What is the difference between work on a work book and an employment contract. The difference between work and service

An employment contract is an agreement that is signed by both the employer and the employee. The employer, as a rule, undertakes: to provide the subordinate necessary conditions labor, timely payment wages. In turn, the employee guarantees: compliance with the internal regulations of the company, the performance of all the work to which he is obligated by the contract. Almost always, a certain classification is required from an employee, which he will need when performing current tasks.

After the conclusion of such a contract, all the necessary papers are drawn up, starting from the application and ending with orders for appointment to a specific place of work. During the entire working period, entries are made in the work book, in parallel with the payment of wages, payments are made in Pension Fund. Performance different kind work in a certain position - this is work for this company.

It is worth noting that signing an employment contract does not oblige you to do the work if you have found a more promising job. You can apply for the calculation, after which you will have to work for some time until the company finds a replacement for you. Such time may be limited, usually it is written in the contract with the company.

Contract of employment

Unlike an employment contract, an employment agreement is a one-time act that imposes a requirement on the employee to complete a task, and on the employer to pay the remuneration due.

When drawing up an employment agreement, the type of work and the period that will be spent by the contractor must be indicated. After the work is done, both parties sign the acts of acceptance / delivery of work and end the cooperation. The number of such agreements is not limited. It is advisable to keep acts with the signature of the other party, otherwise problems may arise when considering the company's cases in court. The agreement does not imply a transfer to the pension fund, but an entry in the work book is made at the request of the employer.

Remember that signing an employment agreement, in the case when the work can only be performed under the terms of an employment contract, is a violation of the law, so never agree to such an offer, no matter what benefits you are promised. In the case of disclosure of such a crime, both parties, both the customer and the contractor, are punished by the law.

What are the features of working under an employment contract without a work book?

When work under a contract without a work book does not contradict the legislation of Russia

According to the Labor Code Russian Federation(dated December 30, 2001 N 197-FZ) there are only 2 options for drawing up an employment contract with an employee without making an entry in the work book:

the work of a part-time worker (relations are regulated by Chapter 44, Section 12, Part 4 of the Labor Code of the Russian Federation);
work of a worker for a natural person who individual entrepreneur is not (relations are regulated by Chapter 48, Section 12, Part 4 of the Labor Code of the Russian Federation).

Other legislatively provided options for registering an employee precisely according to employment contract, but without registration of a work book no. Therefore, if the applicant plans to work at the main place of work for an individual entrepreneur or in an organization ( legal entity), and the future employer does not plan to make an entry in the work book, the applicant will most likely be offered a civil law contract.

The nuances of working under an employment contract with an employer - an individual

An employer - an individual who is not an individual entrepreneur, may be a person who hires employees to conduct personal, auxiliary or household. For example, a citizen who has a large vegetable garden hires a gardener to help him. At the same time, his activity is not connected with the extraction of profit from this garden farm. He grows fruits and vegetables for personal consumption.

Such an employer does not have the right to make entries in the work books of employees, as well as to start a new work book for the employee. The guarantee of labor relations in this case will be a written employment contract.

Important: such an employer notifies the self-government bodies at the place of his stay about the hiring and dismissal of employees.

Some features of labor relations with an employer - an individual (not an individual entrepreneur):

such an employer is obliged to pay mandatory contributions and payments to the pension fund, social insurance fund and compulsory medical insurance fund;
the employer is obliged to issue an insurance pension certificate for employees (if the employee works for the first time);
an employment contract in this case may be open-ended and for a certain period, its conditions may be individual, but not contradict the current Labor Code (including with regard to annual holidays, the length of the working week, etc.).

The nuances of working under an employment contract part-time

The employer is obliged to make entries in the work book for each employee who has worked for him for more than 5 days, if this work is the main one for the employee. Thus, with a combination of jobs, the employer has no obligation to make entries in the work book.

Important: at the initiative and desire of the employee himself, an entry can be made on the basis of a certificate from the main place of work.

Part-time work implies all the guarantees provided for in the Labor Code of Russia (vacation, payment of sick leave in stipulated cases, etc.). The guarantee of legal relations is an employment contract.

In this case, part-time work will be included in the length of service, and the employer will accrue and pay insurance premiums for the employee.

Differences between an employment contract and a civil law contract

Employers often replace the concept of labor relations with a civil law contract. It's far from the same. And, despite the similarity of the contracts (describe the essence of the work and duties of the employee), they have a number of significant differences:

Parties of legal relations. For an employment contract, this is an employee and an employer. For a civil law contract, the parties are, for example, the customer and the contractor (when concluding a service contract); agent and principal (when concluding an agency agreement), etc.
The civil law contract includes conditions on the rights and obligations of the parties, but does not impose on the customer of the work (service) the obligations provided for by the Labor Code of the Russian Federation for the employer (making an entry in the work book, paying vacation pay, sick leave, business trips, etc.).
In the case of civil law relations, the internal labor regulations will not apply to the employee
When concluding a civil law contract, deductions and mandatory payments to insurance funds will be made, but the length of service will not be calculated.
A civil law contract, as a rule, is concluded with an employee in order to perform a specific task, work, and therefore the contract will have a period agreed by the parties. An employment contract is most often open-ended (but may be fixed-term), is concluded for the performance of a number of labor duties, the same from month to month.
Salary under an employment contract is paid 2 times a month (advance and main part), in civil law relations it may be provided individual order payment for work done.

Read also: Vacation for disabled people of the 3rd group of the Labor Code of the Russian Federation 2019

Important: a civil law contract can be recognized as a labor contract in a judicial proceeding, if in fact it is such. There are cases when only the names of the parties are changed in the employment contract - on purpose, so as not to bear the obligations stipulated by the Labor legislation of the Russian Federation.

