Legal requirements
Indeed, labor legislation allows you to start work without an employment contract signed by the parties. According to Part 2 of Art. 67 of the Labor Code of the Russian Federation, an employment contract that is not formalized in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his authorized representative.
At the same time, the law does not at all exempt the employer from the requirement to sign with the employee all the documents necessary for registration of employment, but only gives a short delay: upon actual admission to work, the employer is obliged to draw up an employment contract with the employee in writing no later than three working days from the date of actual employment. employee permission to work. In addition, within three days from the date of actual start of work, the employee must be familiarized, against signature, with the order (instruction) on hiring, which is established by Part 2 of Art. 68 Labor Code of the Russian Federation.
The procedure for formalizing the actual admission of an employee to work is not regulated by labor legislation.
The procedure for formalizing the actual admission of an employee to work is not regulated by labor legislation, and neither the Labor Code nor any other regulations indicate the need to prepare additional documents.
The situation under consideration is an exception to the generally accepted rule: “first, the contract, then the work.” And even if in the future the employer does not draw up an employment contract and does not issue all the documents necessary for hiring, the “offended” employee will be able to protect and defend his rights, since labor legislation considers these labor relations to be established.
However, the person who makes the decision on the actual admission of the employee to work must be vested with the appropriate authority. Only in this case can the employment relationship be recognized as actually established. Based on clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” the representative of the employer in the case of the actual admission of the employee to work is the person authorized to hire workers in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations or by virtue of an employment contract concluded with this person. Otherwise, the relationship may not be recognized as an employment relationship; the employer has the right to refuse and not enter into an employment contract with an employee who was previously actually admitted to work.
At the end of 2013, Federal Law No. 421-FZ of December 28, 2013 introduced Article 67.1 into the Labor Code, establishing the consequences of actually allowing an unauthorized person to work.
According to this article, if an individual was actually allowed to work by an employee who is not authorized by the employer to give such permission, and the employer or his authorized representative refuses to recognize the relationship that arose between the person actually allowed to work and this employer as an employment relationship ( conclude an employment contract with the person actually admitted to work), the employer in whose interests the work was performed is obliged to pay such an individual for the time actually worked (work performed).
In this case, a person who has authorized actual admission to work, but does not have the right to do so, is held accountable, including material liability, in the manner established by labor legislation and other federal laws.
So, for example, in accordance with Art. 11 of the Federal Law of December 28, 2013 No. 421-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On Special Assessment of Working Conditions””, introducing changes, among other things, to the Code of the Russian Federation on Administrative Offences, with On January 1, 2015, for actual admission to work by an improper person, administrative liability will be provided in the form of a fine: for citizens in the amount of three thousand to five thousand rubles; for officials - from ten thousand to twenty thousand rubles.
Orally or in writing?
As noted above, the procedure for registering the actual admission of an employee to work is not regulated by labor legislation. Part 2 of Art. 67 of the Labor Code of the Russian Federation only establishes that upon actual admission, the employee begins work with the knowledge or on behalf of the employer or his representative.
What should the order of the authorized person be - oral or written?
Of course, an oral order on the actual admission of an employee to work will not contradict the law, but it is more expedient to formalize this admission in writing.
Of course, the preparation of additional documents (including a memo, an order on actual admission to work, etc.) is a rather labor-intensive process and will increase the time required to formalize the hiring of a new employee. However, in the future they will help confirm the legality of the employment relationship: if necessary, it is the written order of admission that will be proof that the three-day deadline for concluding the employment contract was met.
In addition, written documents confirm (or refute) the fact that the employee was allowed to work by an authorized person.
Paperwork
As a rule, the need to actually allow an employee to work is fixed in memorandum (Appendix 1) addressed to the head of the organization or another authorized person.
The memorandum also indicates the reasons why the employee should actually be allowed to work and determines the date of return to work.
The head of the organization or other authorized official puts a resolution on the report indicating the measures necessary to obtain actual permission to work.
The memorandum is the basis for publication order on actual admission to work (Appendix 2), with whom the employee gets acquainted with signature. This order is a personnel order, the text of which must indicate the date from which the employee is allowed to work. The order is signed by the head of the organization or another authorized person.
