"The woman is created for a man, not a man for a woman" - such a postulate ...
In case of employment, it is necessary to document the relationship between the employee and the new employee. They are regulated not only by labor, but also civil law. Therefore, in need of other people's services, it is necessary to conclude an employment or civil contract with an individual in 2019. Consider what the difference between these types of agreements is the advantages and features of GPC.
A civil-legal agreement (GPC) is an agreement concluded by an entrepreneur or an individual with an individual, implying a one-time provision of services or work with a certain end result without inclusion of an employee into the staff. At the same time, work can be carried out without writing to the employment record.
Criteria of a civil law agreement:
- a lump sum of work or service;
- lack of monitoring the work process by the employer;
- the inability to establish the schedule and the order of work, the definition of only the final time limits of the order;
- evaluation of only the final work outcome.
The components of the civil employment contract are exactly the same as any other contractual document:
- the subject of the contract - the final result expected from an individual;
- relations participants - customer and performer;
- the deadline for fulfilling the obligations - the final or with phased intervals;
- the amount of remuneration and the procedure for its payment;
- additional conditions for the parties.
What are civil law contracts
These agreements can be classified depending on their content.
Property contracts. They aim to regulate the transfer of property to property or rent:
- donation;
- exchange;
- supply;
- purchase and sale;
- rent;
- leasing;
- hire;
- hiring;
- loan.
Contract agreements implying a certain work:
- domestic;
- construction;
- project and survey;
- ensuring the needs of municipal and state structures;
- participation in equity construction and others.
Contracts aimed at providing services:
- actual - transportation, freight, storage, compensated provision, trust management of property;
- legal - guarantee, agency services, Commission;
- financial - loan, credit, insurance, non-cash payments, banking services, etc.
GPC contract and employment contract: what's the difference
Compare these types of contractual relations:
- Rights rights. The labor contract also applies the terminology and rules for the Labor Code of the Russian Federation, and the civil employment contract is governed by civic law.
- Parties to the contract. When the employment contract is signed, its parties are called an employer and an employee, in the GPC treaty, this is a customer and performer.
- Remuneration. The concluded employment contract receives a salary, that is, a fee for labor, and the signatorous agreement of GPC is a remuneration for the result of labor.
- Warranty. The worker receives social guarantees from the state, the employer pays him sick leave, vacation, etc., lists contributions to social funds; The performer is not entitled to count on it.
- Document on the performance of work. Not required when performing duties under an employment contract, it is obligatory when issuing under the GPC treaty.
- Labor routine. It matters for labor relations, is not important in civil law.
Pros and conscor-legal contract with an individual in 2019
Any form of registration of contractual relationships has its advantages and disadvantages for both parties. Let's analyze which risks and bonuses are expecting a customer and artist who signed a civil-law agreement.
GPH Treaty: Pros and Cons For employee
In contrast to labor law, the term "performer" is adopted in civilian, since it performs a work or service of it, and not on an ongoing basis.
| No. p / p | Pros for artist | Cons for artist |
| 1 | It may be retrained to an employment contract if formally has its signs. | It is considered the worst alternative to the employment contract, there are no records in the employment record. |
| 2 | The performer is completely autonomy, it does not take the work schedule. | The performer cannot interrupt the work, referring to the hospital or taking leave at his own expense. |
| 3 | The artist does not concern the moments associated with the work in the team: Saturdays, meetings, corporate standards, etc. | The artist is not part of the organization. |
| 4 | No overtime. | Lack of opportunity to somehow increase the specified fee. |
| There is no need for many formal moments: medical examination, certification, etc. | No social payments and compensation are made. | |
| 6 | Itself regulates its activities, responding only for the result of work, minimum of external control. | It is not provided by the employer with work tools, materials, a workplace, organizing the process independently. |
| 7. | Money only for the real result, the ability to agree on the procedure for paying. | The termination of the contract on the initiative of the Contractor will require him to pay a penalty to the customer. |
Pros and cons of the GPC treaty for the employer
In civil law, the employer is called the Customer because it provides the performer not by constant work, but a one-time order.
