Commission of the state body on official disputes. Conflict of interest and individual service disputes in the public civil service

In the process of civil service, individual service disputes may arise. According to the Federal Law "On the State Civil Service of the Russian Federation", an individual service dispute is an unresolved between a representative of the employer and a civil servant or a citizen entering the civil service or previously in the civil service, disagreements on the application of laws, other regulatory legal acts on the civil service and service contract, which are declared to the body for the consideration of individual service disputes.

Individual service disputes are considered by the following bodies for consideration of individual service disputes:

commission of the state body on official disputes;

The procedure for considering service disputes in service dispute resolution bodies is regulated by this Federal Law and other federal laws, and the procedure for considering cases on service disputes in courts is determined by the civil procedural legislation of the Russian Federation * (104).

The commission of the state body on service disputes is formed by the decision of the representative of the employer from an equal number of representatives of the elected trade union body of this state body and the representative of the employer. Representatives of the elected trade union body of this state body are elected to the commission on official disputes at the conference of civil servants of the state body. Representatives of the representative of the employer are appointed to the commission on service disputes by the representative of the employer. The Service Disputes Commission has its own seal. Organizational and technical support for the activities of the commission on official disputes is carried out by a state body. The Commission on Service Disputes elects a chairman and a secretary of the commission from among its members.

An official dispute is considered by the commission on official disputes if the civil servant, on his own or with the participation of his representative, did not resolve the differences during direct negotiations with the representative of the employer. A civil servant or a citizen who enters the civil service or was previously in the civil service may apply to the commission on official disputes within three months from the day when he knew or should have known about the violation of his right. In the event that this period is missed for valid reasons, the service dispute commission may restore this period and consider the service dispute on the merits.

A written application of a civil servant or a citizen entering the civil service or previously in the civil service received by the commission on official disputes is subject to mandatory registration by the said commission on the day of its submission.

The commission on service disputes is obliged to consider the service dispute within ten calendar days from the date of submission of a written application. The procedure for consideration of a service dispute by the commission on service disputes, as well as the procedure for making a decision by the commission on service disputes and its execution is regulated by federal law. The decision of the commission on official disputes may be appealed by any of the parties to the court within ten days from the date of delivery of a copy of the commission's decision to it. In case of missing the established period for valid reasons, the court may restore this period and consider the service dispute on the merits.

The courts consider official disputes based on written applications of a civil servant or a citizen entering the civil service or previously in the civil service, a representative of the employer or a representative of an elected trade union body of this state body, if at least one of them does not agree with the decision of the commission on official disputes or if a civil servant or a representative of the employer goes to court without applying to the commission on service disputes, as well as at the request of the prosecutor, if the decision of the commission on service disputes does not comply with federal laws or other regulatory legal acts of the Russian Federation. Official disputes are considered directly in the courts on written applications:

a civil servant or a citizen who was previously in the civil service - on the reinstatement in a previously substituted civil service position, regardless of the grounds for termination or termination of the service contract, release from a substituted civil service position, dismissal from the civil service, on changing the date of release from a substituted civil service position and the wording of the reason for the said release, on transfer to another position of the civil service without the consent of the civil servant, on payment for the time of forced absenteeism or on payment of the difference in monetary allowance for the time of performance of official duties in a lower-paid civil service position;

representative of the employer - on compensation to civil servants for harm caused to a state body, unless otherwise provided by federal laws.

Official disputes are also considered directly in the courts: on the unlawful refusal to enter the civil service; on written statements from civil servants who believe they have been discriminated against.

During the passage of the civil service, conflicts may arise. Among them, the most significant is the conflict of interest.

Conflicts between the parties to official legal relations, which are the representative of the employer and the civil servant, can arise on a variety of occasions, grounds and at any stage of the existence of a public-service legal relationship. At the same time, "conflict" cannot always be considered a synonym for the legal term "service dispute". A conflict of interest, while not in itself a service dispute, may give rise to a service dispute of a claim nature. In this case, an office dispute will be a kind of stage in resolving a conflict of interest. As for directly office disputes, they, by analogy with labor disputes, can be divided into two groups: individual and collective office disputes.

The concept of "conflict of interest" is a component of corporate governance. Many organizations, including Russian ones, while fixing the model of internal corporate behavior, include a description of possible conflicts of interest and ways to prevent them. Most often, when familiarizing employees of organizations with the norms of corporate behavior, potential conflicts of interest are indicated: disclosure of confidential information to interested organizations; using the opportunities provided by the organization to the detriment of the organization itself in order to realize its own interests; acceptance of gifts and loans from clients (citizens), which provokes certain obligations that are contrary to the interests of the state organization; communication with organizations to obtain direct or indirect benefits for oneself or loved ones, etc.

The concept of a conflict of interest in the public civil service has a slightly different meaning (See: Figure 4.4.1). The law provides for a special procedure for resolving conflicts of interest in the public civil service (See: skh. 4.4.2.).

In order to comply with the requirements for official conduct of civil servants and to resolve conflicts of interest in a state body, a federal state body for the management of civil service and a state body of a constituent entity of the Russian Federation for the management of civil service, commissions are formed to comply with the requirements for official conduct of civil servants and the settlement of conflicts of interest. A City Commission has been established in Moscow to comply with the requirements for official conduct of state civil servants and the settlement of conflicts of interest. The procedure for the work of this commission was approved by Decree of the Government of Moscow dated August 28, 2007 No. 747-PP “On the establishment of the City Commission for Compliance with the Requirements for Official Conduct of State Civil Servants and Settlement of Conflicts of Interest”.

