Invalidity of the employment contract: Review from the perspective of the mechanism of exercising subjective rights and obligations of the employee and the employer

Abstract

The article raises the problem of the necessity and expediency of the reception into the labor legislation of the Russian Federation a civil law construction of invalidity of the transaction, evaluates the experience of the EEC member states in implementing the legal regulation of the invalidity of the employment contract on certain grounds. The article contains a conclusion not only about inexpediency, but also about the impossibility of enshrining norms on the invalidity of the employment contract in the Labor Code of the Russian Federation; the legislator has developed adequate ways and means to overcome defects of form, content and subject composition of labor legal relations. Vulnerability of the subject composition of an employment contract, defect in the content of the employment contract and its form does not entail the recognition of this contract and arisen employment legal relations as null and void. Flaw in the will of the parties to labor legal relations in the process of its emergence, change and termination should be subject to legal regulation in the Labor Code of the Russian Federation: it seems necessary to establish rules about the ratio of will and expression of will; about understanding will and expression of will as a single complex process. Establishment in the law of the factors that have influenced the process of evolution of will and deformed it is necessary only in the case of vicious development of a particular model of exercising subjective rights and/or performance of duties. Such factors include: pretence, sham labor legal relations, delusion, deception of one of the parties to the labor legal relations, bondage of labor legal relations, threat from the employer. The article makes proposals for the adjustment of the norms of the current labor law.