If necessary, in cases provided for by law (Article 69 of the Labor Code of the Russian Federation), after signing the order on actual admission to work, the future employee should be sent for a mandatory preliminary medical examination/examination. Before starting work, permitted to work in accordance with Part 3 of Art. 68 of the Labor Code of the Russian Federation, you need to familiarize yourself with the internal labor regulations, other local regulations of the organization related to the upcoming work activity, the collective agreement, and also, according to Part 2 of Art. 225 of the Labor Code of the Russian Federation, conduct instructions on labor protection. In addition, it is necessary to obtain from the person permitted to work the documents listed in Art. 65 of the Labor Code of the Russian Federation for the subsequent conclusion of an employment contract.
Test setup
The condition for establishing a test for someone allowed to work must be recorded in a separate test agreement (Appendix 3). This requirement is specified in Part 2 of Art. 70 Labor Code of the Russian Federation. If an employee is actually allowed to work without drawing up an employment contract, then, according to this norm, a probationary clause can be included in the employment contract only if the parties formalized it in the form of a separate agreement before starting work.
An agreement indicating the test period is drawn up before the start of work in writing in two copies. Each copy must be signed by the head of the organization or other authorized representative of the employer and the person allowed to work.
The employment contract must be drawn up in writing no later than three working days from the date of the employee’s actual admission to work
Registration of an employment contract
As already mentioned above, the employment contract must be drawn up in writing no later than three working days from the date of the employee’s actual admission to work (Part 2 of Article 67 of the Labor Code of the Russian Federation).
According to Part 2 of Art. 57 of the Labor Code of the Russian Federation, a mandatory condition for inclusion in an employment contract is the start date of work, therefore, the employment contract with an employee admitted to work indicates actual start date preceding the date of conclusion of the employment contract.
If the parties entered into an agreement to establish a test before starting work, this condition must also be reflected in the employment contract ( Appendix 4).
An employment contract is the basis for issuing a hiring order, which also indicates the actual start date of work.
When an employee is actually admitted to work, the work book is drawn up and filled out according to the general rules provided for by the Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books” and the Instructions for filling out work books, approved. Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69.
In this case, the date of hiring, entered in column 2 of the “Information about work” section of the employee’s work book, will also be ahead of the date of the basis order for hiring, indicated in column 4.
The Labor Code aims to streamline the relationships between labor parties, therefore the positions enshrined in it have legal consequences. This also applies to the grounds for the emergence of these relations, one of which is actual admission to work.
Let’s analyze how this can manifest itself in practice, what the consequences are for the employee and employers, and what the consequences may be in the event of dishonest fulfillment of one’s legal duties.
What does “approved to work in fact” mean?
The law requires the employer to properly formalize the relationship that arises with the employee, that is, to sign an employment contract. Not all employers are scrupulous about legal requirements: many prefer to use the labor of employees without burdening themselves with written responsibilities. In such cases, the work agreement is concluded verbally and the employee, on behalf of the manager or his representative, begins to perform the work entrusted to him. This means that he actually admitted to it.
IMPORTANT! From the point of view of the Labor Code, such registration of labor relations is improper.
When starting work without drawing up a document on mutual obligations, the employee does not familiarize himself with and does not sign a number of other mandatory documentation:
- inner order rules;
- employment order;
- collective agreement;
- job description;
- safety requirements, etc.
An employee who does not know his rights may think that the other party has complete control over his working hours, wages and working conditions. The Labor Code of the Russian Federation protects the weaker side of labor relations and legally equates actual admission to work to the full-fledged conclusion of an employment contract, even if it is not properly formalized.
Lines from the Labor Code of the Russian Federation
Equalization of the rights of actual admission to work and the employment contract was still in effect in Soviet labor legislation (Article 18 of the Labor Code of the RSFSR). In the Labor Code of the Russian Federation, the legal regulation of this problem is significantly expanded:
- in Art. 16 states that the proper and timely execution of an employment contract does not matter: if an employee has started work, it means that he has entered into an employment relationship with all legal consequences;
- Art. 20 defines an employee as an individual who has entered into an employment relationship with another party;
- Art. 61 specifies the moment the employment relationship comes into force - this is the day of signing the employment contract or the actual admission to work, which was authorized by the employer’s representative or simply knew about it;
- Art. 67 requires the employer to properly draw up a written employment contract with the employee who has started work within three days, and gives the employee the opportunity to reasonably demand this;
- Art. 91 indicates the terms of remuneration, in particular, that labor remuneration is accrued from the first day of work, that is, actual admission to it.