The guarantee of your legal relationship is primarily an employment contract, and not a work book at all (disputes about the cancellation of which have been going on for more than a year). No entry in work book on work will not bring irreparable consequences if there is a written employment contract and the employer does not evade paying insurance premiums for the employee. However, the absence of an entry in the work book about work cannot be an arbitrary decision of the employer and should not go beyond Labor Code RF.

Work under a contract without a work book

Labor relations built between the employee and the employer should be secured not only by signing the relevant contract, but also by the execution of other documents indicating the work experience of the employee. Among them, in particular, is the work book.

An employment contract without a work book can be concluded in exceptional cases provided for by the Labor Code of the Russian Federation. In reality, the situation is different and labor standards are often violated by the employer. In any case, even if the employer refuses to make an entry in the work book, a well-written employment contract will help protect the rights of the employee.

Meaning of Documents

The work book is one of the main documents of any employee. A book of this kind is started to display the seniority and experience of the employee. This information will be needed when the employee reaches retirement age in order to calculate the required pension payments.

Exceptional cases when registration without a work book is allowed are:

Applying for a job for the first time.
Performing part-time work functions.
The book is lost.
A contract is concluded, which is in the nature of civil law.

For example, as a vacancy for employment at workplace under a contract without a work book, there may be a part-time job in the evening, as a courier or operator, in his spare time from the main working hours.

The employment contract acts as no less important document than the work book. It prescribes all the rights, guarantees of the employee, as well as his obligations and the employer.

The contract according to the rules must be in writing. If this did not happen when hiring, the employment relationship will be considered concluded if the employee has actually begun to perform his labor duties.

Labor hiring

In addition to the employment contract, the legislation provides for another document that establishes the legal relationship between the parties to the labor process. It's about a contract of employment.

In addition to labor legislation, this type of contract is also regulated by the norms of civil law. The subject of the contract, as a rule, is the obligation to fulfill various orders or tasks, that is, specific amounts of work or services.

At the legislative level, it is allowed to conclude an employment contract without a work book, since works or services are most often of a one-time nature. For example, an employment contract when applying for a job can be concluded without issuing a work book if copyright objects are created.

Particular attention should be paid to the following fact: if an employment contract was concluded with an employee without issuing a work book and in fact he has been working for a long time, doing the same work, then such legal relations can be regarded as employment and the employee must conclude an employment contract . In this case, the employer compensates the employee for all the due payments that he could receive while working under an employment contract.

When hiring an employee under an employment contract and without the appropriate registration of a work book, you should pay attention to the following important points:

A specific list of works or services that the employee must perform is indicated.
A prerequisite is the determination of specific dates for the start of the performance or provision of work / services and the moment of their completion.
The content of the contract should not have clauses from which it can be understood that it is not a contract of employment, but a labor agreement. While a sample employment contract without a work book, on the contrary, should contain more conditions indicating the emergence of labor relations between its parties.

Advantages and disadvantages of working without a work book

Working under a contract without a work book has its pros and cons:

The pluses include the fact that even if hiring occurs without entering the required information in the book confirming labor activity, but at the same time an employment contract is concluded, the employer is assigned all the obligations provided for in labor legislation, including payroll and deductions insurance contributions in favor of the employee.
Employment without a work book does not affect the course of work experience in the most favorable way, since it will simply be impossible to confirm it without an appropriate record.
When employed in another place of work, it will not be possible to confirm the presence of experience.

For example, an employee worked without a work book for five years. When it came time to retire, it turned out that the employment contract had been lost and she could not provide any other confirmation of the length of service for these five years. When applying for a pension, a five-year period of work will not be taken into account. Otherwise, an employment contract without a work book does not have any special distinguishing points that would be worth paying attention to.

Of course, finding a job where employment occurs without the requirement to present a work book is quite simple, since many employers do not want to take on the extra hassle of properly filling out an employee's contract.

Whether a work book will be issued or not depends largely on the employee. For example, if he finds vacancies under a contract without a work book, then when applying for a job, he may demand to properly make an appropriate entry in the book confirming his work experience.

Employment contract and employment contract: what is the difference?

An employment contract and an employment contract are not synonyms for the same document. These are different agreements that have some significant differences.

It does not matter on the basis of which contract the employee will carry out his labor activity. The main thing is that all the conditions of this document do not infringe on his rights and comply with the norms of the law. Therefore, when drawing up an agreement or contract, you need to carefully study all the points and discuss them with the employer.

Dear readers! Our articles talk about typical ways legal issues, but each case is unique.

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What is it - an employment contract and an employment contract?

According to the employment contract, the employer undertakes to provide his subordinates with the opportunity to perform professional activities for a certain wage. At the same time, for its part, it undertakes to provide additional guarantees provided by labor legislation.

You can learn more about a standard employment contract in our article.

As for the labor contract, this term is not in the current legislation. But this does not mean that his imprisonment is illegal. Most often, this type of agreement is used for state or municipal employees.

The difference between these two kinds of documents is primarily lies in the timing. By concluding an employment contract, the employee can terminate it at any time and quit. In addition, an open-ended contract does not need to be renegotiated.

But in the employment contract there are time limits. Most often, the relationship between an employee and an employer is formalized through a contract. for a period of 2 to 5 years. And after this time it is necessary to conclude a new document.

The employer may refuse to renew the employment contract, giving no reasons for his decision. The same rights arise at the expiration of the document from the subordinate. But it is impossible to terminate cooperation ahead of schedule by breaking the contract. Otherwise, termination will result in lawsuit and penalties .