| No. p / p | Pros for customer | Cons for the customer |
| 1 | Work should be executed on time. | It is impossible to ask the artist "accelerate". |
| 2 | There is no need to take care of the workplace, tools, personal protective equipment, social package, etc. | No possibility to quickly control the work process. |
| 3 | Payment of remuneration is made only at the end of work, and at least twice a month. | It is impossible to depart the performer, because in the GPC treaty there is no concept of "award". |
| 4 | Savings on some contributions. | It will not work on the performer from the point of view of the rules of labor regulations. |
| Tax benefits (more about them below). | Possible retraining of the GPC treaty in labor in judicial procedure with serious financial consequences. |
Download form and sample civil contract for 2019
Recalculation of GPC treaties in labor contracts
As we can see, there is a lot of benefits for the employer in the design of a civil contract with an individual instead of labor, in particular, a significant financial savings and lack of many formal moments.
Therefore, employers often prefer to arrange relations in this way. But the law does not allow this: the controlled bodies carefully study the prisoners of GPC and in case of insufficient compliance with the requirements may retracted them into labor.
Alarming moments:
- blurred formulated subject - in the GPC treaty, the subject must be specified clearly and unequivocally, the services should be listed, and not specified "in general" (for example, not "providing construction services", but a list of specific types of work);
- periodicity - if a civil-legal agreement with the same executor lies several times a year, it is a reason for the attention of controllers and an attempt to retracted;
- terms of labor law in the text of the contract - are not allowed at the conclusion of the GPC treaty (not "salary", but "fee for the service provided or performed", not "employer and employee", but "Customer and Artist", etc.);
- actual submission- the artist is not uncomplicated by the Customer, it provides only the result of labor that the customer can accept or not accept, submission in practice can provoke retraining;
- terms of "calculations" - Should be clearly spelled out in the text of the contract and do not coincide with the dates of the advance and salaries from staff members.
Attention! One sign in itself can not yet legally substantiate the retraining of the agreement of the GPC B, but the group of 2-3 already significantly increases such a probability.
Art. The 19th Tk of the Russian Federation allows the Contractor to initiate the transformation into an employee:
- by agreement with the employer, writing a preliminary application for the request to retrain the GPC contract in labor;
- on the appeal of the employee in the State Inspectorate for Labor and the decision made by it, if it was not appealed in court;
- by the tribunal's decision.
The customer will be forced to become an employer by a court decision if the documents authorized by the regulatory authorities will be provided:
- State Labor Inspectorate;
- FTS (added in 2017).
After retraining, the employer will be obliged to put into the budget of social contributions and tax payments for its employee, and additionally - penalties, and for the entire period of work, which will be considered cooperation in the employment contract.
For this period, the performer who has become an employee will have to issue wages, social payments, and also to pay for overtime and work on weekends and holidays.
Important! In case of retraining of the contract in labor, it will be necessary to detach the employee's salary and calculate all payments on taxes and fees. It is possible to attract an employer to administrative responsibility with large fines.
Features of the conclusion of the GPC treaty
Consider important features of the conclusion of this type of contract.
- The contract provides for the fulfillment of work or the provision of services for a certain period.
- There is no obligation to subordinate the Contractor by the Rules of Labor Regulations, the schedule, the conditions of any internal regulations.
- Not the work of the artist is paid, but the result of this work.
- The performance of the contract must be documented by an acceptance certificate act.
Who can enter into a civil-law agreement
In order to act as a performer, an individual must belong to one of three categories.
- Treaty with IP. Organization or IP is entitled to conclude a treaty agreement with an unnecessary individual, which is an individual entrepreneur. The law is not prohibited to conclude a contract with a citizen - not an IP, but it can be fraught with:
- for the performer - recognition of its actions by entrepreneurial activities without registration, but is provided for administrative responsibility;
- for the customer - the retraining of the GPC treaty in labor.
