The statement of the fact of labor relations

The article deals with some legislative procedures which enable us to reassess the relations based on a written civil legal agreement: 1) contractual, 2) administrative and 3) judicial. The author emphasizes a low level of legal technique in the development of new norms on the procedures connected with the real nature of labor relations; the possibility for their equivocality; a weak contingence with the norms of procedural legislation. It is stressed in the article that the corresponding legal provisions give ambiguous answers to the following questions: 1. When should a state labor inspector apply to the court? 2. When should he issue an injunction on the elimination of violations of labor legislation at his own discretion? The author proves that civil proceedings initiated by a labor inspector are action proceedings and the inspector himself is a procedural plaintiff. The administrative procedure of stating the fact of labor relations cannot produce impartial and valid results because of the peculiarities of factual materials to be estimated, the lack of open proceedings and adversarial principles. All non-correctable doubts on the recognition of relations under civil legal agreements to be labor relations are interpreted in favor of the existence of those relations. This presumption enables the courts to rely not on the formal leading marks for jurisdictional bodies when they apply a well-known principle "contracts should be per-formed"(pacta sunt servanda), but on the expectations of an employee to get reasonable and fair compensation for his "sold" labor. The author examines two main factors which can force both an employer and employee to the fictional recognition of their labor relations when these relations do not correspond to the following legal characteristics: 1) privileged claims of employees for wages; 2) the obligation of the Social Insurance Fund of the Russian Federation (not of the employer) to compensate the harm to health by a misadventure or professional illness. Thus, the decision of legislators to introduce the rules to state the legal labor nature of relations post factum holds a serious risk of a latent, sometimes even not provable abuse of law, its use against the interests of the third parties ("employer's" creditors) and the state. The administrative procedure of revealing the nature of relations in the sphere of labor use must be an exclusive one; the framework of its application should have a legislative character i.e. be connected with serious, evident and mass violations of the rights of employees.

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