The composition of commissions for the settlement of conflicts of interest is formed in such a way as to exclude the possibility of a conflict of interest that could affect the decisions made by the commissions (See: skh. 4.4.3.).

The definition of an individual service dispute is given in Art. 69 of the Federal Law "On the State Civil Service of the Russian Federation" and, accordingly, in Article 58 of the Law of the City of Moscow No. 3 "On the State Civil Service of the City of Moscow". This definition, in its semantic content, almost completely coincides with the definition of an individual labor dispute given in Art. 381 of the Labor Code of the Russian Federation. The only difference is that the definitions given in Art. 69 of the Federal Law "On the State Civil Service of the Russian Federation" and Art. 58 of the Law of the City of Moscow No. 3 “On the State Civil Service of the City of Moscow”, do not contain an indication that individual service disputes may arise regarding the establishment or change of individual working conditions, which indicates the intention to exclude the effect of this rule in relation to civil servants. Thus, individual service disputes can only be of an action character, i.e. arise only in connection with the working conditions established by laws and other regulatory legal acts and individual contracts.

Individual service disputes include unresolved independent disagreements, which were reported to the body for consideration of individual service disputes. Thus, a legally individual service dispute arises only from the moment the interested person applies to the appropriate body. According to Art. 59 of the Law of the City of Moscow dated January 26, 2005 No. 3 “On the State Civil Service of the City of Moscow”, individual service disputes are considered by the commission of the state body on service disputes, and the court (See: skh. 4.4.4).

The parties to an individual service dispute, as a rule, are a representative of the employer and a civil servant, however, in some cases, a service dispute may arise for persons with whom service relations have not yet arisen or have already ceased. In particular, a dispute on denial of admission to the state civil service is considered official. The law establishes the right of a person who is denied admission to participate in the competition for filling a vacant position in the civil service to appeal against this decision. In addition, an applicant for a civil service position has the right to appeal against the decision of the competition commission. At the same time, in accordance with the Law, disputes on dismissal from the civil service are classified as official disputes.

Unlike individual service disputes, the legislation on the civil service does not regulate the resolution of collective service disputes. Thus, when resolving collective labor disputes that have arisen in the civil service, it is necessary to be guided by the norms of the Labor Code of the Russian Federation insofar as they do not contradict special norms on civil service. At the same time, it should be remembered that all civil servants are prohibited from striking as a way to resolve a collective labor dispute.

As a general rule, a person who believes that his rights have been violated may apply to the service dispute committee or to the court. At the same time, the Labor Code of the Russian Federation and the Federal Law "On the State Civil Service of the Russian Federation" dated July 27, 2004 establish a number of exceptions to this rule.

The commission on official disputes in a state organization is formed by the decision of the representative of the employer on an equal footing from an equal number of representatives of the trade union organization of this state institution and representatives of the employer.

The courts consider official disputes based on written applications of a civil servant or a citizen entering the civil service or previously in the civil service, a representative of the employer or a representative of the elected trade union body of this state body, if at least one of them does not agree with the decision of the commission on official disputes, or if a civil servant or a representative of the employer goes to court without applying to the service dispute commission, as well as at the request of the prosecutor, if the decision of the service dispute commission does not comply with federal laws or other regulatory legal acts of the Russian Federation. In addition, the law establishes a list of service disputes that can only be considered by the court (See: skh.4.4.5).

In cases of dismissal from a civil service position to be substituted and dismissal from the civil service on grounds not provided for by law, or in violation of the established procedure for dismissal from the civil service, or in the event of an illegal transfer to another position, the court has the right, upon a written application of a civil servant, to make a decision on compensation in monetary value of the moral damage caused to him. The procedure for considering cases on official disputes in courts is determined by civil procedural legislation.

4.4.1. Conflict of interest and self-interest

4.4.2. The procedure for preventing and resolving conflicts of interest in the state and municipal service

4.4.3. The composition of the commission of the state body for the settlement of conflicts of interest

4.4.4. Bodies for the consideration of individual service disputes

4.4.5. List of individual service disputes considered by the court

In the process of working in any organization, any disagreements may arise between its employee and the employer. If the parties failed to reach a mutual agreement, for example, the organization infringes on the rights of a citizen working for it, the latter has the opportunity to open individual labor or service dispute.

What it is, what legislative acts regulate it, and how the dispute resolution procedure is carried out, we will consider below.

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Basic concepts

An individual labor dispute is a conflict between an employee and his employer.

To resolve it, the disagreement is transferred to bodies specializing in the settlement of labor disputes. As reflected in Article 381 of the Labor Code, the subject of the latter may be the use of legislative acts that determine:

• labor law;
• labor agreements;
• collective agreements;

Plus, attention is drawn to personal working conditions, their establishment and adjustment.

In the mentioned article of the Labor Code it is noted that an individual labor dispute may arise at the initiative of the employee who was previously employed by an employer. Or if the employee wants to draw up an employment contract, but the employer refuses to do so.

The procedure for an individual labor dispute, the permissible period for resolving the conflict, the bodies called upon to deal with the issue, and other nuances are determined by Chapter 60 of the Labor Code of the Russian Federation, which includes articles 381-397.

Examples individual labor dispute:

1. not paid on time;
2. the employer refuses to provide the employee with a legal one;
3. the employee was not given vacation pay, etc.;
4. the employee was subjected to disciplinary sanctions that raise questions in him.

Disciplinary action - what kind of punishment is, read in our article.