Another difference is that a contract may contain a large number of additional conditions and requirements, while the contract is often drawn up according to a standard template. Ignorance of this difference often leads to the fact that the employee does not check the document and thus allows himself to be exploited.

Therefore, it is important to pay attention to the presence of the following clauses in the contract:

The possibility of termination of the contract by the employer.
The amount of compensation upon termination of the contract by one of the parties.
Ways to motivate an employee.

How is a contract different from other types of documents?

From agreement

There is very little difference between the two documents. The employment contract specifies much more conditions. than in an employment contract. The last document usually contains only information about the subject, price and terms. Whereas the contract contains data on the mode of operation, vacation, etc.

From an effective contract

An effective contract is an agreement between an employer and a subordinate, in which all conditions are highly specified.

Particular attention is paid to incentive payments. depending on efficiency or working conditions.

Download a sample form of an effective contract here for free.

Most often, this type of contract is concluded with workers performing work in special climatic or difficult conditions, or work related to state secrets. This is what distinguishes an effective contract from a standard employment contract.

From service contract

A service contract is concluded when a person performs labor activity in the civil service.

When drawing up this contract, it is understood that a person must fulfill his duties in accordance with special regulations and follow official regulations. The remaining essential terms of the contract are not much different from the terms of a conventional employment contract.

You can find the contract form here.

From a contract

In practice, the leaders of most enterprises do not attach importance to the differences between these two documents. However, There is a difference and it is quite significant. These differences are:

An employment contract and a work contract are governed by different regulations.
When drawing up a work contract, the parties are the customer and the contractor, and in the employment contract, the employee and the employer.
The object of the contract is the result of the work. And in an employment contract, the object is the work of an employee.
The relationship of the parties and the risks associated with labor activity.
Payment. When concluding an employment contract, employees systematically receive wages, while under a work contract, payment is made for the result.

See the table for details:

From civil law

Many able-bodied citizens do not see the difference between these contracts, which often leads to negative consequences. Most often when drawing up a civil law contract the employee is not enrolled in the state, which means that he cannot count on an entry in the work book or on receiving experience.

A sample civil law contract can be found here.

In addition, the documents have the following differences:

An employee carrying out labor activities under a civil law contract is not obliged to obey the labor regulations.
A civil law contract has a fixed term, while employment contracts usually do not have a term.
Payment is made differently and is often tied to the result.

A civil law contract can be recognized as an employment contract if it meets all the necessary requirements.

Often, employers use the legal incompetence of employees and change some conditions, issuing one document after another.

From work book

Employment contract and work book - two important documents for any working citizen. When applying for a job, the manager is obliged to draw up an agreement with him and enter information about employment in the work book.

The difference between these two documents is that the contract contains the rights and obligations of the parties, and the work book - only a recorded fact of employment. This information serves as the basis for applying for a pension.

It is on the basis of the employment contract that an entry is made in the work book. Exceptions are cases when an employee performs part-time duties or works for a person who is not an individual entrepreneur.

If the employer offers work with registration according to the work book, but without a contract, then you should know that it is illegal. Most likely, the manager will not make any records, but will conclude a civil law contract with the subordinate.

What is the difference between a civil law contract and an employment contract, see this video:

Do you have a legal question?

Drawing up and conclusion of an employment contract with an employee without a work book

To be confident in the future and have a paid vacation, sick leave and other benefits and guarantees provided for by the Law, when applying for a job, you need to carefully consider the registration of labor relations.

Often, the employer wants to save on contributions to the pension and insurance funds, and offers the new employee to sign a civil law contract instead of the required labor contract. What are the differences between these types of legal relations, and in what cases can they be signed?

Employment contract, copyright, agency and contract - what's the difference?

It would seem that both of these agreements provide for the rights and obligations of the parties, and the legislation does not particularly prevent the conclusion of civil law relations, and at the same time they are fundamentally different from each other:

Usually, an employment contract is concluded for an indefinite period of time, since a civil law contract is concluded only for a certain period of time.
The employment contract provides for labor safety, medical and insurance benefits, but this does not guarantee, for example, a contract or an author's contract.
An employee who has drawn up an employment contract receives a monthly salary, since a civil law employee may not be paid for the work done if it was spoiled or done poorly.
The employment contract provides for annual paid leave, the right of the employee not to work on weekends and public holidays and others, which do not guarantee labor relations under a civil law contract: the work must be done on time, which means that work must also be done on generally accepted days off.
For an employee working under an employment contract, deductions are made to the pension fund, which guarantees a secure old age. This is not carried out when concluding a civil law contract, which means that an old-age pension cannot be accrued.
Entries in the employee's work book are entered only at the conclusion of an employment contract, and civil law relations do not allow the employer to do this.

Probably everyone is familiar with these concepts. In criminal proceedings, such types of punishments are often imposed at the time of sentencing as an alternative to a real or suspended sentence. So, what is each of these types of public works?

This type of employment is one of the varieties of social labor, to which a guilty person can be sentenced as a punishment for crimes of minor gravity. Crimes in this category include:

Theft.
Illegal transactions.
Beating causing minor bodily harm.
slander.
Hacking (including hacking other people's social media accounts)

It must also be understood that for crimes of minor gravity this is not the only punishment: quite often sent to a correctional institution for up to three years is used.

The maximum period for which an offender can be convicted may vary from 60 to 480 hours. Permissible rate working hours per day - no more than 2 hours for persons from 14 to 16 years old, no more than 3 - for persons 16-18 years old and no more than 4 hours for an adult. The method of mining and the enterprise where it will be carried out are chosen by the authorities local government, after coordinating the decision with the penitentiary authorities.