Employment contract = actual admission
The legal equality of these two methods of starting an employment relationship lies in their legal consequences. It is considered that an employee who has started work has already concluded an employment contract orally, and its written execution cannot be delayed for a period exceeding three working days.
Will an employment contract drawn up with such a delay be somehow different from a standard one? Differences:
- Difference in dates. The contract is not signed “retroactively”, therefore, it will have a date later than the one when the employee actually started work (the start date of work is indicated separately in the text of the contract).
- The nuance of entry into force. This agreement will come into force from the day of admission to work, and not from the moment of conclusion, as is usually the case.
Thus, actual admission to work is not an exemption from drawing up an employment contract, but only a small delay, a permissible exception to the general rule of employment, when the contract is first signed, and then the employee starts work.
How is actual permission to work obtained?
The law does not provide regulations according to which the employer secures the employee’s right to begin work on his instructions and with his knowledge. This procedure can be prescribed in the internal regulations of the organization. It could be:
- oral agreement;
- the employee writing an application for permission to work;
- order or order for admission;
- an official (report) note recording the fact of starting work at a new workplace.
It is of fundamental importance that only a representative of the employer vested with these powers can be allowed to work. These powers must be specified in local acts or constituent documents of the organization.
NOTE! In practice, workers, when starting work, cannot check whether the person who authorized them has such authority. Therefore, a rule has been adopted according to which in the courts such doubts are interpreted in favor of the employee, unless the employer proves that he purposefully familiarized the applicant with the authority or lack thereof.
Evidence of actual permission to work
If the employer has not recorded in any way the moment of admission of the new employee, how can this be proven if it is necessary to protect their rights?
First, after three days, you should request a written document on the employment relationship. If the employer does not do this, he falls under administrative liability.
Evidence of employment relationship may serve in court:
- pass to the territory of the organization;
- providing the employee with a workplace;
- acts on receipt of stationery, materials, workwear, etc.;
- document confirming a medical examination;
- employee's name in plans, programs, lists, etc.;
- audio or video recordings where the employer’s representative gives instructions to the employee, and the employee performs the work;
- witness statements;
- an agreement on material liability (sometimes concluded “bypassing” the labor agreement, where there is interaction with certain values);
- other evidence.
Actual admission and probationary period
Can we talk about entrance examinations if it is required to start work so urgently that it is not possible to first draw up an employment contract, where all the conditions of the probationary period are usually prescribed? Usually not. Actual admission to work, as if by default, fixes the suitability of the employee accepted in this way.
However, by agreement of the parties, entrance examinations can be completed before the conclusion of an employment contract. To do this, you will have to spend time and effort signing a separate agreement on this issue, as required by Part 2 of Art. 70 Labor Code of the Russian Federation. Only in this case can it be transferred to the employment contract. It must be executed in 2 copies - for each party.
If such an agreement has not been drawn up, the employer does not have the right to establish a probationary period upon subsequent execution of the employment contract.
Consequences of admission to work after the fact
If, within the three-day period provided by law, the employer has properly formalized the resulting employment relationship, no additional legal consequences arise. It’s just that a new employee has appeared on his staff, another representative of the staff. Consequences occur if the employee’s rights are violated by improper performance of the employer’s duties:
- If permission to work was obtained from a person who did not have such authority, and the employer refuses to hire him in the proper manner, he is obliged to pay the failed employee remuneration for the work performed in proportion to the time actually worked. The guilty employee who has exceeded his authority is subject to disciplinary action. If, as a result of this admission, real damage occurred, it will be recovered from the employee, but financial liability will also fall on the unauthorized representative (Article 39 of the Labor Code of the Russian Federation).
- If the employer has not drawn up a written employment contract within the three-day period established by law, the employee has the right to demand this. If the employer refuses, you can seek rights through court or the labor inspectorate. For violating the law, the employer faces a serious fine, the amount of which may vary depending on the type of violation:
- evasion of registration;
- untimely registration;
- improper registration;
- replacement of an employment contract with a civil law one.
