Will in the mechanism of the exercise of subjective rights and duties of the employee and the employer

Abstract

The mechanism for implementing subjective rights and obligations of the employee and employer directly depends on a well-developed theory of labor legal relations, in which the will is a central, constitutive element of its composition. However, until recently there have been no serious doctrinal studies of the volitional aspect of labor legal relations, and the courts in their decisions mislead parties, providing employees with virtually unlimited opportunities to implement the opportunities provided by the labor legislation, and ignoring the interests of counterparties. At the same time, the mechanism for realizing subjective rights and fulfillment of obligations should be universal; it cannot depend on good or bad faith conduct of an employee or employer or on broad judicial discretion. The article gives the author’s understanding of the volitional aspect of labor legal relations, identifies its characteristics and stages of formation; points out that for the labor law are significant legal consequences that arise or may arise in the implementation of volitional behavior of the subjects of labor legal relations. The study of the problem of the relationship between will and expression of will led to the conclusion that the courts should assess the will of the person, but the courts often, when considering and resolving labor disputes, intrude into the formation of the will of one or another party to labor legal relations. To suppress employee’s unfair behavior, I believe it is necessary to fix in the legislation the rule that the implementation of guarantees provided to the employee at the termination of his employment contract is possible when he informs the employer about his special legal status in due time. Abuse of right in the form of concealing legally significant information is unacceptable. The article makes other proposals aimed at the adjustment of the current legislation and improvement of judicial enforcement.