Due to its specificity, this measure is not applicable to certain categories of citizens, in particular:

To persons with a disability of the first group (documented)
Pregnant women and women with children under three years of age
To conscripts who are under the influence of conscription at the time of sentencing.

For convicts who are evaders, a tougher punishment is provided. Compulsory work can be replaced by forced work or by sending to the MLS. In this case, the calculation will apply: one day of imprisonment or forced labor is equal to eight hours of compulsory labor.

You can get the status of a dodger for three reasons:

Within one month, do not go to work more than twice without a good reason.
Get reprimanded more than twice in one month for violating labor discipline.
Hide from the controlling body. In this case, the violator is put on the wanted list, and if detained, the evader faces arrest from two to thirty days.

Correctional labor

Their essence is to punish a convicted person for committing a criminal offense of small or medium gravity, as well as to involve the offender in socially useful work. Compared to other measures, they are considered a fairly mild form of punishment, and also have a lower chance of recidivism.

If the convict is already officially employed, then the enterprise for working off is usually chosen at the place of employment, and a certain percentage is deducted from the salary of the offender in favor of the state (from 5 to 20 percent).

For unemployed convicts, the place of working off is appointed by the penitentiary inspection together with local governments. In this case, the relationship between the convicted person and the enterprise that controls him is regulated by labor legislation, as well as internal regulations. regulations of this enterprise. A certain percentage is withdrawn from the salary of the convict in favor of the state every month.

The terms of labor service, as well as the percentage withheld from the salary, are established by the court when sentencing. The period of working off is assigned in the range from two to twenty-four months.

As in the previous case, such a measure is not applicable to persons who are disabled of the first group, pregnant women, women with small children, as well as conscripts.

In case of malicious evasion, as well as coming to the enterprise in a state of alcoholic or drug intoxication, the employee is issued a warning. In case of a repeated incident, the punishment may change to forced labor or imprisonment. In this case, the day of forced labor or arrest will be considered as three days of correctional.

Common features

Both punishments have a number common features, in particular:

Both types of social labor activity are aimed primarily at correcting the convict, and not at isolating him from society.
There is no complete restriction of freedom, thanks to which the convict can lead a normal life and not be under the strong influence of the criminal environment.
Both types of social labor are assigned for crimes of minor gravity. For crimes of a higher severity, the punishment is chosen much more severely, although there are exceptions.
For malicious evasion, as well as for material damage caused to the curator organization during this period, in both cases a number of tougher measures may follow, up to and including imprisonment.
The same categories of citizens to whom these measures cannot be applied.

Differences

There are clear differences between these concepts:

Compulsory work is served in the time free from the main activity and is not paid in any way, while correctional work allows you not to change the usual daily routine, only giving part of the income to the state.
When choosing compulsory works when pronouncing the sentence by the court, their duration is appointed in hours, in case of correctional - in months, years and weeks. In the latter case, there are a number of advantages: this period also includes legal leave of 28 calendar days and paid sick leave.
From the foregoing, it follows that corrective labor is an easier form of liability for criminal offenses than mandatory: they less restrict the freedom and habitual schedule of the offender.

Works are understood as actions aimed at achieving a material result, which may consist in the creation of a thing, its processing, processing or other qualitative change such as repair. Moreover, the result of the work is known in advance and is determined by the person who ordered their implementation, but the method for general rule determined by the performer.

A service, unlike work, is an action or activity carried out on order that does not have a material result (for example, the activity of a custodian, commission agent, carrier, etc.).

Article 128 of the Civil Code of the Russian Federation establishes services as an object of civil rights. Works and services constitute an independent group of objects of civil rights along with property, which includes:

Consequently, the concept of "property" does not cover works and services, although service contracts are referred to as property contracts.

The difference between services and work is as follows:

In accordance with paragraph 1 of Article 702 of the Civil Code of the Russian Federation, it is established that the person who performs the work is obliged to produce a specification and submit the result to the customer. If the result is not achieved, the work is not considered completed.

Services grouped on the basis of the absence of a material result, they include:

bank account agreement

Services in the field of culture and education,

Trust management of property.

Work is characterized by the achievement of a material result.

This also includes performance contracts. repair work. Of the two legal signs of work (clause 1 of article 703 of the Civil Code):

Manufacture and processing (processing), the latter refers to repair. The provisions on building contracts (Article 740 - 757 of the Civil Code) apply to the repair of buildings and premises.

Equipment repair activities household appliances, tools, jewelry can be attributed to the provision of services.

Information.

The results of intellectual activity as intangible benefits can be considered as a certain type of information resources.

As a special object of civil rights, information is characterized by the following features:

It is an intangible good, not reducible to those physical objects that act as its carriers (record on paper, magnetic tape, etc.).

Information is a non-consumable good that undergoes only moral, but not physical aging.

There is the possibility of its practically unlimited replication, distribution and transformation of the forms of its fixation.

The law does not secure for anyone a monopoly on the possession and use of information, with the exception of that which is both an object of intellectual property or falls under the concept of official and commercial secrets.

Official and commercial secrets are a special kind of information that is specifically highlighted in Art. 139 of the Civil Code of the Russian Federation. Entrepreneurs usually include data on ongoing negotiations, concluded transactions, contractors, property status, etc. to this kind of information. From the point of view of the current legislation, official and commercial secrets also include information regarding the technologies used, technical solutions, methods of organizing production, etc., i.e. everything that is usually covered by the concept of production secret ("know-how").