- There is no employee signature on the employment contract. Such an agreement is considered to be executed improperly, for which the employer is responsible. This does not exempt him from labor relations, which are still considered concluded upon admission to work.
In itself, the actual admission of an employee to work is justified, is not recognized as a violation (up to a certain point) and is approved by law. This provision is strictly regulated, has its own deadlines and additional points, the implementation of which is mandatory. If these points are violated, we can talk about a violation of the law and the responsibility borne by the authorized person who assigned official duties to the employee.
Regulatory regulation
It can be considered effective even if it was not formalized in writing, but in fact the employee began to perform his duties. This situation has the formulation - actual admission to work. It has regulatory regulation, the violation of which becomes the basis for prosecution. FD is a position clearly limited by a time frame.
The responsibility that an employer bears in relation to an employee who is not authorized to work, arises in the case when the employer refuses to recognize the emergence of an employment relationship within a certain time and. The legislation of Russia establishes, setting out the principles on this issue in Government Resolutions and approved laws:
- Part 1, Article 67 and Article 61 of the Labor Code of the Russian Federation regulates labor relations between an employee and an employer with actual access,
- Article 2 of the Labor Code of the Russian Federation regulates issues of payment upon actual access of the employee,
- Part 1, Article 5.27 of the Code of Administrative Offenses of the Russian Federation regulates issues of administrative liability that an employer bears in cases of violation of the law,
- Article 391 of the Labor Code of the Russian Federation serves as the basis for regulating disputes on FD issues,
- Part 4, Article 16 of the Labor Code of the Russian Federation regulates issues of access to work.
What is it used for and what does it mean?
There are several moments when this situation can arise:
- when an employee is undergoing an internship and the employer is in no hurry to conclude an employment contract prematurely,
- The employer evades paying taxes and registers,
- The employer calculates this way.
The first point is quite justified. In cases where a probationary period has been completed, which fully confirms the employee’s qualifications, the employer subsequently enters into an employment contract with him, thereby complying with all established standards. The duration of the internship is from 2 to 5 days, sometimes longer, before passing the qualification test.
An employer has the right to refuse employment after completing an internship only if the employee cannot confirm his qualifications. and are a violation. However, in this case, the law also provides for full official employment, including internship days.
The last two points are an outright violation. An employee who is actually allowed to perform work, but has not entered into an employment contract with the employer, is unprotected in several directions at once:
- Does not have the right to receive social security and social protection, like other employees,
- He may be disadvantaged in payment for his work,
- Upon dismissal, such an employee cannot count on any payments,
- He doesn’t, etc.
Therefore, we can talk about insecurity at all levels.
How is FD issued?
According to the law, FD is not a probationary period; it is already the beginning of working activity. Despite the fact that in the case of FD an employment contract has not been drawn up, the employment relationship has already entered into force. The actual access of an employee without drawing up an employment contract has clear boundaries - 3 days. That is, after this period, the contract must be drawn up in writing, otherwise this moment can be considered a violation, which entails negative consequences. Since the FD is the beginning of labor activity, it must also be documented. Who issues the FD?
- Directly from management
- An authorized person who can prove these powers, i.e. provide documents.
Management or an authorized person draws up a memorandum authorizing the employee’s access to work. This note must be submitted to the accounting and personnel departments. It is compiled in any form. It must indicate the employee’s full name and the date when he starts work. After three days, an employment contract will be concluded with the employee on the basis of this note. The report must be registered in the local acts of the enterprise.
How to prove it
In cases where disputes arise on this issue, the employee is required to prove the FD for work. How can I do that?
- Sometimes this can be quite difficult, especially in cases where the work is not related to production or paperwork. In such a situation, photographs from the place of work and videos can be useful. If there were CCTV cameras at the workplace, the court has the right to demand the provision of information from these media.
- If the employee worked in production or worked with papers, then the documents or the product he produced, respectively, can serve as evidence.
- If an enterprise or organization operates a pass system, then an employee’s pass can be reliable evidence in such a situation.
- And, of course, testimony of witnesses who can confirm the fact of the employee’s presence at the workplace and the performance of his job duties.
This process is quite complex; the burden of proving FD in court falls entirely on the employee.
