Fictitious employee liability. Abuse of power. Informal job placement

Any employment contract defines the rights and obligations of participants labor process. This is the main content of the agreement. Employment contract regulates the emerging labor Relations between the organization and the employee. When signing such an agreement, it is important to familiarize yourself with all the points in the official document. All conditions must not violate the rights of the employee. If the terms of the contract are illegal or negative for the rights of the employee, such a contract may be declared invalid.

Recognition of the employment contract as invalid. Foundations

All terms of an employment contract are usually determined initially when signing a document or later on. Additional terms may be contained in additional agreement attached to the main contract. Renewal of the employment contract is also often practiced.

If the terms of the employment contract deteriorate noticeably, the employee has the right to demand from the management appropriate benefits, compensations, which are provided current legislation countries. In the event of a disputable situation, working conditions that worsen the position of the employee may be declared invalid. An invalid employment contract is illegal.

If the conditions are declared invalid, the contract itself may remain valid. However, illegal conditions must be replaced by arbitrary conditions set by collective agreement or applicable law. If any violations are found on the part of the employer, a violation of labor laws can be officially recognized.

Employers also have the right to establish additional benefits and privileges for their employees. This happens due to own funds companies. For example, an employer, under certain circumstances, at its own expense, has the right to:

• shorten the working time of a particular employee
• increase employee leave
• set the employee additional days off.

Features of the procedure for recognizing fictitious employment contracts as invalid

In judicial practice, cases of concluding so-called fictitious labor contracts are not uncommon. The invalidity of employment contracts is proved in court. This is relevant, for example, if the employer deliberately entered into an agreement with an employee retroactively, who will not fulfill the established obligations. The purpose of concluding such an employment contract is often the illegal acquisition of work experience, obtaining wages under a contract without participation in the labor process. In this case, the concluded employment contract is a fake. If such circumstances are revealed, the signed fictitious employment contract is recognized as invalid. All participants illegal activities may be subject to criminal liability. Art. 362 of the Labor Code of the Russian Federation establishes punishment for other offenses when signing employment contracts.

As a rule, employment contracts are declared invalid in such cases when the situation of the employee worsens in accordance with the current legislation. This is possible at the initiative of the two parties to the labor process or the body that monitors and supervises compliance with the current labor legislation of the country. It is also possible to recognize an employment contract as invalid by a court decision or a special commission that deals with various labor disputes.

Some people resort to such an illegal scheme asfictitious employment. For what purpose is this being done and what can it turn into? Let's try to find out.

Women most often resort to such a procedure in order to receive not a social (minimum), but an increased allowance for caring for a child who is under 1.5 years old. There are two important points to keep in mind here.

Firstly, if you do not have very good connections, then a dummy job without any active labor activity impossible.

Because officially you will be listed as Pension, insurance and other deductions will be paid for you. That is, for an employer who agreed to such your employment, it is unprofitable.

Secondly, do not forget that the world is full of "kind" people who, having learned about your happiness, will not fail to harm you. They can apply with a slander to law enforcement agencies or higher management of your organization.

As a result, a sudden internal or even worse prosecutor's check will reveal the fact of data manipulation. And this can end for you and the employer very badly.

All illegally received by you will have to be reimbursed, and even pay a fine. Moreover, due to a non-working woman by law social benefit no one will pay you. That is, you will lose material maintenance in 1.5 years.

Also, a dummy job scheme can be used to obtain a work experience score, which is often required by an employer.

Even having hired you, the employer, seeing you in action, will immediately understand how you worked before. Therefore, it is suitable only for those who really know how to do something, know and will not disgrace themselves in business.

Here you will be fired at best. At worst, a vindictive employer will write in the right place about your former employer who provided youfictitious employment . And everything will start according to the previous scheme: complaints, inspections, proceedings, monetary penalties.

If the scheme of fictitious employment is used for their personal selfish purposes. For example, while working in a state, municipal position, a person can enroll "dead souls" in his staff.

That is, workers who will only be registered, and their salary is executive will take over. Such illegal activities threaten the onset of criminal liability for and service canopy.

That can end in real imprisonment. A similar incident was recorded in 2012 in the city of Serpukhov. There, the head of the kindergarten, who arranged a profitable for herselffictitious employment , got off with 1 year probation (with three years probationary period). But not everyone canhty. And things could end much worse.

Another reason for fictitious employment is the evasion of alimony. If you work at a shabashka, and provide a certificate of your “real” salary to the judicial authorities, the court will set the amount of alimony based on the amount of salary indicated in the certificate.

For evaders, it should be emphasized that the alimony case is transferred to the enforcement proceedings of the bailiffs. This service has the right to independently verify the fact of work of a citizen at the specified address.