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What is the difference between works and services?

I often receive contracts for analysis that confuse work and services.

For example, at the beginning of the contract it is stated that the Contractor provides services, and then in the subject or in the list of services provided, I see that, in fact, it should be about the performance of work.

Sometimes in the text of the contract there is an inconsistent use of these concepts - they confuse works and services.

However, the difference between works and services is not a difference between words, it is a difference between two legal constructions that have different legal consequences.

How to distinguish works from services?

The criterion is actually quite simple.

Works always have a material result. Services have no result at all.

“What is meant in this case by the result?”

The result is understood as some object - material or materialized, which must be created as a result of the actions of the Contractor.

Let's say software- not material, but materialized, because you can interact with it.

Execution of works

If, as a result of the actions of the Executor, some object is created that did not exist before, this is work.

Ultimately, such an object can be evaluated and put on a balance sheet. And this object is an object of civil rights.

For the sake of its creation, people conclude a contract. Therefore, when describing the work, lawyers describe the result of the work, and not the actions of the Contractor.

For the same reason, all claims of the Customers related to violation of the terms of the contract relate specifically to the quality of the result of the work or the timing of its receipt.

How this item was created is completely irrelevant.

Examples of work performed:

build a house,
write a book, program, create photographs, make a thing
etc.

Provision of services

Services have no result in principle.

It is the actions of the Executor themselves that are important here. And it is these actions that are described in the contracts.

Service delivery examples:

musicians play at a corporate party (where is the result here? :)),
any kind of consultation
etc.

And it is the actions of the Contractor that constitute the subject of the service agreement.

It is always important for us to know how services will be rendered to us. Whatever area of services we take, it is the actions of the Contractor that are important here.

In general, it is not difficult to determine the subject of the contract (service or work), the main thing is not to rush and think ...

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The difference between services and works

As already noted, one of the philological interpretations comes from the semantic field: occupation, work, activity. Taken in this sense, the concept of "work" covers, includes all types of subject-practical activities, including services.

When defining services, the emphasis is on the fact that this is an action that benefits, helps another. It is clear that in such a context, these concepts are interconnected in such a way that a service useful to another is a special case ( reverse side) work. If we are talking about contractual works and services, that is, those that are produced and rendered for other persons - customers, then, according to M.I. unpromising. The fact is that from the point of view of the service provider, the corresponding action is a "work", and for the service recipient - a "service". And thus it turns out that any of the terms can be used to characterize the general, original concept. But, nevertheless, in civil law they are applied in different meanings and with different meanings.

The issue of singling out effective, efficient activities involves such a problem: how to separate the result obtained from the service from the result of the work. In general, how to distinguish between services and works? The difference between them is recorded in Roman law.

The difference between them is the following:

The contractor, the person performing the work, is obliged not only to carry out the activities provided for by the agreement of the parties, but also to hand over the material result to the customer.

The service provider performs only certain activities and is not obliged to provide any material result.

The distinction on the basis of this criterion is, indisputably, the only one and is reflected in the Civil Code of the Russian Federation.

On the basis of paragraph 1 of Article 715 of the Civil Code of the Russian Federation, the customer is not entitled to interfere in the activities of the person performing the work, he is interested in a benign result.

The service is reduced to the commission of a series of actions or the implementation of certain activities (clause 1 of article 779 of the Civil Code). There will also be a certain result from the service, but not in the form of a newly created or processed thing. We can talk about the effect of a service that can be perceived, in some cases - observed, but not received as a thing.

Since the operation is important for the customer of the service, he can interfere with the performance of the performer's activities, which is not in the works. The consumer needs the effect of the service. But there are many service contracts in which the failure to achieve the effect does not affect the fulfillment of the obligation (commission, assignment, provision of legal, educational, medical services). Their parties can only wish to achieve an effect, and whether it will be achieved or not - often does not depend on their will. The exception is transportation services, the performance of which is associated with the achievement of a non-materialized effect - the movement of objects or people from one point in space to another.

Services grouped on the basis of the absence of a material result include:

Bank account agreement

services in the field of culture and education,

Trust management of property.

Work is, as a rule, an irreversible or hardly reversible specification. Another thing is that the specification is reversible. The work is characterized by the achievement of a material result, in a reversible specification it actually exists, i.e. formally it is work. However, if its result can easily (quickly) disappear, or even more so the object can return to its original state that existed before processing or manufacturing, then will the operation performed to achieve such a result be a full-fledged work? We are not talking about some random exceptions, casuistry - such are the services of beauty salons, hairdressers, etc. The result of these "works" begins to be destroyed immediately after their production. Therefore, due to the specific "defectiveness" of the result, these operations can be attributed to services. The fundamental criterion that allows some separation of these services is the achievement of an unstable material result. Due to its poor preservation, such activities can be classified as services.

This also includes contracts for the implementation of repair work. Of the two legal signs of work (clause 1 of article 703 of the Civil Code): manufacturing and processing (processing), the latter refers to repairs. The provisions on building contracts (Article 740 - 757 of the Civil Code) apply to the repair of buildings and premises.

Activities for the repair of equipment, household appliances, tools, jewelry can be attributed to the provision of services. The reasoning is about the same as in the case of a reversible specification. In fact, the production of such a repair has a material result, formally it is work, but this result is not compatible and not commensurate with the result of the specification, it is often so insignificant that it is with great difficulty that one can speak of processing or processing. In such a case, these operations may have two legal regimes: one as works, the other as services. Which mode to use depends on the specific operation.