Jurisdiction and cognizance of disputes

With the help of jurisdiction, competence is determined in the settlement of labor conflicts between those organizations that are called upon to resolve the relevant disagreements and consider relevant complaints.

By article 391 of the Labor Code of the Russian Federation alternative jurisdiction is acceptable. The trade union defending the interests of the employee, or he himself can apply to the commission on labor disputes. If the decision of the commission does not suit the applicant, a lawsuit should be drawn up in court. Or draw up an appropriate application, bypassing the commission.

Separately, it is worth mentioning the list of cases with which you will need to immediately visit courts. They are defined by Article 391 of the Labor Code of the Russian Federation:

• Reinstatement at the workplace, adjustment of the causes and time of the break in labor relations, transfer to another workplace, payment of compensation in salary for the forced period of being in a less paid position.

  As well as payments for forced missed schedules, or illegal actions of the organization's management in relation to the employee's personal data.

• Compensation of the company for harm resulting from the actions of the employee.
• If a citizen refused to be employed in their company.
• If an employee believes they have been discriminated against.
• When it is required to consider the case of a citizen who has signed an employment contract with another individual who is not registered as an individual entrepreneur. Plus when receiving applications from employees of religious organizations.

O jurisdiction labor disputes should say the following:

• Justices of the peace can only hear a certain category of enforcement disputes unless there is a conflict of rights. An example would be a situation where an employee was paid a salary, but was not produced.
• Nearly all types of labor dispute cases are dealt with by district courts.
• Only 2 categories of conflicts can be applied to the court of a constituent entity of the Russian Federation - if it is required to recognize the strike as illegal, and if there has been a disclosure of state secrets.

The general rule of the Code of Civil Procedure of the Russian Federation reads as follows:

• Usually, the court conducts the process of hearing the case at the location of the defendant.
• Alternative jurisdiction takes place if the plaintiff has received an industrial injury, and he requires compensation for harm, plus in a situation of violation of his labor rights. The plaintiff chooses jurisdiction, whether the case will be decided at the location of the applicant or the defendant.

Resolution order

The procedure for considering an individual dispute is determined in accordance with which body has jurisdiction over a particular case.

Therefore, it is worth considering separately the process of resolving the issue in commissions on labor disputes and court.

Commission on labor disputes

The vast majority of labor conflicts are resolved by the Labor Dispute Commission (CTC). It is formed at the request of an employee or entrepreneur, or their representatives. Moreover, in the commission, the persons representing the parties must be in equal amount.

After the employee or his authorized person and the employer or the person nominated by him receive a proposal to form a CCC, they are obliged to provide their representatives to the commission no later than ten days. This body can be formed not only at the level of the entire company, but also in the divisions of the company.

KTS is the primary body dealing with the settlement of labor disputes, which has its own seal and management staff.

Only an employee has the right to apply to the KTS, unlike the employer. Before referring the issue to the commission, the first one should try to resolve the issue directly with the leadership of the organization.

If no positive results can be obtained, you can refer the issue to the commission for consideration. Last issued 10 days to make your decision.

The dispute is considered by the commission in the presence of the employee or his authorized representative. If these persons do not appear once, the meeting is adjourned. After the second time, the procedure is terminated.

But within the limitation period, the employee has the right to reapply.

Members of the commission may invite specialists and witnesses, as well as require a certain package of official papers from the employee. During the meeting, you must protocol sealed by KTS. The decision of the commission is also entered there.

If part of the requirements is not satisfied, the commission needs to clearly identify the grounds that led to this.

After a positive or negative decision is made, copies of it, sealed and signed by the chairman of the commission, are issued to the employee and the entrepreneur within 3 days.

The verdict of the CCC is final and executed within 3 days, as well as 10 days for appeal. If the employee needs to be reinstated in his previous position after illegal transfer to another job, the decision is executed immediately.

Court

The court, in turn, may consider 2 types of labor conflicts:

• Past pre-trial settlement. Or immediately sent to workers in the courts for any reason. An example is the absence of a CCC at the place of work.
• Those types of disagreements that are immediately resolved in court, bypassing the commission.

When an individual labor dispute is accepted for consideration in court, the servant of Themis needs to correctly determine jurisdiction.

If the court satisfies the plaintiff's claims, the employee is not required to pay expenses related to litigation, and fees. The decision taken by the judge is not associated with the verdict of the CCC.

Limitation period

As such, the Labor Code does not include the term of the limitation period. However, article 392 of the same act determines the time period for filing an application with the court to resolve a conflict in an individual labor dispute.

The employee has the opportunity to apply for judicial protection of his interests in the following terms:

• Within 3 months from the date of the possible or actual discovery of a violation of his rights.
• Within 1 month, if the question concerns the termination of the employment contract. In this situation, the period begins from the day of receipt of a copy of the order to terminate the relevant relationship and receipt in hand.
• The employee also has the opportunity to first contact the state labor protection inspectorate.

The complaint is considered by the employees of the organization no more than in 10 days. Otherwise, a citizen can apply to the court to consider his case. Appeal to the judge is also permissible when the decision made by the inspectorate after considering the complaint did not suit the applicant.

He has the right to challenge this decision through the court within 10 days after its adoption.

What are the deadlines for employers? Suppose you need to understand a situation where an employee needs to be required to compensate for the damage caused to the company. An entrepreneur can file a lawsuit within 1 year from the moment the violation was discovered or could be discovered.

This inequality of conditions is determined by the difficulty of collecting the evidence base. For workers, the process is expected to be quicker and easier than for the company.