In addition, the spouse of the defendant (payer of alimony) has the right to appeal against the illegal actions of her ex-husband, even if there is already a court decision.

Don't forget thatfictitious employment - under any circumstances, an illegal act, for which, depending on the accompanying circumstances, legal liability threatens.

abuse official powers

Abuse of office - dead souls

Recently, there have been more and more reports in the media about bringing to criminal responsibility the leaders of various budget institutions for the employment of "dead souls". The latter are understood as employees who are officially registered at enterprises, but in fact do not fulfill their direct duties. This trend is evidenced by the emerging arbitrage practice.

The concept of "dead souls" was first introduced into circulation by N.V. Gogol in the process of creating the work of the same name. In fact, the idea of ​​the poem is based on real facts from the life of Russian society in the 19th century, and A.S. Pushkin/

The current criminal legislation assumes that the subject of this crime is an official who performs organizational, administrative and administrative functions in an institution. Considering the question of whether a corruption offense was committed by an official, a person holding a public position of the Russian Federation or a public position of a constituent entity of the Federation, a foreign official, an official of a public international organization, as well as by a person performing managerial functions in a commercial or other organization, the courts are guided by notes 1, 2 and 3 to Art. 285, note 2 to art. 290, note 1 to art. 201 of the Criminal Code of the Russian Federation.

In addition, it is necessary to take into account the clarifications of the RF PPVS dated 16.10. 2009 N 19 "On judicial practice in cases of abuse of power and abuse of power."

As a rule, the preliminary investigation authorities qualify the actions of persons who have committed crimes related to fictitious employment of personnel under Part 3 (Part 4 - if the amount of theft forms a particularly large amount) Art. 159 of the Criminal Code - fraud committed using one's official position; Art. 285 of the Criminal Code - abuse of power, as well as Art. 292 of the Criminal Code - official forgery. Decree N 19 proposes to qualify these actions precisely under Art. 285 of the Criminal Code.

An analysis of the materials of criminal cases of this category shows that the employment scheme for fictitious workers is simple. The head of the institution, on the basis of the application of the person, issues an order for his employment. Then, deliberately false information about the hours worked by the employee is entered into the time sheet of the personnel. On the basis of the time sheet, the accounting department of the organization accrues funds in the name of the false employee in accordance with his functional responsibilities and working hours reflected in the corresponding accounting sheet, which actually does not correspond to objective reality. In the future, the wages of the false worker are handed over or transferred to bank card, but eventually gets to the head, who is the initiator of such actions.

Such a scheme of fictitious employment does not always lead to criminal liability of the head. Let's consider several possible situations.

In the event that the head of the organization receives the salary of an employee, his actions are seen as either a qualified fraud using his official position (parts 3 or 4 of article 159 of the Criminal Code), or a disciplinary offense.

Judicial practice knows cases of acquittal of officials who, although they registered “dead souls” for work, however, themselves or their relatives performed labor duties for the registered employee. Hence, the formal employment of persons who do not personally fulfill their duties is not yet a criminally punishable act.

In the given example job responsibilities of a fictitious employee were actually executed, the funds were received personally by the head of a budgetary institution. Practice knows other cases when the labor duties of false workers were not performed, but their salary was spent exclusively on the needs and interests of the institution, which became the basis for terminating the criminal case on a rehabilitating basis.

Since the abuse of power is one of the crimes with a material composition and is considered completed from the moment the consequences occur in the form of a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state, then in the actions of an official due to the absence of such consequences, there is only official misconduct, entailing disciplinary, but not criminal liability.

Analyzing the content of Art. 285 of the Criminal Code, it should be noted that actions contrary to the interests of the service mean that the official acts within the framework of the powers granted to him, but at the same time violates his official duties. If this is not due to official necessity, then the act should be considered as contrary to the interests of the service. Mandatory element objective side of this crime is the onset of consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state, which is in a causal relationship with the act.

In itself, a significant violation of rights and legitimate interests is an evaluative concept, therefore, it is necessary to decide on the existence of such a significant violation on the basis of the specific circumstances of the case, however, in each case, the materiality of the violation of rights and legitimate interests must be justified. It is not enough just to indicate the infliction of significant harm on the legally protected interests of citizens, organizations and the state.

An integral part of the subjective side of the crime under Art. 285 of the Criminal Code, as well as the crime under Art. 292 of the Criminal Code, is the motive - selfish or other personal interest. As a rule, personal interest is expressed in the desire to gain a non-property benefit and may be due to various motives: careerism, protectionism, nepotism, the desire to hide one's incompetence, avoid disciplinary liability for violations, mistakes in work, receive support from influential people, etc.