Summing up, we can say that along with "pure services" "so-called services" stand out, since civil law has not developed a clear term for such services - semi-works. In "so-called services" one can see, with rare exceptions, all the properties characteristic of "pure services". Since the material result is unstable when rendering the former, it is typical for them to lack a sign of intangibility, and in some cases, instantaneous consumption.

Contracts for the provision of "so-called services" mediate the maintenance of a certain qualitative state of things, as well as appearance people or animals. The quality level may change, but these services contribute to the preservation or restoration of some average quality. In most cases, its evaluation is subjective, therefore, it is not necessary to speak about the delivery of a finished material result in accordance with the clear requirements of regulatory enactments. Contracts for the provision of such services are common in the consumer sector. All of them are compensated, differ in the above specifics, which do not allow them to be attributed exclusively to works, and are characterized by increased responsibility of the performer.

With the indicated groups of operations-services, one more group can be distinguished. These are services from mixed contracts. Their specific feature: services are provided on the basis of an agreement that includes elements of various agreements, the definition of a mixed agreement is given in paragraph 3 of Article 421 of the Civil Code.

A mixed contract, if there is no statutory prohibition, allows the application to it of the rules governing different kinds(types) of contracts. The scope of legal regulation correlates with the magnitude of the influence of an element or model of a "pure", named contract on a mixed one.

Since the object of the obligation from the mixed contract is one, then it, along with the operation - service, may contain actions related to the transfer of property into ownership ( medical services for prosthetics) or for use. The object of such obligations can be called a complex - an object, and obligations regarding it can simultaneously refer to both obligations for the provision of services and other groups of obligations.

The greater the volume in the object of obligation from the mixed contract is occupied by the service, the easier it is to call the corresponding action - the object of obligation a service.

A specific feature of the services provided from mixed contracts is the possibility of a sustainable materialized result, which follows from the very nature of a mixed contract, since the object of obligations from such contracts may include actions aimed at manufacturing or processing things. The appearance of a materialized result from a mixed contract, under which, among other things, services are provided, does not lead to a mixture of works and services: the finished result here is a consequence of work. If the services performed contributed to its emergence, it nevertheless does not arise directly from the services.

§ 2. Works and services

The concept and types of work. The concept and types of services. The difference between works and services.

1. The concept of "work" (as well as the concept of "service") as an object of civil rights is of a general nature. It includes a variety of actions of the obligated subject:

Manufacture of movable things;

Research work and many, many others.

The works themselves, although they formally constitute an object of rights, represent legal interest participants mainly in the form of the result of these works.

At the same time, the peculiarity of the investigated object of civil rights lies precisely in the fact that the result of the work, as the main and final economic goal customer, is inextricably linked with the process of performing work. The person in whose favor the work is performed acquires the right not only to its result, but also the right to control its implementation.

P. 1, Art. 715 of the Civil Code of the Russian Federation.

This property ("connection" of the result of the work and the process of its execution) distinguishes the execution of work from other objects:

Things that will be made in the future (see, for example, paragraph 2 of article 455 of the Civil Code of the Russian Federation);

Services, of paramount importance in the content of which is not the result, but the process of providing the service.

2. Services in civil law - a vast area of legal relations, also associated with the actions of obligated persons.

But unlike works, services, as a general rule, as the main subject of obligation, do not provide for the materialized (material) result of the contractor's actions transferred to the customer, but directly for the actions of the obligated person (service provider).

Services include, in particular:

communication services, information, Internet access;

medical and veterinary services;

legal, audit, consulting services;

tourist-excursion and hotel services;

cultural and entertainment and sports and health services, etc.

Actions of the obligated service provider:

a) are intangible (intangible) in nature and

b) are closely related to the personality of the service provider.

From the history of civil law

Service agreements, albeit indirectly, affect the personality of a person, and this moment distinguishes service agreements from other agreements of a purely property, negotiable nature.

With these two features (non-material nature and connection with the personality of the service provider), services are fundamentally different from works.

Services as objects of civil rights are divided into two groups:

a) services of an exclusively factual nature and

b) services of an actual and legal (legal-factual) nature.

The first group of services is provided through only the actual actions of the obligated person (performing medical procedures, giving lectures, providing a hotel room, etc.). This group includes: communication services, medical, veterinary, auditing, consulting, information services, training services, tourism services and other similar services.

The second group of services provides for the performance by the service provider of not only actual, but also legal actions. Legal actions are transactions and other actions with legal consequences (for example, representation in court). The service provider provides services not only by its actual actions, but also by the commission of legal acts, as a rule, in the interests of the customer (service recipient).

These services include, in particular:

The service as an object of civil rights, as a general rule, is of a reimbursable, commercial nature.

The difference between works and services

Date of registration: 04/11/2011

Date of registration: 24.10.2011

Date of registration: 30.04.2008

For some "types of activity" work and service are very close.

Date of registration: 04/11/2011

Date of registration: 21.03.2011

New books "Q&A: Legal Consulting"

The subject of the service agreement is the performance of certain actions or the implementation of certain activities (clause 1 of article 779 of the Civil Code of the Russian Federation), which implies that the beneficial effect for the customer is achieved in the very process of providing services. The subject of the work contract is determined not so much by the actions as such, but by their result, the acceptance of which is paid by the customer (clause 1, article 702 of the Civil Code of the Russian Federation). If the result of the work is not achieved by the contractor, the work contract, in contrast to the contract for the provision of services (clause 2 of article 781 of the Civil Code of the Russian Federation), cannot be considered properly executed (clause 2 of article 713, clause 1 of article 755 of the Civil Code of the Russian Federation ). And Art. 703 of the Civil Code of the Russian Federation refers to the subject of a work contract the manufacture of a thing, its processing or the performance of other work with the transfer of its result to the customer. Thus, work performed under a contract must lead either to the creation of a new thing or to the transformation of an existing one, and such changes must be outwardly objectified, that is, have a material form.

