered expedient.

Features of legal regulation of labor of civil servants of the Udmurt Republic

Law N 79-FZ established General requirements to candidates for filling the position of the state civil service: citizens of the Russian Federation who have reached the age of 18, who speak the state language of the Russian Federation and meet the qualification requirements established by this Federal Law, have the right to enter the civil service. Qualification requirements in accordance with Art. 12 of Law N 79-FZ are the requirements for: - the level of vocational education; - length of service in the civil service (public service of other types) or length of service (experience) in the specialty; - professional knowledge and skills necessary for the performance of official duties. But Law N 79-FZ also contains restrictions and grounds for refusing to accept or perform service.