- Contract with a staff member. The law does not prohibit the simultaneous conclusion of labor and civil law contracts. The main thing is that the subject of the prisoner of the GPC treaty is not associated with long-term work, which could be compatible. For example, a storekeeper, being on vacation, completed the cleaning of the room after emergency repair. If the cleaner function was given to him on an ongoing basis, it would be necessary to issue a contract of GPC, but compatible.
- A contract with a citizen of another country. If the Inogen is a highly qualified specialist and has permission to work in the Russian Federation, it is legitimate to sign such a contract with it, informing the employment service, FMS and tax.
Attention! It is allowed to conclude GPC treaties and with a legal entity.
What taxes and contributions are paid from employee income under the GPC Treaty
The amount due to the civil-law contract consists of two parts:
- remuneration for the artist;
- reimbursement of the costs with which the contract was conjugated.
Taxes are recorded for each of these parts in a certain order.
Taxation of remuneration
The performers are income of individuals, and therefore subject to the incomplete NDFL (sub. 6, paragraph 1 of Art. 208 and paragraph 1 of Art. 210 of the Tax Code of the Russian Federation). According to these payments, the employer must report on the FTS as a tax agent, Passing on time and
The NDFL rate depends on the artist's category:
- 13% is allowed to deduct from the incomes of residents of the Russian Federation, including foreign highly qualified specialists;
- 30% applies to non-residents, including foreign performers.
This tax must be retained when paying remuneration and listed either on the day of actual transfer of money, or on the day of enrollment to the Contractor. If the Contractor is issued a remuneration in a non-monetary form, it is necessary to inform the tax.
Important! When concluding a treaty of GPC with an individual entrepreneur NDFL, it is not necessary to hold, because the IP pay revenues from their entrepreneurship.
Tax deductions
NDFL taxpayers have the right to carry out the tax deductions allowed by law (ch. 23 of the Tax Code of the Russian Federation):
- professional deduction - you can reduce the tax base for the amount of actually incurred costs under the contract;
- standard deduction - applied at the rate of NDFL 13% (these are the usual deductions for themselves and children's tax deduction);
- property deduction under the GPC treaty is not provided.
Payment of Contributions to Social Funds
The remuneration under the GPC treaty is also subject to insurance premiums in the FIU, as well as the salary in the labor contract. At the same time, the contribution rate to the Pension Fund is 26% of the employee's salary.
The exception is paying to the FSS, since the Customer does not control the work process by the Contractor, and therefore is not responsible for possible injuries, an accident or a professional disease.
Attention!Also will not be paid compensation due to maternity. But it is possible to provide such insurance by an additional point of the contract.
The procedure for the conclusion of labor relations (under the agreement of the GPC)
The procedure for concluding the GPC treaty is similar to the establishments of any contractual relations, since it is the establishment of legal relations between the parties, which is regulated by ch. 28 Civil Code of the Russian Federation.
It passes the following steps:
- Offer - Party offering to conclude an agreement, directs its proposal to the other party in writing or oral form. It should conclude significant contractual conditions and intent to conclude an agreement after the answer.
- Accept - answer to offer to conclude a contract.
- Formulation of the text of the contract.
- Signing by the Parties.
How to draw up a GPC treaty
A civil legal contract with an individual contains the following mandatory sections.
- The subject of the contract is the result of the execution of work or the provision of the service.
- The contract validity period is a specific date to which the claimed result must be submitted.
- The rights and obligations of the Parties - the Contractor undertakes to achieve the result declared in the subject of the contract, and provide it to the Customer, and the latter undertakes to pay him a reward in agreed. The performer has the right to reassign execution or attract additionally third parties.
- Responsibility of the parties - the sanctions are described in the event of non-fulfillment of the terms of the contract.
- Conditions for change and termination - it is necessary to specify, its action will cease under the Customer's Agreement or the Contractor or when the marked period is completed.
- Details of both sides.
Change and termination of civil contracts
You can make these actions in a voluntary or compulsory.
By agreement of the parties, this can be done according to any procedure and at any time of the contract.
