Registration of an employee under a civil contract

Types of GPA

If we analyze the current Civil Code of the Russian Federation, we can distinguish the following main types of GPD associated with the performance of work:

1. Contract agreement (Chapter 37) - involves the contractor performing certain work on the instructions of the customer, which the latter will have to accept and pay for.
2. Agreement for carrying out research and other types of work (Chapter 38) - within the framework of this document, the contractor undertakes to conduct specific research (according to the technical specifications) or develop a sample of a new product, and the customer - to accept and pay for the work.
3. Agreement for the provision of services on a reimbursable basis (Chapter 39) - under such an agreement, the contractor undertakes to provide the service in accordance with the assignment submitted by the customer, and the latter - to pay a fee for it.
4. Contract for the carriage of goods and people (Chapter 40) - within the framework of such a transaction, the carrier delivers goods and passengers to their destination, and the sender (passenger) pays for the delivery.
5. Other types of civil contracts.

Read about how a work contract differs from other types of agreements here.

Pros and cons of a civil law contract

For each of the parties, this type of relationship has its own advantages and disadvantages; let’s consider them in more detail.

For the customer

Pros:

• personnel records management is excluded;
• payment is made based on the results of work performed (services provided) in accordance with the GPC agreement;
• no need to equip a workplace;
• there is no concept of sick leave, vacation pay and other social guarantees in relation to the performer;
• the insurance premium for the Social Insurance Fund is not calculated, except in situations where this is stipulated by the contract.

Minuses:

• it is impossible to present requirements for qualifications and work experience to the contractor under a civil contract, in contrast to hiring an employee under an employment agreement;
• The customer does not have the right to control the process of performing work (rendering services) unless the possibility of intermediate acceptance has been established;
• the internal regulations of the organization do not apply to the performer;
• when concluding a GPC agreement with an individual, the customer is obliged to calculate and pay taxes and insurance payments on the income paid;
• there is a risk of reclassification of a civil law contract into an employment contract.

For the performer

Pros:

• Despite the simplicity of hiring, the time of performance of work (provision of services) under a civil process agreement is included in the insurance period, which allows the accumulation of pension coefficients through the payment of insurance contributions by the customer to the Pension Fund of the Russian Federation;
• the work of the contractor is not subject to the work schedule of the customer and is not controlled by him throughout the duration of the contract. The exception is the terms of the contract when intermediate results are accepted;
• if necessary, the contractor has the right to seek help from third parties.

Minuses:

• The contractor is not a full-time employee of the customer; his payment for his labor is established only under the GPC agreement and may be less than the minimum wage. If the work is carried out under an employment contract, wages cannot be lower than the minimum wage;
• you need to equip the workplace yourself;
• there is no concept of social guarantees;
• The period of work under a civil contract is not taken into account when calculating unemployment benefits.

Contents of a GPC contract with an individual: rules for drawing up

There is no single form for such a document. As a rule, it is drawn up in writing, taking into account the individual characteristics of a particular case.

If we talk about the GPA for the performance of work, then in this case, first of all, it means a contract agreement, within the framework of which the contractor, on behalf of the customer, undertakes to perform certain work.

In general, the content of the GPA includes the following standard points:

• subject of the agreement;
• information about the parties to the transaction;
• price of work;
• deadline;
• payment procedure;
• rights and obligations of the customer and contractor;
• delivery and acceptance of the finished order;
• liability of the parties;
• contract time;
• additional conditions.

We wrote about the essential terms of the contract in a separate article.

Subject of the transaction

In accordance with the provisions of Art. 703 of the Civil Code of the Russian Federation, when concluding a civil contract of this type, the subject of the agreement is certain work that must be performed by the contractor. Moreover, if we are talking about the manufacture of some thing, then after this process is completed, the right to the finished product is transferred to the person who ordered it.

The text of the GAP must describe the subject of the agreement.

In addition, in this section it is also necessary to indicate from whose materials the specific work will be performed. There are two possible options:

• The customer provides everything for the order.
• The contractor independently purchases the necessary materials. At the final settlement, all costs will be reimbursed.

Parties involved

When concluding a GPA for the execution of work, two parties take part:

1. The customer can be an ordinary citizen, an individual entrepreneur, or a legal entity (how to draw up a contract between legal entities?).
2. Performer (contractor) – if we are talking about performing one-time work, then it can be done by an individual. However, if certain orders are carried out on an ongoing basis to different customers, then the contractor is obliged to register as an individual entrepreneur.

In general, the text of the contract should reflect personal information about each party to the transaction. It could be:

• Name of the organization;
• Full name of the official representative, as well as the contractor himself;
• passport details;
• residential or location address.

