Legal nature of the volunteer agreement
Volunteer movement now is becoming widespread. It is not surprising that the legal regulation of volunteering is interesting not only for the volunteers (including potential volunteers) but also for the recipients of this help. Unfortunately, such federal or regional regulation is virtually lack in Russia that is why, in practice, these relations are regulated by contracts with volunteers. But the legal nature of such contracts is not clear so far.
There are 2 different points of view on the legal nature of volunteer agreement: like a kind of a labour agreement and a type of a civil contract. Attribution of a volunteer agreement to a particular type of contract has great practical importance. Differentiation of these types of contract can be arranged by several criteria.
First criterion is a subject matter of a contract. Labour process is the subject of work relationships, while the subject of the civil contract is the result of labour (as a rule, finished product). The subject matter of volunteer agreement is closer to labour relationships, because namely the process of volunteer activity is important.
Second criterion is a term of the contract. There are 2 variety of the labour contract: fixed-term and open-ended. The volunteer agreement as the civil contract can be only fixed-term.
The next point is that the employee does his or her work personally, while the civil contractor can hire other workers or even organizations. The volunteers cannot hire or ask somebody to do their work instead them and it indicates the nature of the employment relationship.
Moreover, the employer provides the employee the workplace, equipment, etc. The volunteers, as a rule, do not have their own equipment for work. It should be provided by other party (a feature of labor relations). The volunteers as the employees obey their heads, their managers. But civil contract parties are independent from each other.
And the last but not least criterion is that labour of the employee is always paid. Volunteering is generally considered an altruistic activity and is intended to promote goodness. Labour legislation does not provide the possibility to involve the employees under the labor contract to undertake voluntary work. Thus, the employer may not conclude the labor contract with the volunteer without payment for it. This way, performance of works or services can be carried out within the framework of civil relations regulated by civil legislation.
The civil law does not expressly provide for these types of contracts, as free provision of services or works. However, according to part 1 Article № 421 of the Civil Code of Russia, citizens and legal entities are free to establish their rights and obligations under the contract and the right to determine its condition, except cases where the content of relevant conditions are prescribed by federal law or other legal acts.
The volunteer agreement has a lot of similarities with the labour contract, and one the most important of these similarities is a subject matter of a contract. But the main obligation of employees is to do their work, and the main corresponding obligation of the employer is to pay for it. That is why we can conclude that the nature of the volunteer agreement has civil character according to the Russian law and can be considered as the kind of civil contract between a volunteer and other party.
Е. В. Отставная
|Опубликовано 04.01.2020 13:48 | Просмотров: 242 | Блог » RSS|