If only one side requires changes or termination, the question is solved by the court if he deems the requirement is reasonable. This is possible only if one of the parties have violated the prescribed conditions.
Agreement on the change or termination of the contract for the goodwill of the parties is compiled and signed by a similar procedure. It comes into force from the moment of signing.
Forced termination on the court of the obligations of the parties is changing or terminated from the date of the declaration of the court by virtue.
___________ «__» _________ 201__
_____________________ referred to "Customer", in the face of __________________________________________________, acting on the basis of ____________________, on the one hand, and Full name (date of birth _________, passport series _______, __________, issued ___________________________________, Date of extradition ______________, registered at: ___________________________________________, referred to hereinafter "Consultant"On the other hand, further called "Parties", concluded this Agreement (hereinafter referred to as "Treaty") on the following:
1. THE SUBJECT OF THE AGREEMENT
1.1. The consultant on the task of the Customer on its own by the customer has a set of services related to ______________________________________________________________________________________________________________________________ in accordance with the Calendar Plan for the provision of services (Appendix No. 1 to this Agreement), further "Services".
1.2. Services are found in the period from ___ ___________ 201_ at _____________ 201_
1.3. The services rendered are drawn up by the monthly signing of the Act on the services rendered in two copies in accordance with this Agreement.
1.4. Under this Agreement, the consultant has no right to conclude / change / terminate any contracts on the customer's person, is not a sales representative and / or agent of the Customer, and cannot speak on behalf of the Customer in any transactions, has no right to make applications, give orders, promises from the customer's face.
2. Case Parts
2.1. The consultant undertakes to provide high-quality and in time to provide services under this Agreement in accordance with the Calendar Plan for the provision of services (Appendix No. 1 to this Agreement).
2.2. The task is undertaken in a timely manner to pay a consultant to the monetary remuneration for the services rendered to him under the terms provided for by this Agreement, as well as to ensure a consultant necessary for the provision of services under this Agreement technical information and customer / client documentation.
2.3. The consultant undertakes to provide services qualified, carefully refer to equipment and to customer / client materials during the provision of services.
2.3. The consultant undertakes to follow the rules of the client's internal labor regulation and maintain all the confidential information of the customer and the client specified in paragraph 1.1. actual agreement.
2.4.All expenses associated with the stay of the consultant at the provision of services and the Customer carries the consultant himself.
3. Cost, conditions and procedure for calculations
3.1. The cost of the service consultant under this Agreement is ______________ (_________________________________) rublesper month, of which, in accordance with the legislation of the Russian Federation, the Customer is held and paid to the budget of the Russian Federation NDFL (13%) in the amount of _______________ (________________________________) rubles.
3.2. The task pays the cost of services in accordance with clause 3.1. This Agreement within 10 (ten) calendar days from the date of signing by the Parties with the relevant monthly act on the services provided.
3.3. Not later than 3 (three) working days after the end date of the next calendar month, the consultant reports to the customer a report on the provision of services, which is consistent monthly and is signed by the Customer and the parties sign a monthly act on the services provided under this Agreement.
3.4. Consultation is paid the cost of services (minus NDFL) in accordance with clause 3.1. This Agreement is in non-cash - the consultant bank account specified in this Agreement. In case of incomplete month of service provision, the cost of services for incomplete calendar month will be determined, based on the number of full calendar days in the month of the provision of services.
4. Responsibility of Party
4.1. Responsibility of parties for failure to fulfill or improper fulfillment of obligations under this Agreement is governed by the current legislation of the Russian Federation.
5. Term of this Agreement
5.1. This Agreement shall enter into force on the date of signing and is valid until the parties fulfill the obligations under this Agreement.
5.2. This Agreement may be terminated in coordination of the parties by signing by the Parties of the Supplementary Agreement.
5.3. This Agreement may be terminated in a one-sided extrajudicial order by any of the parties, subject to the prevention of the other party 1 month before the termination date. All services rendered to the termination date must be paid by the customer.