This is confirmed and judicial practice. So, for example, in the resolution of April 27, 2010 N 18140/09, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that under a work contract for the customer, first of all, it is important for the contractor to achieve a certain material result; when providing services for a fee, the customer is interested in the activity of the contractor, which does not directly lead to the creation of a material result.

It is noteworthy that the tax legislation similarly distinguishes between works and services (clauses 4, 5, article 38 of the Tax Code of the Russian Federation).

In relation to the contract specified in the question, it is necessary to consider the following. The law lacks a definition of "maintenance" in general and medical equipment in particular. As a rule, in practice, maintenance of any equipment is understood as actions for its inspection, diagnostics, prevention, detection and elimination of minor malfunctions, in other words, such actions that do not lead to either the creation of a new one or the transformation of an existing thing (itself according to the thing itself does not change). In this case, the material result of the work does not arise, respectively, there is nothing to transfer to the customer. In addition, when concluding a work contract, it is necessary to agree on specific types of work performed or describe their result, as well as agree in advance on the timing of the work (Article 708 of the Civil Code of the Russian Federation). The absence of these conditions, named in the law, and therefore essential (clause 1 of article 432 of the Civil Code of the Russian Federation), means that the work contract is not concluded (see also the decision of the Federal Antimonopoly Service North Caucasus District dated September 2, 2010 in case N A01-1840 / 2009). Since equipment malfunctions that occur during its operation cannot be determined in advance, it is not possible to agree on these conditions when concluding a contract. Thus, in this case, we can only talk about the conclusion of an agreement paid provision services (see, for example, the decisions of the Federal Antimonopoly Service of the Volga-Vyatka District of June 25, 2009 in case N A29-6827 / 2008, the Ninth Arbitration Court of Appeal of September 23, 2009 N 09AP-16952 / 2009).

However, under the agreement Maintenance work can also be performed, the result of which can be expressed in material form. In this case, the parties may agree in advance on the list of possible typical faults, the elimination of which requires such work, the scope of such work and the timing of their implementation after the identification of the relevant malfunctions, their price. Strictly speaking, since the implementation of such work is not inevitable based on the above norms, here we can talk about the advance agreement on the terms of transactions (separate contractor agreements) made in the future, the conclusion of which will be carried out by drawing up documents on the identification of relevant malfunctions. Nevertheless, sometimes the courts come to the conclusion about the conclusion of a mixed contract (clause 3 of article 421 of the Civil Code of the Russian Federation), containing elements of a contract and the provision of services (see, for example, the decision of the Second Arbitration Court of Appeal dated October 19, 2009 N 02AP-4437 / 2009).

In any case, it is possible to attribute a particular contract to a work contract, a service contract or a mixed contract only by accurately establishing the actual common will of the parties, knowing the nature of the actions performed by the contractor, determined by the contract (Article 431 of the Civil Code of the Russian Federation). Ultimately, in the event of a dispute, the decision of this issue will depend on the discretion of the court.

Let us note that legal relations under a work contract and a service contract are largely regulated in a similar way. Furthermore, general provisions on the contract and the provisions on domestic contracting are also applied to the contract for the provision of paid services, if this does not contradict Art. 779-782 of the Civil Code of the Russian Federation, as well as the features of the subject of the contract for the provision of services for compensation (Article 783 of the Civil Code of the Russian Federation).

Let's point out some differences.

Firstly, as already noted, the contract involves the transfer of the result of the work to the customer upon completion of their implementation, such a transfer must be certified by an act or other document (clause 2 of article 720 of the Civil Code of the Russian Federation). The provision of services does not require any documentary evidence.

Secondly, if, under a service contract, the law unconditionally establishes the contractor’s right to terminate the contract at any time, subject to full compensation to the customer for losses (Clause 2, Article 782 of the Civil Code of the Russian Federation), then the contractor has the right to refuse to perform the contract only in cases specified by law (clause 6 of article 709, clause 3 of article 716, clause 719, clause 5 of article 743, clause 3 of article 745 of the Civil Code of the Russian Federation) or by agreement (clause 3 of article 450 of the Civil Code of the Russian Federation).

Thirdly, if the contract for the provision of services for a fee, as a general rule (in the absence of an agreement otherwise) must be executed personally by the contractor (Article 780 of the Civil Code of the Russian Federation), in relation to the contract, the law establishes reverse rule: the contractor has the right to involve subcontractors in the performance of work, unless otherwise provided by the contract (Article 706 of the Civil Code of the Russian Federation).

Legal Consulting Service Expert GARANT

Reviewer of the Legal Consulting Service GARANT

Date of registration: 30.04.2008

Date of registration: 01.09.2008

Depends on the purpose. Improving appearance is a service (to society). Getting x amount of hair is work.

Date of registration: 30.04.2008

I consume it in the process. :creepy:

"Tell me, please, what is the activity of clearing vegetation a service or a job?"

"A haircut at the barbershop - a job or a service?"

Date of registration: 30.04.2008

Clearing activity is work, because "in the course of activity" I have nothing to consume. I need a result.