Cost of services

The procedure for determining the cost of work performed is described in Art. 709 of the Civil Code of the Russian Federation. In accordance with paragraph 2, it consists of two elements:

• compensation for costs incurred by the contractor during the execution of the assigned task;
• remuneration for work.

At the request of the parties, the price of the work can be drawn up in the form of an estimate. The estimate drawn up by the contractor will become valid only after it is confirmed by the customer.

The price in the GPA for performing the work can be approximate or fixed. In the first case, further adjustment is allowed, in the second - not.

Deadlines

In accordance with paragraph 1 of Art. 708 of the Civil Code of the Russian Federation, this type of contract must indicate the following deadlines for completing the work:

1. Initial – the date when the contractor must begin executing the assigned order.
2. Final – the number by which the work must be completely completed.

In addition, the parties can also specify interim deadlines in the text of the GAP, that is, dates when individual stages of work must be completed.

Payment order

As you know, after completing an order, the other party to the transaction must pay for it in full. Moreover, the procedure for settlements with the contractor should also be included in the text of the GAP. The following options are possible here (Article 711 of the Civil Code of the Russian Federation):

1. Making an advance payment (advance payment) - in this case, the agreed amount (or part of it) is paid before the start of the order.
2. Payments for each completed stage - the customer transfers money for each completed type of work or individual stage.
3. Postpayment – ​​involves final payment after the entire order is completed.
4. Hourly calculation - in practice, this option can also be used. In this case, the customer pays for each hour of work.

Rights and obligations of the parties

When drawing up this section of the contract, the parties to the transaction must be guided by the provisions of civil law. Mainly we are talking about ch. 37 of the Civil Code of the Russian Federation, which describes the general provisions on contracts.

So, if we analyze this chapter, we can highlight the following basic rights and obligations of the performer:

• must complete the assigned order on time and efficiently;
• the material received from the customer must be used rationally and economically (but without compromising quality);
• based on the results of the work, a report is submitted on all materials expended;
• if the raw materials turned out to be of poor quality, the contractor must inform the customer of the work about this;
• has the right, at his own discretion, to choose the method of fulfilling the order;
• a third party, that is, a subcontractor, can be involved for assistance - with the consent of the second party (how to draw up a subcontract agreement?);
• has the right not to begin work or to suspend it if the customer violates his obligations;
• may unilaterally refuse the GPA (in cases provided for by law), etc.

In turn, certain rights and obligations also arise for the customer of the work. This includes the following:

• he must immediately accept quality work;
• is obliged to pay for the finished order exactly on time;
• must assist the contractor during the performance of the work;
• has the right to see how the process is progressing at any time;
• can refuse the GPA if he understands that the order is guaranteed not to be completed by the deadline specified in the contract (due to the fault of the contractor);
• has the right to put forward demands prescribed by law (price reduction, rework at the expense of the contractor, etc.) if he discovers deficiencies in the completed work, etc.

Order delivery and acceptance

After completing the order, before making payments to the contractor, the customer must accept the work.

In addition to the main parties to the transaction, their representatives, and in some cases even government bodies, can also take part in the acceptance of the final result.

The delivery and acceptance of work is formalized by a corresponding act, which must be signed by both parties at the end.

All the nuances associated with the acceptance of the finished result must be spelled out in the text of the GAP, including the names of the representatives who will participate in this process.

Responsibility of participants

In addition to the rights and obligations, when concluding a GPA for the performance of work, both parties to the transaction have a certain responsibility. Thus, the contractor is responsible for:

• the poor quality of the materials he used to complete the work;
• damage or destruction of the finished result that occurred before it was handed over to the customer;
• delay in delivery of work;
• poor quality of the finished product, etc.

The customer also bears certain types of responsibility. We are talking about the following risks:

• delay in settlements with the contractor who completed the assigned task efficiently;
• poor quality of materials that he provided to the contractor.

In case of violation of the terms of the contract by either party, certain sanctions may be applied to them.

If we are talking about a contractor, then he will be assigned a penalty (for poor quality or missing deadlines) and will be given a certain requirement (for example, to resolve the problem at his own expense). An unscrupulous customer will have to pay a fine or compensate losses to the other party (for example, for late payment or unjustified refusal to work).

Validity

Civil legislation does not specify deadlines for concluding a GPA for the performance of work. The parties to the transaction determine the validity period of the agreement independently. Moreover, it must be specified in the appropriate section of the agreement text.

Additional terms

In addition to the above, additional useful conditions may be included in the text of a civil law agreement. This may include the following:

• the customer’s attitude towards engaging subcontractors (he has the right to prohibit such an action);
• the procedure for making changes to the terms of the contract;
• distribution of responsibility between the parties to the transaction in case of force majeure situations, etc.