6. Other conditions
6.1. The parties are exempt from liability for non-fulfillment of obligations under this Agreement upon the occurrence of force majeure (emergency and unpredictable circumstances under these conditions - natural disasters, military actions, blockades, etc.), subject to the immediate notification of the other party on the occurrence of such circumstances no later than 3 (three) calendar days from the date of the onset of these circumstances.
6.2. This contract is drawn up in two copies of equal legal force. Each instance must be signed by both parties, and each side receives one copy. Appendix No. 1 is an integral part of this Agreement.
Legal addresses and details of the parties.
|
CONSULTANT: |
CUSTOMER: |
|
(date of birth _______________, passport series __________, № ___________, issued ________________, date of extradition ___________, registered at the address: _________________________________________ Inn - ________________________ Bank account: ________________________ Bank details: Inn Bank ____________________ |
______________________ Legal address: Tel.: (XXX) XXX-XXHH Fax: (xxx) xxx-xxhh Bank details: P / s in ZAO "Name of the Bank" |
|
Full name |
______________________________ _______________________ /_______________/ |
Appendix No. 1 to Agreement No. _____________ from ______________
CALENDAR PLAN
|
Services of services |
Reporting document |
Term of the provision of services |
|
Act on services rendered; Service Report |
Ending: |
|
|
Act on services rendered; Service Report |
Ending: |
|
|
Act on services rendered; Service Report |
Ending: |
|
|
Act on services rendered; Service Report |
Ending: |
|
|
Act on services rendered; Service Report |
Ending: |
|
|
Act on services rendered; Service Report |
Ending: |
|
|
Act on services rendered; Service Report |
Ending: |
|
|
The cost of services provided by the Contractor under this Agreement is _______________________) rublesper month |
||
|
CONSULTANT: |
CUSTOMER: |
|
_____________________ (FULL NAME) |
________________ (______________) |
Contract agreement N. ____
___________ "___" ___________ ____
Person ________________________, acting
Based on _____________, refer to the following "Customer", with one
Parties, and citizen / Russian citizen _________________________, refer to
In the future, "contractor", on the other hand, concluded this
Next Treaty:
1. THE SUBJECT OF THE AGREEMENT
1.1. The customer charges, and the contractor accepts
Obligation to fulfill the following work: ___________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
(accurate and detailed description of the work)
On time with "___" _________ 200_ to "___" __________ 200_ (by
The expiration of the specified period shall be terminated.)
1.2. Work must meet the following requirements: ______________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
_____________________________________________________________________.
1.3. The customer is obliged to accept and pay for work in a timely manner.
1.4. This Agreement is a civil-law agreement,
which the norms of civil law are applied.
2. Privacy
2.1. This Agreement, information and documentation obtained during the implementation
the Company's consent. The contractor will not be ever without prior
the written consent of the company to disclose directly or indirectly to any third party
any confidential information about the company, including information about
Companies, financial and other conditions of suppliers,
customers, customers, landlords and tenants, sources and methods for obtaining new
activities or methods of maintaining and managing relevant activities
Companies and its affiliates. For the purposes of this Agreement, the term "confidential
information "includes without limitation any information, directly or indirectly affecting
A company obtained or developed by the Contractor during the fulfillment of its obligations
under contract.
2.2. All confidential information remains the property of the company. Contractor in
the company's demand immediately returns companies all documents (including without
printed, handwritten restrictions, computer and other software carriers),
provided by the company or any of its representatives to the contractor or developed
Contractor in the course of fulfilling its obligations under the contract, and does not leave
no copies, excerpts or other fully or partially reproduced copies
confidential information. In case of such a requirement, all documents
office notes, notes, computer floppy disks, CD ROM discs or other materials,
compiled by a contractor based on confidential information should be
the company immediately transferred.
2.3. Despite the refund of confidential information and materials prepared for
its basis, the obligations of the Contractor regarding confidentiality, as well as
other obligations under this Agreement retain strength and after termination
Contract.
3. Size and payment procedure
3.1. For the work done, the customer pays a remuneration contractor
Many people are looking for part-time job, but not part-time, because it obliges to work for 4 hours a day. Therefore, many are issued in civil law agreements. Let's look at the features and nuances of its preparation and work.