Establishing the motive of selfish or other personal interest, which guided the person in committing the crime, is mandatory, therefore, the sentence must indicate what exactly such motive was expressed in. In the case when a person uses his official powers contrary to the interests of the service, but does not seek to receive any personal benefits as a result, the motive is the misunderstood interests of the institution and there is no corpus delicti.

A comparative analysis of court decisions taken in similar criminal cases showed that the positions for which false workers were fictitiously employed were very diverse: cloakroom attendant, cleaner/cleaner office space, driver, Social worker, auxiliary worker, authorized by correspondence, stoker, laboratory assistant, plumber, disinfector, fireman, doctor, veterinary orderly, junior educator, senior nurse, watchman, massage therapist, part-time instructor-methodologist, choreography methodologist, music education methodologist, physical education teacher, master industrial training and others... Despite such a wide range of positions, they are united by the following: they are all low-paid, they are not included in the circle of the management of organizations, one employee can be easily replaced by another.

In paragraphs 17, 35 of Decree No. 19, the Supreme Court clarified the distinction between forgery and other elements of the crime.

However, despite such a clear explanation of the Supreme Court of the Russian Federation on the category of cases being analyzed, the question of the presence in the actions of the head of the corpus delicti under Art. 292 of the Criminal Code, for some representatives of law enforcement agencies remains unresolved.

For example, not all persons prosecuted for committing crimes related to fictitious employment of personnel were charged with committing forgery. Without introducing false information into official documents on the implementation job duties it is actually impossible for a false worker to commit this crime. Such mistakes of the preliminary investigation bodies led to the violation of the rights of those persons who were prosecuted for similar crimes, including those under Art. 292 of the Criminal Code, and received more severe punishments.

The practice of considering criminal cases on corruption-related crimes related to fictitious employment of personnel shows that such crimes are most typical for budgetary institutions in which funding is not provided in the proper amounts. The study revealed that the analyzed crime was more often committed in secondary schools, kindergartens, public institutions on social service population, in vocational schools and others. As follows from the testimony of persons involved in these crimes, later acquitted by the court, the reason for their actions to employ "dead souls" was an obvious lack of funds for current needs budget organizations. Due to the lack of funds and the impossibility of organizing permanent sponsorship, the leaders “filled in” gaps in the accounting estimates in this way.

The study showed that the line between the presence of corpus delicti in the actions of the person who organized the fictitious employment of personnel and a disciplinary offense is very fragile and sometimes the preliminary investigation bodies, without understanding the reasons for the actions of the head, without checking and evaluating in the aggregate all the evidence collected, send "disclosed » a case of corruption directed to the court, which ultimately leads to acquittals.

In order to prevent such situations from occurring, the following factors should be taken into account:

1) the composition of the crimes under Art. Art. 159, 285 of the Criminal Code, no, if the false worker's labor duties are performed in full and this is confirmed by the testimony of witnesses, the injured party has no claims, the money (the employee's salary) is spent at the discretion of the head in the interests of the institution. At the same time, funds cannot be turned into the property of the employed person;

2) the composition of the crimes under Art. Art. 159, 285 of the Criminal Code, no, if the labor duties of the false worker are not actually performed, but the funds (the employee's salary) are spent exclusively on the needs of the institution, which is caused by urgent need. In this case, it is necessary to document the expenditure of the received funds for fictitiously arranged persons (checks, receipts, accounting documents). All acquired property must be available and on the balance sheet of the organization. Cash cannot be turned into the property of the employed person.

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The principles set forth in the said article regulate most of the existing possible grounds for the dismissal procedure, and among them there is also a dismissal at the initiative of the employer - a reduction in staff or positions is a type of such dismissal.

• Art. 81 of the Labor Code of the Russian Federation. The said article deals directly with questions relating to when and how an employer can lay off employees on its own initiative. Including as such a reason, a reduction in the staff is provided.
• Decree of the Plenum of the RF Armed Forces No. 2 dated March 17, 2004. The normative document clarifies the application by the courts of general practice of the provisions of the above Art.

My own lawyer

Among them it is customary to single out:

• fairly high earnings;
• no taxation;
• there is no employee responsibility for the work done;
• the opportunity to work and receive a salary together with social benefits;
• additional earnings in addition to official work.

In addition, fictitious employment for alimony in Russia is quite common. In this case, the alimony payer underestimates the real salary or finds an unofficial job, thereby bringing the salary bar to zero.

Attention

Accordingly, a person will pay minimum alimony for the maintenance of minor children. Not entirely fair, but this practice is becoming more and more common.

Disadvantages Fictitious employment has almost no disadvantages.