Individual service dispute in the civil service

During the civil service, conflicts can also arise, which are resolved through an individual service dispute. Here the dispute is resolved by:

1. commission of the state body on official disputes;

The procedure for considering the issue practically does not differ from the situation with an individual labor dispute. The employee's first step is to try resolve conflict with employer. Next comes the appeal to the commission, then to the judiciary. You can immediately draw up a lawsuit if the subject of the dispute requires it.

The court accepts applications from both employees and employers if the employee caused damage to the state body.

The following cases are subject to trial:

1. If a citizen has received an unlawful refusal to enter the civil service.
2. If a civil servant believes they have been discriminated against.

Find out the prerequisites for the emergence of labor disputes from the video:

Linetsky, Stanislav Vladimirovich

Academic degree:

PhD in Law

Place of defense of the dissertation:

VAK specialty code:

Speciality:

Administrative law, financial law, information law

Number of pages:

Chapter 1. The legal nature of service disputes.

§ 1. The essence of the service relationship.

§2. The concept of a business dispute.

§3. Types of service disputes.

§ 1. Subjects of an official dispute.

§2. The subject of a business dispute.

§ 3. Grounds for an office dispute.

Chapter III. Procedures for resolving official disputes.

§2. Pre-trial procedure for resolving service disputes.

§3 Judicial procedure for resolving service disputes.

Introduction to the thesis (part of the abstract) On the topic "Service dispute and the procedure for its resolution"

Relevance of the research topic. The main goal of the ongoing in the country administrative reform is the creation of an effective mechanism of public administration, without which it is impossible to ensure the dynamic development of Russian society. The performance of both a separate state body and the state apparatus as a whole is largely determined by the effectiveness of the professional performance of civil servants, because it is they who, by virtue of the powers granted to them, carry out the practical implementation of state policy in almost all spheres of public life. This is the reason for the enduring importance of the civil service as a key element of public administration. Overcoming the consequences of the global financial crisis, innovative and infrastructural modernization of the economy, the fight against corruption - all these new challenges further increase the importance of the civil service and dictate the need to bring this institution into line with the requirements of modern society as soon as possible.

The effectiveness of the activities of civil servants in the implementation of the functions of the state directly depends on the regulation of their legal status adequate to modern realities. Building an optimal system of this public law regulation involves embedding a well-functioning legal mechanism for protecting the rights and legitimate interests of civil servants. One of the civilized ways of such protection, contributing to the removal of internal conflicts in the activities of the state apparatus and ensuring its normal operation, is an office dispute.

The concept of "service dispute" is new to Russian legislation. For the first time in domestic law, its legal definition was given by the Federal Law of July 27, 2004 No. 79-FZ “ On the State Civil Service of the Russian Federation»1 (hereinafter Law No. 79-FZ).

Prior to the entry into force of the said Law, the consideration of disputes arising in the civil service was regulated by labor legislation. The separation of civil service legislation from labor law norms should be recognized as an important step towards establishing an adequate legal regulation of the civil service, however, an analysis of the Law shows that many of its provisions repeat the relevant provisions of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). Nor are the rules governing the procedure for handling service disputes an exception.

In particular, the definition of a service dispute given in Law No. 79-FZ almost verbatim reproduces the definition of an individual labor dispute contained in the Labor Code of the Russian Federation. In addition, there are practically no rules in this law regulating the procedure for considering service disputes, as well as the procedure for making a decision by the bodies for reviewing service disputes and its execution. As a result, the norms of the Labor Code are subsidiarily applied to the relevant relations, and service disputes are considered in courts by analogy with labor disputes.

Meanwhile, the specifics of the civil service (strict subordination, public character, the performance of power functions by the subjects of service relations) predetermines the special legal status of civil servants in comparison with citizens engaged in professional labor activities for hire: the presence of certain prohibitions and restrictions, state guarantees, a special procedure for admission to the service and its passage, etc. In this regard, the situation in which service disputes are considered in accordance with the norms of the Labor Code cannot be called optimal, since the proper level of

1 SZ RF. 02.08.2004. No. 31. Art. 3215 protection of the rights of employees, which is detrimental to both the interests of employees and the interests of the state.

It is also important to note that the European Court of Human Rights has repeatedly pointed out that disputes involving civil servants on issues of official position are not subject to Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by virtue of the functional criterion for determining the rights of these persons: civil servants take part in the exercise of state power and powers aimed at protecting public interests. Consequently, the relations in which these persons participate in connection with their professional activities are purely public. In this sense, the decision in the Pellegrin case is precedent, in which this court stated: “From the scope of paragraph 1 of Art. 6 of the Convention, only disputes involving civil servants are excluded, whose service is characterized by the specificity of the activities of the state apparatus to the extent that the latter, as the holder of public power, is obliged to protect the general interests of the state or other state entities endowed with legal personality(PeTuetm, §66 and §67).

In this context, the improvement of legislative regulation of the procedure for resolving service disputes. However, the normal provision of the legislator's activities in this direction is hindered by the rather weak scientific development of the conceptual problems of conflicts arising from service relations, and therefore the study of the theoretical aspects of a service dispute is a very urgent task.

The degree of scientific development of the problem. At the monographic level, special comprehensive studies of the problems of a service dispute have not been conducted. Certain aspects, mainly related to the issues of resolving service disputes, were touched upon in the works of V.A.