Features of the conclusion of a civil contract
Immediately it should be said that such an agreement can be concluded both between individuals (for example, to provide consulting services) and between IP, a legal entity and an individual for performing certain types of work. In any case, the contract is issued for a certain period and is considered temporary.
The main advantage for a legal entity in the design of GPAP in a more simplified employment procedure. For example, under this contract, it is not necessary to enroll employee to the staff, exercise social benefits that minimizes the processing of accounting and personnel documents. In addition, all relations in the civil-law contract are governed within the framework of the Civil Code of the Russian Federation (in more detail - in 420 article).
An important advantages for the employer can also be attributed:
- If the employee has lost its tools when fulfilling the task, they were spoiled, the employer is not responsible for it.
- There is no need to spend money on creating and providing a workplace, which minimizes spending.
- No need to conduct various deductions - in the FSS, the Pension Fund, to pay personal income tax.
All these nuances do not need to be indicated in the preparation of a civil contract. In addition, you do not need to make entries in the workbook. By the way, this possibility of employment is only when the GPA is design.
In all other cases, the employer is obliged to issue an employment record, make a record in it, to make out other personnel documents for an employee.
But there are also disadvantages:
- There is no possibility to control the progress of work, which spends executive to execute the order.
- If the Contractor is not an IP and does not pay taxes, a fine may be imposed on it.
It is also worth noting about the disadvantages and advantages for the executor of the order. The pros will be attributed to:
- The cost of working works usually exceeds the company's salary.
- The customer does not have the ability to control the work, not "standing above the soul."
- No need to follow the working schedule installed in the company.
But there are disadvantages. These include: the lack of vacations, social guarantees.
In which cases is a civil contract?
The GPA is often used by organizations to disguise real labor relations with their employees, since this allows not paying taxes and other deductions. But it must be remembered that this practice will result in the end to fines and administrative responsibility, since it is not legal. And if there are long-term labor relations between the organization and the IP, then over time they can be retracted to the employment contract, which has its own "consequences", for example, the need for equipment of the workplace, the payment of personal income tax and other contributions.
In this case, labor relations will be regulated not to be regulated by the Civil Code of the Russian Federation, but the Labor Code of the Russian Federation, which will lead to the need to provide holidays, pay wages at least two times a month.
At the same time, the executor of the order may be achieved through the court to recognize such relations with labor, with the result that the employer will be obliged to pay him compensation for violation of rights. And to the organization itself, claims will be made by controlling services in the amount of up to 100,000 rubles for legal entities and about 10,000 for IP.
But this does not mean that entering into civil law agreements should not be. It is just necessary to comply with such conditions as:
- The actions of the artist should not be in labor duties, that is, it should not execute them on a regular basis.
- Work should be one-time.
- The document necessarily attributes the scope of work.
The main types of GPD - What are the contracts?
The Civil Code provides several types of such a document. So, a civil-law contract may be:
- It is drawn up to perform a certain type of work. Its main feature can be called mandatory provision of an act of work performed, which should sign an employer.
- Signed to provide some types of services. For example, veterinary, legal, consulting, etc. After the provision, the Contractor receives a certain amount, and the contract is considered to be fulfilled.
- It is drawn up for comprehensive services. For example, the employee hired under the contract constitutes the transaction, getting a percentage from them.
- Agreement agreement. For example, the employee performs any transactions on behalf of his employer, and receives payment for it. At the same time, the responsibility for the concluded transaction lies at the employer.
At the same time, none of the concluded treaties falls under the operation of the Labor Code of the Russian Federation and is regulated exclusively to the Civil Code of the Russian Federation. That is why the employer has no right to regulate the actions of the employer, monitor its working time, since in this case the result is important.
Document structure - disassemble all the nuances
A civil contract with an employee does not have an established form, because it most often is in arbitrary form. The main thing is that this document contains the following information:
It is also worth entering other conditions if they are. For example, you can enter the grounds for removing responsibility from the parties in violation of the conditions that are inscribed in the contract. Most often here include circumstances, independent of the parties. For example, this is a catastrophe, natural disasters, etc. The details of the parties are additionally affiliated and their signatures are put.