Responsibility for actual permission to work
In this situation, both the employer or his authorized representative and the employee himself may be held liable. In addition to these persons, liability is also borne by the employee who was not authorized to involve the employee in work activities, but voluntarily took the initiative and allowed the employee to work.
Punishments against the employer.
In accordance with Article 67 of the Labor Code (LC), when a person begins work with the knowledge or on behalf of the employer or his representative, the employment contract is considered concluded, even if it is not in writing.
This situation is called actual permission to work. When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than 3 working days from the date the employee is actually admitted to work.
Actual admission is considered an improper procedure for concluding an employment contract, but, despite this circumstance, it is directly provided for in Articles 61 and 67 of the Labor Code as the basis for the emergence of labor relations.
- What does the internship involve?
Its duration is set in different sizes - as a rule, from 2 to 5 days, sometimes it drags on until a person passes a certain qualifying exam or test.
At the same time, it often happens that the very next day after employment, the employee who completed the internship is suspended from work.
As a rule, such removal from work is explained by the fact that the director did not sign the employment contract and the hiring order.
- Can a new employee protect himself?
In paragraph 1, an explanation appeared that a labor dispute that arose in connection with a refusal to hire is not a dispute about reinstatement, since it does not arise between the employer and the person who previously had an employment relationship with him. At the same time, paragraph 10 of the same Resolution clarifies that when considering disputes related to a refusal to hire, it is necessary to check whether the employer made an offer about available vacancies, whether negotiations on employment were conducted, i.e. whether there was a conversation with agreement on the position, specialty, qualifications, working and rest conditions, and payment issues. No less important is the grounds on which this person was denied an employment contract.
In the practice of formalizing labor relations, quite often, after a conversation in the personnel department, the applicant is sent to the head of the section (head of the department), i.e. to the future immediate supervisor.
The head of the site, wanting to find out professional qualifications, assigns an “internship”. The applicant is given all the necessary supplies and demonstrates his professional suitability during the working day.
The next day, the applicant is denied employment, explaining that the director did not sign the employment contract and the hiring order. In the course of resolving a labor dispute, taking into account the absence of a written employment contract and a hiring order, it is concluded that no employment relationship has arisen with this employee.
However, in accordance with Article 67 of the Labor Code, when a person begins work with the knowledge or on behalf of the employer or his representative, the employment contract is considered concluded, even if it is not in writing. This situation is called actual permission to work. Actual admission is considered an improper procedure for concluding an employment contract, but, despite this circumstance, it is directly provided for in Articles 61 and 67 of the Labor Code as the basis for the emergence of labor relations.
In this situation, the employer is obliged to draw up an employment contract in writing and provide it to the employee for signature no later than 3 working days from the moment he began to perform his job duties. During the same 3 days, the employer is obliged to prepare an order for employment, announce it to the employee against signature, and give a copy of this order to the employee upon his request.
- What should a “fired” employee do?
The courts consider individual labor disputes based on employee applications, when the employee goes to court without going through the labor dispute commission.
Individual labor disputes are considered directly in the courts based on the employee’s applications - about reinstatement at work, regardless of the grounds for termination of the employment contract, about changing the date and wording of the reason for dismissal, about transfer to another job, about payment for the period of forced absence, or about payment of the difference in wages for time of performing lower-paid work, about unlawful actions (inaction) of the employer when processing and protecting the employee’s personal data.
An employee has the right to go to court to resolve an individual labor dispute within 3 months from the day he learned or should have learned about a violation of his rights, and in disputes about dismissal - within one month from the date he was given a copy of the dismissal order or from the date of issue of the work book.
If dismissal or transfer to another job is recognized as illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute. The body considering an individual labor dispute makes a decision to pay the employee the average salary for the entire period of forced absence or the difference in earnings for the entire period of performing lower-paid work.
If the body considering an individual labor dispute recognizes the employee’s monetary claims as justified, they are satisfied in full.
The decision to reinstate an illegally dismissed (or illegally not hired) employee, or to reinstate an employee who was illegally transferred to another job to his previous job is subject to immediate execution. If the employer delays the execution of such a decision, the body that made the decision makes a determination to pay the employee the average salary or difference in earnings for the entire time of delay in execution of the decision.