Vasilyeva, Yu.N. Poletaeva, M.V. Presnyakova, S.E. Channova, L.A. Chikanova. 5

P.A. Lobanov considers an office dispute as part of a general study of conflicts in the state civil service and the management system for such conflicts. However, there is every reason to believe that the problem has not yet received the necessary conceptual understanding in the available studies. There is no detailed doctrinal definition of an office dispute, many debatable issues related to its legal nature have not been resolved, a legal structure has not been developed that allows building an adequate theoretical model of this phenomenon, and the system of its functions has not been disclosed. Thus, in legal science, the theory of a service dispute is at the stage of initial formation.

The object of the dissertation research is public relations that develop when disagreements arise in the civil service between civil servants, citizens entering the civil service or previously in the civil service, on the one hand, and officials and government bodies, on the other hand, about various understood service rights and obligations, as well as about the legality of regulatory legal acts on the civil service.

The subject of the research is the theoretical foundations of an official dispute as a public law phenomenon, as well as the legislation governing the procedure for resolving service disputes.

Purpose and objectives of the study. The aim of the work is a comprehensive study of an office dispute as a public law phenomenon, the development of conceptual provisions for building its holistic theory, as well as the search for constructive solutions aimed at improving the legislation governing the procedure for considering service disputes.

2 See: Lobanov P.A. Conflict management in the state civil service of the Russian Federation: Abstract of the thesis. dis. cand. jurid. Nauk M., 2009. S. 11.

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

Identification of the legal nature of service regulatory legal relations that arise in the process of implementing the state civil service and are a source of service disputes;

Definition of the concept and features of an official dispute as a type of administrative and legal dispute arising from official regulatory legal relations;

Development of classification criteria and identification of types of service disputes;

Building a legal structure of a service dispute - an ideal legal model that describes it as a special protective legal relationship, isolating and studying its main elements;

Definition of " dispute resolution procedure»;

Analysis of existing legal procedures for resolving service disputes; development of theoretically substantiated proposals for reforming the legislation governing the procedure for considering service disputes.

Theoretical and regulatory framework. The theoretical basis of the dissertation was the scientific works of specialists in the field of theory of law, science administrative, labor, civil and other branches of law.

Monographic and other sources on the theory of law were used: N. G. Aleksandrova, S.S. Alekseeva, B.C. Belykh, A.B. Vasilyeva, V.V. Lazareva, M.N. Marchenko, A.S. Pigolkina, O.N. Sadikova and others.

The main base of the dissertation research was the works of representatives of the science of administrative law: S.G. Atamanchuk, D.N.

Bahraha, A.A. Grishkovets, A.A. Demina, A.B. Demina, A.B. Zelentsova, V.G.

Ignatova, N.M. Kazantsev, A.P. Koreneva, B.M. Lazareva, V.M. Manohina, 7

A.F. Nozdracheva, A.B. Obolonsky, D.M. Ovsyanko, M.V. Presnyakova, Yu.N. Starilova, M.S. Studenikina, S.E. Channova and others.

Important sources for writing the dissertation were the works of scientists in the field of labor law: I.K. Dmitrieva, A.M. Kurennogo, D.B. Minnigulova, R.Z. Livshits, TA. Nesterova, A.F. Nurtdinova, V.N. Pasherstnik, V.N. Skobelkina, O.V. Smirnova, I.O. Snigireva, JT.A. Syrovatskaya, V.N. Tolkunova, L.A. Chikanova, V.Sh. Shaikhatdinova, V.E. Kholodova, E.B. Khokhlova, etc.

The normative base of the dissertation research was: the Constitution of the Russian Federation, federal laws and other regulatory legal acts regulating official relations in the public service, the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts containing labor law norms.

The empirical base of the study was the rulings of the Constitutional Court of the Russian Federation and the Plenum of the Supreme Court of the Russian Federation, Russian judicial practice, as well as legislative acts on the civil service of foreign states (Albania, Great Britain, Venezuela, Vietnam, Germany, China, Costa Rica, Norway, Peru, Poland, United States, France, Japan).

The methodological basis of the dissertation is a set of scientific techniques and methods for studying phenomena and processes. Such methods of scientific knowledge as: dialectical, systemic, concrete-historical, formal-logical, structural-functional, method of comparative studies and legal modeling are used.

The scientific novelty of the work lies in the fact that it is the first comprehensive monographic study of a service dispute in domestic legal science. Based on the analysis of the essence and content of civil service relations and the specifics of the professional performance of civil servants, as well as the study of 8 service dispute as a protective legal relationship, a fundamentally new approach to the phenomenon under consideration has been formed from the standpoint of developing the theoretical foundations of a service dispute and specific proposals have been formulated to improve the legislation governing the procedure resolving business disputes.

Defense provisions. The study made it possible to formulate and substantiate the following theoretical and practical provisions submitted for defense:

1. The orientation of the professional activity of a civil servant to ensure the functioning of state bodies and the exercise of power expresses its qualitative functional difference from the labor activity of an employee and predetermines their public law status. The relations of the public service have a pronounced public character and have rights and obligations as their content, which by their nature are public law. Consequently, an official dispute arising from public-law relations of the public service should be considered as a kind of public-law (administrative), and not a labor dispute.

2. An official dispute is a disagreement between the subjects of official legal relations regarding differently understood rights and obligations, the implementation of service contracts, the application and adoption of regulatory legal acts on the public service, resolved in accordance with a certain legal procedure.

This definition reveals all the essential features of an office dispute as a type of administrative and legal dispute and is more accurate than the one used in Law No. 79-FZ. It does not refer to the service dispute as "individual". In labor law, an indication of the individual nature of the dispute is essential, because it emphasizes its difference from collective labor disputes. In the 9 civil service, collective disputes do not arise due to the lack of collective contractual regulation of service relations. From a logical point of view, the definition of an office dispute in Law No. 79-FZ through the concept of " unsettled disagreements”, since there can be no unresolved disagreements: if they exist, then they have not yet been resolved.