Defunct workers

Important

federal law 420-FZ of 07.12.2011) (see the text in the previous wording) 2. The same acts that caused a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state, are punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to four years, with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by deprivation freedom for up to four years with or without deprivation of the right to hold certain positions or engage in certain activities for up to three years.

Fictitious employment and responsibility for it

• All decisions to reduce the number of employees or positions should also be reflected in local regulations. The employer is obliged to enter information about the abolition of positions or a decrease in the number of employees in the official regulations.
• Changes in the official regulations in connection with the reorganization, changes in the number of employees or the list of positions must come into force until the actual dismissal of the employee, and not after it.
  The jurisprudence on a fictitious staff reduction in this matter takes the side of the employee, even if the reduction was real, but the change in the job schedule occurred a few days before the employee was fired.
• You have to be very careful with new job descriptions for new employees and to the introduction of new positions in the enterprise.

What slams for a fictitious registration of a non-working worker?

• Informal job placement
• The advantages of this type of employment for the employee and the employer
• What threatens the employer for informal employment employee
• Fictitious job placement

Often difficult financial position makes people look for work in not quite official ways, without formalizing any documents. This is contrary to labor laws, but, nevertheless, the phenomenon exists.

Therefore, we will consider the problem of such employment in more detail. Informal job placement Labor law Russian Federation does not consider such a phenomenon as informal employment.

What is the responsibility for fictitious employment?

This applies to work that is performed by an employee for a short period, but it should not be more than 3 days. Then it is not necessary to register an employee, and this will not be a violation of the law.

If the work continues for a longer time, then it is necessary to conclude an agreement. Responsibility of individual entrepreneurs Administrative liability is provided for entrepreneurs.

Info

How much is the fine for an unregistered worker? If a violation is detected, the amount will be 1-5 thousand rubles. In this case, the work of the entrepreneur may be suspended for 90 days, which leads to losses and the closure of the organization.

Registration costs will be less than fines. But if the employee continues to work like this for more than 1 year, and no taxes were paid for this period, then the possible opening of a criminal case under article 199-1 of the Criminal Code of the Russian Federation. In case of major damage, the fine for an individual entrepreneur for an unregistered employee will be up to 300 thousand rubles.

Fake downsizing

Decree No. 19 The Supreme Court gave clarifications on the distinction between forgery and other elements of the crime. However, despite such a clear explanation of the Supreme Court of the Russian Federation on the category of cases being analyzed, the question of the presence in the actions of the head of the corpus delicti under Art.

292

The Criminal Code, for some representatives of law enforcement agencies, remains unresolved. For example, not all persons prosecuted for committing crimes related to fictitious employment of personnel were charged with committing forgery.

Without entering false information into official documents on the performance of labor duties, it is actually impossible for a false worker to commit this crime.

What is the penalty for an unregistered worker? legal practice

As a result, the state does not receive funds for the maintenance of pensioners, and the employee loses his pension in the future.

• There will be no deductions to the insurance fund, which allows you to use free medical care.
• An employee without registration has no rights to many things. It will be difficult for him to receive payments in the calculation, salary, compensation for vacation.
• When disputes arise in court, it will not be possible to prove one's case.
Thus, informal employment harms the state and the employee himself.

The task of controlling institutions is to identify violations and respect the rights of employees. What fines for an unregistered employee are supposed to be paid by employers will be discussed further.
When can you not register an employee? There is only one case when it is possible to do without official registration.

An employer, when applying for a job without a contract, has a number of positive bonuses:

• tax minimization. The fact is that most of the taxes paid by the employer to the state treasury are charged from the wage fund of the employees employed by him.
  Logical conclusion: the smaller the taxable base, the smaller the amount payable;
• lack of personnel paperwork;
• lack of duties and obligations in relation to an informally arranged citizen. For example, it is not necessary to ensure labor safety, it is possible not to pay the employee the full amount of the promised fee.

If the first item on the list can still somehow justify (from the point of view of the employer) informal employment, then the last item is very doubtful and remains entirely on the conscience of the employer.

Punishment for fictitious employees in the enterprise

Recently, there have been more and more reports in the media about the criminal prosecution of the heads of various budgetary institutions for the employment of "dead souls". The latter are understood as employees who are officially registered at enterprises, but in fact do not fulfill their direct duties.
A similar trend is evidenced by the emerging judicial practice. The concept of "dead souls" was first introduced into circulation by N.V. Gogol in the process of creating the work of the same name. In fact, the idea of ​​the poem is based on real facts from the life of Russian society in the 19th century, and A.S. Pushkin / The current criminal legislation assumes that the subject of this crime is an official who performs organizational, administrative and administrative functions in an institution.