Nuances of the conclusion of civil law contract
The contract must be concluded in two copies, one of which remains at the employer, and the second - the employee. Employees of the personnel department should be prepared by the preparation of such a document, after which it is registered in the accounting department or the personnel department. If the document draws up an IP, then he himself, as an individual, should occupy design issues.
Payment is carried out on the calculation of the contractor, which is specified in the document after the work of the work of the agreed contracts.
After the conclusion, the contract must be stored in the organization's archive for at least five years together with other documents. The only nuance - it cannot be stored along with the employment contracts, which are taken to the staff of the company, the more shelf life of such documents is 75 years.
The procedure for termination of the contract - step by step
To terminate the GPA, it is enough to apply for the employer's name or you need to compile a separate agreement, where new deadlines will be spent. Most often for this, the organization's form is used.
The document needs to register the grounds that led to the termination are listed by papers that will confirm the delivery of work, for example, the act. At the same time, it is necessary to register that the parties do not have complaints.
The difference between the GPAD and the employment contract
Let us analyze in more detail what the differences between the two of these types of contracts. First of all, we are talking about the fact that they are governed by different codes - civil and labor. But there are also other fundamental differences, including:
In contact with
In the work of new specialists, many employers draw up employment contracts with them, because legislatively all participants in various labor processes should formally register their cooperation. But in some cases, the employer is inconvenient to carry out the processing of numerous documents for the official consolidation of an agreement with the employee, especially when it comes to one-time services or works.
In such situations, a civil contract is used, providing for the performance of work in the agreed period. According to Art. 420 Civil Code of the Russian Federation, he is a legal entity agreement with a physical (legal) person, defining the appearance, suspension or change of legal relations. At the same time, the employer is not obliged to provide the employee the required tool and the workplace. The contract does not provide for a specialist social guarantees, social and medical insurance. After performing the work, the face receives a salary, but the costs incurred by the working during their execution are not reimbursed.
Types of such agreements
There are the following varieties:
- The responsibility of the one party for the implementation of certain works, which are surrendered to the second party (household or building in a row, in a row for design and survey work). The end provides for the preparation and coordination of the act on the work performed.
- According to the implementation by the Contractor of concrete works and their payment by the Customer. These include: medical, veterinary, travel, communication services, training, etc. Payable work on the fact of their receipt and approval of an act of acceptance acceptance.
- When compiling, one side performs legal actions for the customer, after which it receives remuneration from the principal.
- Commission agreement It is envisaged to carry out transactions by a commissioner (one party) on behalf of the Committee (second party) from his own name due to the committee. At the same time, responsibilities and rights are assigned to the commissioner. Commission remuneration is paid for the implementation of services.
- Agency Agreementit is envisaged to perform certain legal actions by the agent from its own name due to the principal. According to the deal, the agent shifts the obligations to the second side. Payment of services is made after the reporting agent on the actions performed.
Differences from the employment contract
The difference between civil and legal agreement is that it does not fall under the Labor Code. With such a working specialist there is no prescribed holiday and work time, job descriptions. It is not obliged to obey the norms of labor regulations within the company. It is not common for warranty and compensation for the Labor Code of the Russian Federation (disability allowance, promotion, premiums, paid leave).
The main differences are as follows:
- In the first case, the performer must perform a specific task known in the preparation of the document. According to the employment contract, the specialist is obliged to work on a certain position of software, fulfilling the instructions of the leaders.
- Contractors with performers independently determine the sequence of implementing the assigned duties, performing work at their own expense. And the employee must comply with the established rules of labor regulations, the time mode. An employer provides it with everything necessary, pays compensation for the use of its own property and reimburses other costs that were made in the interests of the company.
- Contractors with performers do not receive salary. The Agreement pays for them a fee.