3. The content of a service dispute is wider than an individual labor dispute, which can only arise over established working conditions. The party of service relations is not only the representative of the employer, but also the employer himself, i.e. the state as such. In this regard, a service dispute may arise from both " intraorganizational» service relations, the subject of which is the application of a service contract and regulations on civil service, and from public service relations, the subject of which is the legality of regulations on public service.

4. Depending on the subject of the dispute, there are two main types of service disputes: 1) disputes about the rights, obligations and legitimate interests of the parties that have arisen in connection with the application of a service contract, laws and other regulations on the civil service, as well as local regulations of the representative of the employer (disputes about subjective service law); 2) disputes about the legality of normative acts on the civil service affecting the service rights and obligations of the parties (disputes about objective service law).

In addition, it is important to characterize service disputes that they are divided into disputes: a) about a subjective service right or official duty, and b) about a legitimate service interest. In turn, within the framework of official disputes about subjective rights and obligations, one should single out such types of them as disputes about state guarantees, disputes about disciplinary liability, disputes about discrimination in the service, etc.

5. A legal structure of a service dispute has been developed, which includes three key elements: parties (subjects), subject and grounds. The selection of these elements is justified by practical purposes: the elements of an office dispute should include such parts that would make it possible to settle or resolve it. Consequently, the elements of the dispute should be similar to the elements of the claim, since it is the content of the dispute that objectively determines and largely determines the elemental composition of the claim, through which the dispute is transferred for consideration jurisdictional organ.

6. The subjects of an official dispute, in accordance with the current legislation, are, on the one hand, the representative of the employer, as well as other officials and state bodies, and, on the other hand, civil servants, citizens entering the civil service or persons who previously in the public service. The authoritative subject in disputes about subjective service rights and obligations is the representative of the employer, and in disputes about the legality of a normative act on public service - the state body or official that issued the relevant act.

7. The need to amend the legislation is substantiated, according to which the state body, and not the official who signed the service contract (representative of the employer), should be recognized as a party to a service dispute about subjective rights and obligations (as well as a party to a service contract). The designation of the representative of the employer as a party to the service contract leads to a situation in which the civil servant serves not the state and not the state body in which he actually carries out professional service activities, but a specific official, because in accordance with the contract the civil servant has obligations to him, as a party to the contract.

Disputes arising from civil service relations may go beyond the competence of the representative of the employer (in cases where he is not the head of the state body, within which the dispute arose), and therefore, in fact, he cannot act as a defendant in such cases, although according to they are required by law.

8. Grounds for an official dispute - a legal fact that is the immediate cause of the dispute and in the overwhelming majority of cases is an action or decision of an authoritative subject of official relations, formalized in the form of an individual or normative official legal act. In the system of grounds for a service dispute, three main groups of legal facts can be distinguished, which are direct causes for a dispute: 1) the alleged fact of violation of the rights of an employee by actions (inaction) and decisions of an imperious subject of service relations, expressed in the infringement of the rights of an employee, illegally imposing on him any duty or unlawful disciplinary action; 2) the alleged fact of the illegality of decisions and actions (inaction) of a powerful subject affecting the rights and obligations of an employee; 3) the alleged fact of non-fulfillment of duties by a civil servant, which entailed the infliction of property damage to a state body.

9. Taking into account the foreign experience of legal regulation of the resolution of service disputes within the framework of the executive branch, it is advisable to create a centralized quasi-judicial body - the Appeal Commission for Civil Service Issues, which is not related to any particular department (the second instance in relation to the Commission for Service Disputes). This will eliminate many of the problems that inevitably arise when considering service disputes in the same body in which they arise. The creation of such a body, whose members are not subordinate to one of the parties to the dispute, will contribute to objectivity and professionalism in resolving service conflicts.

Theoretical and practical significance of the research. The foundations of the theory of service dispute are developed, its main concepts are formulated. Gaps, contradictions and vague provisions of the legislation are identified that make it difficult to effectively resolve service disputes. Recommendations are given for improving the legislation on the civil service, which can be taken into account in the process of reforming the legal regulation of service relations. The dissertation materials can be used in lecturing at the course of administrative, municipal and service law.

Approbation of the research results. The dissertation was prepared at the Department of Administrative and Financial Law of the Peoples' Friendship University of Russia. The main results of the study are published in five scientific articles. The dissertation was discussed and approved at a meeting of the Department of Administrative and Financial Law of the State Educational Institution of Higher Professional Education “ Peoples' Friendship University of Russia».

The structure of the work is determined by the goals and objectives of the dissertation research. It consists of an introduction, three chapters divided into 9 paragraphs, a conclusion and a bibliography.

Dissertation conclusion on the topic "Administrative law, financial law, information law", Linetsky, Stanislav Vladimirovich

Conclusion

The study made it possible to determine the main contours of the modern theory of a service dispute and to identify the specifics and prospects for the development of legislation governing the procedure for resolving disputes in the public service. The theory of service dispute should be based on the following fundamental ideas:

1. An office dispute is a type of administrative-legal, and not a labor dispute. The relations of the public service have a pronounced public character and determine the rights and obligations, which by their nature are public law, therefore, an official dispute arising from the public law relations of the public service should be considered as a kind of public law ( administrative) dispute.