You can find out how to correctly draw up a contract with an individual here.

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

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How does a GPC agreement differ from a labor agreement?

Different principles of legal regulation apply to employment and civil law contracts. We present the differences in the form of a table.

In the GPC agreement, it is important to use language that will not allow it to be recognized as a labor contract. To do this, you should avoid the following points:

• indicate the job function. The subject of the GPC agreement is the result of performing specific work (rendering services);
• set the same monthly fee;
• organize the contractor’s workplace on the customer’s premises;
• obey internal labor regulations;
• lack of deadlines for completing work and delivering intermediate and final results;
• establish social guarantees (paid leave, sick leave, etc.);
• pay travel expenses.

If the GPC agreement is recognized as a labor agreement, the employer will be required to make additional contributions to the Social Insurance Fund and pay penalties. In addition, the organization faces a fine of 50 to 100 thousand rubles.

Who will pay taxes and fees?

The answer to this question mainly depends on whether the performer has the status of an individual entrepreneur or not.

So, if the contractor is an individual, then taxes (personal income tax) and contributions (general social security and compulsory medical insurance) will have to be withheld and transferred to the budget by the customer. In this case, the performer himself does not need to do anything.

However, if the GPC contractor has the status of an individual entrepreneur, then he will have to independently make the necessary payments to the state. The customer is not responsible in this case.

View from different sides

There are 2 parties to the contract: the customer and the contractor . They can be both individuals and legal entities, as well as individual entrepreneurs (in any combination of each other).

The law does not prohibit the involvement of additional performers - subcontractors . Then the first contractor will act as a general contractor, responsible to the customer, while the subcontractors are already responsible to him. If the subject of the contract is divisible, each subcontractor is responsible for its share. In case of indivisibility, the liability of subcontractors is joint and several.

REFERENCE! The relationship between the general contractor and subcontractors is regulated by a separate document - a subcontract agreement.

How to avoid problems with supervisory authorities?

Sometimes employers make a grave mistake by registering an employee hired on a permanent basis not with an employment contract, but with a GPA.

The motives for such behavior are obvious, because a civil agreement allows you to pay a lower amount of insurance premiums, avoid providing the employee with social guarantees and compensation, etc. However, regulatory authorities easily detect this violation, which ultimately leads to not the most pleasant consequences.

So, in order to avoid making such a mistake, customers need to adhere to the following recommendations:

1. To register a GPA, there must be a legal basis. A specific specialist should be hired to perform one-time work that is not of a regular nature.
2. It is important to format all documentation correctly - a typical mistake by customers is to use the following wording in the GPD text: “employee” and “employer” instead of “customer” and “performer (contractor)”, “wages” instead of “contract price” or “remuneration for work”, etc. It should be remembered that these terms are acceptable only in labor relations.
3. If there are any doubts about what kind of contract to formalize for this or that employee, it is recommended to first analyze judicial practice in similar situations.

Thus, civil law is a fairly broad area of ​​law, affecting a variety of types of legal relations between the parties (performance of work, transportation of people and goods, conducting research, etc.). At the same time, it is very important to be able to distinguish them from the labor relations that arise between an employee and an employer in order to avoid problems with supervisory authorities.

Contracts, both construction and household, require proper drafting. You can find out how to conclude such an agreement, as well as the specifics of its termination by agreement of the parties and unilaterally, on our website.

Without which there will be no contract

In a work contract, the essential elements include the subject of the contract and the deadlines for completion. Another element that does not affect materiality is the price, sometimes drawn up as an estimate. Let's take a closer look at these elements.

What subject are we talking about?

A work contract implies a specific subject - the result for which the contract was concluded. The achieved result must be material, separable from both sides. In addition, it must be possible to guarantee the quality of the result; it must depend on objective factors.

FOR EXAMPLE: the quality of the built foundation for a house depends on the materials used, it must comply with certain SNiPs, GOSTs and have a warranty period (that is, the foundation must last a certain period). But an English language course, even if taught by the best teachers using certified manuals, will not necessarily be mastered by students. Therefore, the latter cannot be the subject of a contract, unlike the former.

So, the subject of a contract can only be a thing or a property of this thing:

• a newly created material object (for example, a manufactured table);
• a new property of an already finished item (for example, an improved or repaired device);
• another result that has materiality (for example, developed documentation).

Enter deadlines

The deadlines specified in the text are essential - without them, the contract will not be valid. It is necessary to mark the start and end dates of the work. It is permissible to establish intermediate stages, especially in long-term contracts. Meeting the allotted time is the contractor’s problem. But, if stipulated by the conditions, the dates can be moved at the initiative of both parties.