- By the employment agreement, the employee himself fulfills his duties. With a civil agreement and in the absence of a ban, the Contractor may appoint his duties to third parties.
- Such a document does not reflect the position of a specialist, a tariff rate or salary, premiums, surcharges and working hours. Also in the employment record there is no appropriate entry.
If the company has long been with one specialist civil law agreement on the implementation of the same activity (services, works), then it has signs of an employment contract. For incorrectly drawing up or similar to a labor contract under paragraph 1 of Art. 5.27 COAP of Russia with the organization is charged a fine of 30-50 thousand, from an official and IP - 1-5 thousand rubles. Perhaps suspension of activities for up to 1 month.
You can learn more about all the differences from the following video:
Pros and cons for the employee and employer
The following advantages of civil law agreements should be noted:
- the possibility of paying a smaller amount of tax and obtaining certain benefits;
- when using the performer during the work of personal belongings, their cost is not refundable;
- for a specialist, it is not necessary to allocate social package, workplace and nutrition;
- no payment for social and health insurance is required;
- payments are not related to salary of other workers.
The disadvantages for the employer include:
- the inability to control the time spent on the implementation of the services;
- if the employee is not an individual entrepreneur and does not pay taxes, then an administrative penalty is charged to it;
- when you assign one inaccuracies, the contract can be equated with the work.
Pros for employee are the following:
- the cost of wages may exceed the salary of other specialists;
- lack of control by the customer;
- there is no need to comply with the internal work schedule;
- no need to take part in the company's events.
The disadvantages include the specificity of remuneration, no vacation and social guarantees.
Nuances and conclusion
When drawing up an agreement between a specialist and the customer, the following details are negotiated:
- start and completion of services;
- type of activity implemented and performance rate;
- sequence of payment of results and acceptance;
- responsibility of persons for violation of contractual conditions.
Payment of remuneration is carried out in accordance with the order of the head. At the same time, only for a contractual contract and the agreement on compensated provision of services is required to draw up an act of work performed. When drawing up the remaining types of agreements (commission, instructions, agency), the compilation of acts is not provided. They are formed only if there is an appropriate reservation in the contract.
It is important to do economic Justification of Costs of Civil Legal AgreementsWhat is necessarily for tax authorities. The documents need to register the responsibilities of full-time and abnormal specialists.
Major points
The contract should be drawn up for each side separately. It does not indicate tariff rates, allowances, salary, premiums and the position of the employee, not recorded in the employment record.
Before drawing up the agreement, the number of mandatory items is determined, otherwise it will be considered nonconnected. Significant conditions are defined for the performer and employer.
The form of drawing up document is as follows:
- Preamble. The name of the collaborating parties, the date and place of compilation.
- Subject of the agreement. Type of services or work performed by the employee, the obligations of the customer and the result.
- Calculation sequence, type of payment and cost of remuneration.
- Validity. Until the specified time, the Customer has no rights to require the results, and the delay of work after the end of the deadlines will be considered non-fulfillment of obligations, and their employer may not refund.
- Responsibility of participants. Clearly indicate sanctions to the customer (with a non-payment or money delay) and the Contractor (with the failure to fulfill obligations).
- The sequence of solving controversial situations. This item allows you to solve many disputes in pretrial order.
- Additional conditions. They can not be made to the contract. These may be requirements for the terms of termination of the agreement, confidentiality, fines for violation of obligations, etc.
- Requisies of participants: initials, TIN, bank accounts, signatures of the parties and printing.
- Act of acceptance and transmission.
Taxes
Basically, the employer is committed to a conclusion with a specialist such agreement, as it saves taxes. In accordance with paragraph 3 of Art. 238 of the Tax Code, money paid for the services of individuals on such contracts is not made to the tax base for the amount to be paid to the FSS (2.9%). They are not charged with accrual insurance premiums for social security and occupational patrols.
Accrued insurance contributions to the Pension Fund and FFOMS, retention and payment of income tax. Accounting for salary and personnel records of such specialists is not carried out, therefore it is more profitable to the employer and easier to conclude with a specialist precisely such a contract.