2. An official dispute should be understood as disagreements between the subjects of official legal relations regarding differently understood rights and obligations and / or about the legality of legal acts on public service, resolved in accordance with a certain legal procedure.

This definition covers all the distinguishing features of an office dispute as a type of legal dispute and is more accurate than the one used in Law No. 79-FZ. There is no need to call a service dispute "individual". In labor law, an indication of the individual nature of the dispute is essential - it emphasizes its difference from collective labor disputes. In the civil service, collective disputes do not arise due to the lack of collective contractual regulation of service relations. The definition of a service dispute through the concept of " unsettled disagreements”, since there can be no unresolved disagreements: if they exist, then they have not yet been resolved.

3. Depending on the subject of the dispute, two main types of service disputes should be distinguished: 1) disputes about the service rights, duties and legitimate interests of the parties that arose in connection with the application of a service contract, laws and other regulations on the civil service, as well as local regulations representative of the employer (disputes about subjective service law); 2) disputes about the legality of normative acts on the civil service affecting the service rights and obligations of the parties (disputes about objective service law).

The subject of the legality dispute is exclusively a question of an objective legal nature - the conformity or non-compliance of the challenged act with a law or a normative act of greater legal force. The subject of another type of official disputes includes both the legality of a legal act (action, decision) of an authoritative body or official, and the subjective rights and obligations of the parties. Accordingly, the subject of such a dispute acquires a “dual” character: the court must not only decide on the legality of an act or action (inaction), but also resolve disagreements about subjective law.

The dispute about the legality of normative acts on public service is a dispute: 1) between the subjects of service relations; 2) arising in connection with the alleged violation by one of the parties of the service rights of the other party. 3) the basis of which this dispute in the vast majority of cases is the unilateral will of the powerful subject of service relations, which allegedly violates the rights and / or legitimate interests of the subordinate subject and is expressed in the issuance of a regulatory act on public service issues. Thus, this dispute on subjects, subject and grounds is an office dispute.

4. The legal structure of an office dispute reveals its content and includes three key elements: parties (subjects), subject and grounds.

This legal structure, as an ideal model of the relations under consideration, can serve as a foundation not only for further conceptual study of the service dispute as a legal phenomenon, but also for improving legislation in order to create a more advanced mechanism for resolving service disputes. The allocation of three elements (parties, subject, grounds) is justified by practical purposes: the elements of a service dispute should include such parts that would make it possible to settle or resolve it.

5. The parties to an employment dispute, in accordance with applicable law, are, on the one hand, state bodies and officials (including a representative of the employer) and, on the other hand, civil servants, citizens entering the civil service or persons who previously in the public service. The authoritative subject in disputes about the right is the representative of the employer, and in disputes about the legality of a normative act - the state body or official that issued the relevant act.

The need to amend the legislation has been established, according to which the state body, and not the official who signed the service contract (representative of the employer), should be recognized as a party to a service dispute about the right (as well as a party to a service contract). The designation of the representative of the employer as a party to the service contract leads to a situation in which the civil servant serves not the state and not the state body in which he actually carries out professional service activities, but a specific official, because in accordance with the contract the civil servant has obligations to him, as a party to the contract.

The representative of the employer is an official with a strictly defined terms of reference. Disputes arising from relationships

198 of the civil service may go beyond its competence (for example, in cases where the representative of the employer is not the head of the state body within which the dispute arose), and therefore, legally and in fact, he cannot act as a defendant in such cases, although by law they owe it to be. In addition, the designation of the representative of the employer as a party to the contract contradicts the very idea of ​​public service, since it turns out that the employee does not serve the state, but a specific official.

When making changes to the legislation, in our opinion, there is no need to abandon the concept of " employer's representative". This concept can be saved by changing its content, i.e. instead of an official signing a service contract, understand the representative of the employer as a state body.

6. The subject of an official dispute is the rights, obligations and legitimate interests of the parties to the service relationship and / or questions of the legality of official legal acts. A service-legal act is understood as a unilateral by-law expression of the will of a state body or official (in particular, a representative of the employer), expressed in a documented decision or other legally significant form and aimed at establishing, changing, abolishing legal norms or the rights and obligations of civil servants.

The subject of an official dispute is different in disputes about subjective rights and obligations, and disputes about objective law (disputes about the legality of normative acts). In disputes about rights, the subject is precisely the rights and obligations, and the legality of the legal act of management acts as the subject of judicial verification (control) and a way to resolve disagreements. In disputes about the legality of normative legal acts, the subject of the dispute and the subject of judicial review (control) coincide. In these disputes, only questions are resolved abstract law”, i.e. issues of compliance of the contested normative legal act with a normative act of higher legal force.

7. Grounds for an official dispute - a legal fact that is the immediate cause of the dispute and in the overwhelming majority of cases is an action or decision of a public subject of official relations, formalized in the form of a normative or individual official legal act. In the system of grounds for a service dispute, two main groups of facts can be distinguished that are direct causes for a dispute: 1) violation of the rights of an employee by actions (inaction) and decisions of a public subject of service relations, expressed in failure to fulfill the obligation to respect the rights of an employee; 2) illegality of decisions and actions (inaction) of a public entity affecting the rights and obligations of an employee.

The violations that are the cause of the dispute are divided into two groups: 1) violations committed by powerful subjects of service relations and 2) violations committed by employees. At the same time, the proportion of disputes based on violations committed by employees in the total array of official disputes is extremely small. This is due to the fact that almost always the powerful subject of service relations can restore the right violated by the employee and / or involve him in the performance of any duty by applying measures of authoritative coercion (for example, by bringing to disciplinary responsibility). The exception is cases when the law establishes the possibility of applying measures of responsibility against an employee only through a court.