© We draw the special attention of our colleagues to the need to refer to "
Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation
considered in a court session dated December 15, 1998 the protest of the Deputy Chairman of the Supreme Court of Russia against the decision of the Tverskoy Intermunicipal Court of Moscow dated March 20, 1996, the ruling of the judicial panel for civil cases of the Moscow City Court dated April 22, 1996 and the resolution of the Moscow Presidium city court dated December 11, 1997
Having heard the report of Judge N.V.I., the conclusion of the Assistant Prosecutor General of Russia K.L.L. agreed with the protest, having examined the case materials, the board found:
K.S.N. filed a lawsuit against AOZT "Areopag EX LTD" for the entry into the work book of records of hiring as a chief specialist, dismissal due to staff reduction, and recovery of wages for the period from September 1, 1994 to the day of the court decision and two months' severance pay for staff reductions.
By the decision of the Tverskoy Intermunicipal Court of Moscow dated March 20, 1996, left unchanged by the ruling of the judicial panel for civil cases of the Moscow City Court dated April 22, 1996, in the claim of K.S.N. denied.
By a resolution of the Presidium of the Moscow City Court dated December 11, 1997, the protest of the Moscow City Prosecutor, which raised the issue of canceling the decision and cassation ruling, was left unsatisfied.
The protest raised the issue of canceling court decisions.
Having discussed the arguments of the protest, the board finds it subject to satisfaction.
In refusing to satisfy the claims, the court proceeded from the fact that the fact of concluding an employment agreement between the plaintiff and the defendant was not confirmed at the court hearing.
However, we cannot agree with this conclusion.
According to Art. 18 of the Labor Code of the Russian Federation and clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 N 16 as amended by the Plenum Resolution of December 21, 1993 N 11, actual admission to work is considered the conclusion of an employment contract, regardless of whether the admission duly registered for work. In this regard, courts must take into account that an employment contract is considered concluded if the work is performed without issuing an order by an official with the right to hire, or when the work was performed with his knowledge.
From the attached case of the Presnensky Intermunicipal Court of Moscow, it is clear that the plaintiff was actually allowed to work and carried out the instructions of the vice-president of Areopagus JSC, money for July-August K.S.N. paid (case sheet 11-12).
The case file contains a copy of the pass to enter the building occupied by the defendant (case file 78, 66), the pass was signed by the general director of the company "Exremos" N.V.G. The court did not evaluate this circumstance, but referred to the fact that the plaintiff created the work of “a mechanism for settlements and payments of Russia for goods, the fuel group with the former Soviet republics” on the premises of Areopag EX LTD, and therefore this cannot serve as a basis to satisfy the claim.
However, it was precisely these circumstances that the plaintiff referred to as confirmation of his claims that he performed the specified work on behalf of management.
The court refused to satisfy the demands for making an entry in the work book about hiring and dismissal due to staff reduction due to the fact that, according to the staffing table submitted by the defendant, approved on January 3, 1994 (case file 91), it does not contain position of chief specialist.
Meanwhile, this does not indicate that the plaintiff was not hired and did not perform it. The absence of an appropriate position in the staffing table is grounds for dismissal of an employee due to staff reduction.
In addition, the position of vice-president of JSC Areopag EKS LTD, occupied by B.V.A., who represented the interests of the defendant in the Presnensky Intermunicipal Court of Moscow, is also absent from the staffing table available in the case materials. The court ignored this circumstance.
If there is sufficient evidence confirming the actual admission of the plaintiff to work by a person with the right to hire, the fulfillment of his tasks, payment of wages, which was not disputed by the defendant at the court hearing, the presence of a pass to enter the building occupied by the defendant, the court unreasonably refused to satisfy claims and did not apply the rules of substantive law to be applied.
The indication in the decision of the presidium that the plaintiff performed the work with personal labor for remuneration and this is a civil law agreement is erroneous, since it is not confirmed by the case materials and has no legal basis.
Under such circumstances, the court decision and all subsequent court decisions cannot be considered legal.
Guided by Art. Art. 329, 330, Civil Procedure Code of the RSFSR, the board determined:
cancel the decision of the Tverskoy Intermunicipal Court of Moscow dated March 20, 1996, the ruling of the judicial panel for civil cases of the Moscow City Court dated April 22, 1996, the resolution of the Presidium of the Moscow City Court dated December 11, 1997 and send the case for a new trial at that or intermunicipal court.