Completion of the contract sooner than specified is at the discretion of the contractor. If the contract has a clause on urgency, delays will be paid additionally.

IMPORTANT! When the customer sees that the contractor will definitely not meet the deadline due to a late start or insufficient pace of work, it is permissible to refuse the contract and demand compensation for damages.

The other side also has the right to be paid for the results of work on time. If the customer delays accepting the work, avoiding contacts with the contractor, then the latter has the right, after informing the customer twice, to sell the result of his work a month after the deadline, taking the due amount for himself and sending the rest of the amount to the customer’s account.

I have rights, but I also have obligations

The contractor is obliged:

• comply with contractual deadlines and budgets;
• use your own forces, means and materials for work, unless otherwise specified in the contract, while guaranteeing the proper quality of tools, equipment and materials;
• perform the work efficiently (if the standards and warranty periods are not specified in the contract, then the usual requirements for this category of items apply);
• inform the customer about all circumstances that could affect the result (changes in the quality of materials, deadlines, estimates), suspending work until the customer clarifies the situation.

What can a contractor expect:

• customer refusal and compensation;
• if the quality is lower than required - refusal, requirement to replace the subject of the contract, correction of defects, price reduction, reimbursement of correction costs;
• if the contractor did not promptly inform the customer about the changed circumstances and continued performance without approval, then reference to these circumstances will not be taken into account.

The customer is obliged:

• in the case where the contract provides for a change in the quality of the thing, the subject of the contract must be provided in a timely manner and in proper condition;
• if the provision lies with the customer, then everything necessary must also be provided on time;
• respond to contractor requests in a timely manner;
• timely accept work according to the delivery and acceptance procedure;
• make a payment.

What does the customer risk:

• compensation to the contractor in case of unilateral refusal to work;
• suspension of work without timely provision (if agreed upon);
• rescheduling or increasing the cost of work (if there are problems with facilitating the work);
• without checking the quality during transmission, appeal to obvious shortcomings of the work.

Who can work under GPC and who can’t

The agreement is concluded between the constituent entities of the Russian Federation, government agencies, legal entities, individual entrepreneurs and individuals. All of them can be both customers and performers.

To the point. Details about the legal status of individual entrepreneurs.

The GPA concluded with the “physicist” attracts special attention from regulatory authorities. Such an agreement requires clear execution and correct wording. For example, it would be imprudent to call the customer an employer and the contractor an employee. In this case, the GPA can be regarded as a disguise of labor relations for the opportunity to save money and evade taxes.

Manual for drawing up a work acceptance certificate

Clause 1 of Article 720 of the Civil Code states that inspection of the work result and its acceptance must be carried out by the customer in the presence of the contractor, and at the same time they sign the corresponding act. In order for the procedure to go smoothly, you need to pay attention to the proper preparation of the document. We provide step-by-step instructions.

1. Name . The document is called “Work Acceptance Certificate”, then you need to indicate which ones, and also provide the details of the relevant contract.
2. Date of preparation . It may differ from the final date for completion of work specified in the contract. It is better to agree on the date of acceptance and transfer in the text of the contract separately.
3. Details of the parties . Names and details of legal entities, full names of individuals.
4. Job information . Information about the type, volume and timing of the contract.
5. Calculations . Indication of the amount of monetary or other measure of payment to the contractor.
6. Signatures . Persons who completed the act of acceptance and transfer of work or authorized to do so by the customer and contractor, indicating their positions, surnames and initials.
7. Seal . It is not provided for by law, but is a business custom; moreover, it contains the customer’s details.

IMPORTANT! If the act does not contain at least one of the listed points, it may be declared invalid.

Features when compiling

Considering what should not be written in a civil law agreement, so as not to introduce signs of an employment contract, it must reflect:

• the period for which the work must be done;
• the full amount of the fee for the entire volume of the order, and not in parts;
• the acceptance certificate as the fact of the end of the agreement;
• termination of relations between the parties after completion of the specified scope of work.

Information. In fact, the contract for the provision of services is a one-time contract when there is no need to hire a new specialist on staff.

We accept the finished result

The paper that records the completion of the work by the contractor and the satisfaction of the customer with it is called the act of acceptance of the work performed. It is mandatory only for construction contracts (clause 4, Article 753 of the Civil Code), but is also used in other agreements. This document can serve as evidence in case of legal disputes. The specifics of the contents of the act are recorded in the contract and appendices:

• form of the agreement (not defined by law);
• procedure for signing by the parties;
• timing of signing;
• persons authorized to sign;
• liability of the parties for non-signing.