When defining services, the emphasis is on the fact that this is an action that benefits, helps another. It is clear that in such a context, these concepts are interconnected in such a way that a service useful to another is a special case (reverse side) of work. If we are talking about contractual works and services, that is, those that are produced and provided for other persons - customers, then, according to M. I. Braginsky, the difference between the concepts of "work" and "service" is not traced and their very distinction turns out to be largely hopeless. The fact is that from the point of view of the service provider, the corresponding action is a "work", and for the service recipient - a "service". And thus it turns out that any of the terms can be used to characterize the general, original concept. But, nevertheless, in civil law they are used in different meanings and with different meanings.

The difference between them is the following:

- The contractor, the person performing the work, is obliged not only to carry out the activities provided for by the agreement of the parties, but also to hand over the material result to the customer.
- The service provider performs only certain activities and is not obliged to provide any material result.

The distinction on the basis of this criterion is, indisputably, the only one and is reflected in the Civil Code of the Russian Federation.

Services grouped on the basis of the absence of a material result include:

transportation,
transport forwarding,
Bank account agreement
· storage,
· assignment,
commission,
agency,
therapeutic and prophylactic
· medical services,
services in the field of culture and education,
tourist,
audit,
consulting,
information,
veterinary services
· communication services,
Trust management of property.

Contracts for the provision of "so-called services" mediate the maintenance of a certain qualitative state of things, as well as the appearance of people or animals. The quality level may change, but these services contribute to the preservation or restoration of some average quality. In most cases, its evaluation is subjective, therefore, it is not necessary to speak about the delivery of a finished material result in accordance with the clear requirements of regulatory enactments. Contracts for the provision of such services are common in the consumer sector. All of them are compensated, differ in the above specifics, which do not allow them to be attributed exclusively to works, and are characterized by increased responsibility of the performer.

A mixed contract, if there is no legislative prohibition, allows the application to it of the rules governing various types (types) of contracts. The scope of legal regulation correlates with the magnitude of the influence of an element or model of a "pure", named contract on a mixed one.

Since the object of the obligation from the mixed contract is one, then it, along with the operation - service, may contain actions related to the transfer of property into ownership (medical services for prosthetics) or for use. The object of such obligations can be called a complex - an object, and obligations regarding it can simultaneously refer to both obligations for the provision of services and other groups of obligations.

The greater the volume in the object of obligation from the mixed contract is occupied by the service, the easier it is to call the corresponding action - the object of obligation a service.

When reflecting business transactions in accounting and tax accounting, it is necessary to take into account the difference between works and services. It is impossible to neglect the requirement of separate accounting for work performed and services rendered, as this can lead to a distortion of the cost structure in tax accounting. Works with services relate to different types of expenses, the procedure for distinguishing between these types of operations should be described in detail by the accounting policy. The basis for the differentiation of works and services can be taken from the provisions of Art. 38 of the Tax Code of the Russian Federation and Regulations on accounting for income and expenses of an organization (PBU 9/99 and 10/99).

What is the difference between work and service

In paragraph 5 of Art. 38 of the Tax Code of the Russian Federation, the service is characterized as an activity that does not have a result expressed in tangible assets. The results of such activities are fully consumed in the process of providing services. Under the works, in accordance with paragraph 4 of Art. 38 of the Tax Code of the Russian Federation, is understood as the type of activity, after the completion of which a material value is formed. These tangible assets can be used to meet the needs of legal entities or individuals.

From point of view accounting there is no significant difference between services and works. But this is important when comparing accounting and tax accounting data. When systematizing data for tax purposes, it must be taken into account that after the work performed, the customer has property that can be capitalized and put on the balance sheet (which is not typical for services). In Law No. 402-FZ of December 6, 2011 and in national standards accounting, there are no specific criteria for distinguishing between services and works.

The reflection of the costs of services or work in accounting is carried out through accounts 20, 25, 23, 26. Recognition of revenue should be carried out in accounting only after the actual completion of work or after acceptance of the services rendered (clause 13 PBU 9/99), according to a similar principle, and expenses associated with specific services and works, except in cases of simplified accounting, when the company has the right to decide that revenue, and hence expenses, are recognized after payment is received (clause 18 PBU 10/99).

In tax accounting, business entities specializing in the provision of services are not required to allocate the cost of direct costs between the expenses of the current period and a group of services that, as of the reporting date, were not accepted by the customer under the act. Such enterprises can recognize in accounting the entire range of costs (direct and indirect) for services in the current period (clause 2, article 318 of the Tax Code of the Russian Federation).

At the stage of drawing up an agreement between counterparties, the characteristic features of the differentiation of operations for the provision of services or for the performance of work should be taken into account:

either works or services can be specified as the subject of the agreement;

services must be performed only by the person with whom the contract is concluded, work can be delegated to third parties on the basis of a subcontract;

financial guarantees will also be different if the customer refuses to accept the results of the transaction;

when performing work, the contractor can count on the non-interference of the customer in his activities.

What is the difference between work and service: examples

Services that do not have a material expression can be represented by the following types of business transactions:

banking service, which is expressed in making payments and providing information support, but in the end the client does not receive any tangible assets in return;

holding cultural events (excursions, concerts, corporate holidays, etc.), after visiting which participants will not become owners of new property - the result will be “moral” satisfaction;

consulting services - the customer receives information, it does not have a material form, it cannot be put on the balance sheet, it is impossible to determine the useful life, calculate depreciation or transfer it to production.

The difference between works and services is characterized by the fact that after the completion of all necessary steps work, a tangible asset with a formed initial cost appears. It can be put on balance and exploited in normal activities. Work examples:

construction of a building - the result will be the appearance of a new property for the customer, which will be capitalized in accounting as a fixed asset;

software development - there may not be a material form, but the result of the work of programmers can be recognized as an object of intangible assets.