8. An office dispute is a protective legal relationship derived from a disputed regulatory legal relationship. The way of expressing and manifesting the content of a service dispute as a protective legal relationship, the way by which this legal relationship is perceived as really existing, is its external form.

This should be recognized as a certain legal procedure for its

200 permissions - a set of legally significant actions that must be performed in order for the disputed regulatory legal relationship to take shape as a protective legal relationship.

An official dispute as a protective legal relationship in terms of form can be implemented in three main procedures. Firstly, this is a material procedure involving the direct appeal of an employee whose rights are allegedly violated by an individual service legal act of the representative of the employer, to the representative of the employer with a complaint (statement of objection), and the resolution of the dispute by the parties themselves. There is no such procedure in the current Russian legislation. Secondly, it is a pre-trial procedural procedure for the implementation and resolution of an official dispute in commissions on official disputes. Thirdly, the procedural procedure for the implementation and resolution of a service dispute in court.

9. An office dispute is characterized by a certain dynamics of development, including several stages. As criteria for distinguishing at the stage, legal facts should be considered that play the role of "nodal points" in the dynamics of this dispute as a protective legal relationship (the fact of an offense, the fact of a statement of disagreement, the fact of a decision on the dispute, the fact that this decision has entered into legal force, etc.) .

These criteria make it possible to single out three main stages in the development of a service dispute: 1) the stage of occurrence; 2) the stage of legal registration of disagreements and their consideration; 3) stage of dispute resolution.

10. An analysis of the existing procedural procedures for resolving service disputes was carried out, on the basis of which the following conclusions were drawn:

The pre-trial procedure for resolving service disputes is optional to a certain extent. Any of the parties to the dispute may

201 ignore and seek protection of the violated right directly to the court or disagree with the decision made by the commission on official disputes and, again, go to court. At the same time, the court considering an official dispute, on which a decision has already been made by the commission on official disputes, is in no way bound by this decision. All this, however, does not detract from the importance of the pre-trial procedure for resolving service disputes. In particular, its presence makes it possible to resolve a large array of service disputes without bringing them to court, which allows the parties to these disputes to avoid unnecessary costs and time;

Consideration of an official dispute in a commission created in the same body within which this dispute arose is not the best option. A body consisting entirely of persons subordinate to the representative of the employer is not always able to provide an independent and impartial consideration of the dispute between the employee and the representative of the employer. As a circumstance that reduces the effectiveness of the pre-trial procedure for resolving official disputes, one cannot fail to name the low level of legal training of members of commissions on official disputes, which is often an obstacle to an objective assessment of the circumstances of a case and establishing the truth in a dispute;

It is necessary to introduce amendments to the legislation, in accordance with which a centralized quasi-judicial body will be created in the system of executive power to resolve service disputes. The presence of such a body, not tied to a specific department, would solve the problems that inevitably arise when considering cases in the same body in which the dispute arose. Such a centralized body would have independence in decision-making, its members, not being subordinate to one of the parties to the dispute, would be spared from pressure "from above". The UN would deal exclusively with official disputes, moreover, on a professional basis, which would make it possible to avoid the presence of

202 persons with insufficient knowledge of the law and significantly improve the efficiency of dispute resolution;

In view of the presence of a large number of gaps in the legal regulation of the procedure for resolving service disputes in service dispute commissions, it is proposed to extend the norms of the Code of Civil Procedure not only to the judicial, but also to the pre-trial procedure for resolving service disputes.

Article 70

1) commission of the state body on service disputes;

2. The procedure for considering service disputes in service dispute resolution bodies is governed by this Federal Law and other federal laws, and the procedure for considering cases on service disputes in courts is also determined by the civil procedural legislation of the Russian Federation.

3. The commission of the state body on official disputes (hereinafter referred to as the commission on official disputes) is formed by the decision of the representative of the employer from an equal number of representatives of the elected trade union body of this state body and the representative of the employer.

4. Representatives of the elected trade union body of this state body are elected to the commission on official disputes at the conference of civil servants of the state body. Representatives of the representative of the employer are appointed to the commission on service disputes by the representative of the employer.

5. The Commission on official disputes has its own seal. Organizational and technical support for the activities of the commission on official disputes is carried out by a state body.

6. The commission on official disputes elects the chairman and secretary of the commission from among its members.

7. An official dispute is considered by the commission on official disputes if the civil servant, on his own or with the participation of his representative, did not resolve the differences during direct negotiations with the representative of the employer.

1) about unlawful refusal to enter the civil service;

2) based on written statements of civil servants who believe that they have been discriminated against.

16. In cases of release from a substituted civil service position and dismissal from the civil service on grounds not provided for by this Federal Law, or in violation of the established procedure for exemption from a substituted civil service position and dismissal from the civil service, or in case of illegal transfer to another civil service position the court has the right, upon a written application of a civil servant, to make a decision on compensation in monetary terms for the moral damage caused to him. The amount of compensation is determined by the court.

17. Terms of applying to the court for consideration of a service dispute and the procedure for releasing civil servants from court costs, the procedure for making decisions on official disputes related to the release from a substituted civil service position and dismissal from the civil service, transfer to another civil service position without the consent of a civil servant , the procedure for satisfying the monetary claims of civil servants, the execution of decisions on the reinstatement in a previously occupied position of the civil service and the limitation of the reverse recovery of amounts paid by decision of the authorities for the consideration of service disputes, are established by federal law.