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Introduction

Urgency of a theme of scientific research. In the conditions of astable and quickly developing economy, constant change and technics and manufacture complication, necessity for increase of requirements to a skill level of workers, their conformity to qualifying requirements arises introduction of digital technology.

As the President of the Russian Federation in the Message to Federal assembly of the Russian Federation which has taken place on December, 4th, 2014 has noted, «the most base condition of development of economy is, of course, vysokopodgotovlennyj and the qualified worker a class» [1].

The problem of definition of qualification of workers takes the important place in professional selection of shots. Its decision depends on set of factors, including a condition of a national economy, system of vocational training, requirements of a labour market, etc.

As it is marked in the program of social reforms [2] in the Russian Federation, one of the main tasks in sphere of work and labour relations is creation of economic and social conditions for substantial increase of productivity of work, labour activity, development of enterprise and the business initiative, and also introduction of reliable mechanisms of observance by the organisations of all patterns of ownership of the legal guarantees given to workers of wage labour. The decision of these problems can be reached by perfection of systems and methods of a management and the management of the personnel fullest of use of professional and creative potential of workers, the rational organisation of their work and increase of its efficiency, and also competence, discipline, insistence. Thus for overcoming of the crisis phenomena, formation and effective functioning of a market mechanism the maximum mobilisation of reserves of economic growth, actuating organizatsionnoekonomicheskih and is social-psychological factors, observance of principles of correct selection, arrangement and use of shots on the basis of an establishment and observance of qualifying requirements to them, accurate distribution of duties of workers, increase of level of their professionalism and responsibility of everyone for the charged business is required.

Influence of innovations on development of human potential becomes the leading mechanism which changes quality of professional work in modern conditions.

In the conditions of the economy based on knowledge, formation has continuous character and does not come to an end with acceptance for work as knowledge quickly becomes outdated, and qualifying requirements constantly grow. Thereupon rather actual the question on the coordination necessary kompetentsy workers of concrete specialities and the trades, demanding a various educational level and qualification, with existing system of standardization of professional work and educational preparation is represented.

The professional standard becomes the tool which carries out functions of the coordination of a supply and demand on a labour through a conformity establishment between system of a professional training on the basis of educational standards and sphere of their use on the basis of an establishment professionalnokvalifikatsionnyh requirements.

In this connection the aggravated competitive struggle on a labour market is rather actual last years. The one who under equal conditions is recognised, following the results of an estimation of professional level of the workers wins, the most qualified.

These purposes pursue estimated procedures, the basic which is certification - one of the major components of a control system shots. [3]

Certification should promote the proved estimation of business and personal qualities of the worker, to lead to increase of professionalism, business activity of workers of the organisations of all organisation-legal forms and patterns of ownership. [4]

Necessity of carrying out of personnel certification is provided by the Labour code of the Russian Federation (further - TK the Russian Federation) in variety of cases, however TK the Russian Federation does not contain any norms, concerning the order of carrying out of certification or at least its basic principles that causes certain difficulties at its carrying out and quite often involves infringement of laws of master and servant of workers.

Along with certification now there is actual a problem of an independent estimation of qualification of the workers, spent not employers, and the foreign organisations. It is caused, first of all, by complexity of an estimation of qualification of workers directly in the organisation in connection with complication of labour functions and the used equipment, increase of integrated approach of technological processes.

At the same time the relations connected with an independent estimation of qualification of workers have not received a due legal regulation that causes certain complexities at its application.

All above-stated allows to draw a conclusion that the work theme is rather actual not only in theoretical, but also in the practical plan.

Degree of a scientific readiness of a theme of research.

Questions of legal regulation of personnel certification are investigated by scientists in the legal literature throughout enough long time. They were considered basically in works of representatives of a science of the law of master and servant, and also the scientists specialising in area of personnel office-work, economy of work, science and education, in particular, M.V.Dedjuevoj, A.P.Zhirova, N.V.Zakaljuzhnoj, O.B.Zajtsevoj, Z.A.Kondratevoj, A.M.Kurennogo, V.I.Kurilova, L.I.Lazor, A.A.Mazurova, A.S.Matalina, H.T.Meleshko, A.F.Nurtdinovoj, JU.P.Oryol, V.A.Pashieva, J.N.poletaeva, A.Tatarinov, G.V.Hnykina, L.A.Chikanovoj, etc.

Separate questions of an estimation of qualification find reflexion in periodicals. A number of dissertational works, including N.V.Zakaljuzhnoj on a theme «Organizatsionnopravovye forms of definition of qualification», 2006 Last work devoted to the given problem is devoted personnel certification problems, G.G.Chochua in 2010 on a theme «Legal problems of personnel certification in the conditions of a labour market», i.e. more 7 years ago has been presented. For this time serious changes have been made to the legislation on work, including regarding a concerning estimation of qualification of workers. The independent estimation of qualification that has caused necessity of the analysis of legal regulation and practice of carrying out of certification and an independent estimation of qualification with a view of revealing of their parity is provided.

Besides, in the Russian Federation, since 2016, professional standards that demands their judgement from the point of view of an estimation of qualification of workers take root.

Object and object of research. As object of research public relations in sphere of carrying out of personnel certification for the purpose of a conformity establishment to their posts, and also carrying out of an independent estimation of qualification act. An object of research are the rules of law fixed in standard legal acts, carrying out of the personnel certification establishing an order, an independent estimation of qualification, and also certificates of courts of justice.

The purpose of dissertational research is development of the scientific approach to definition of legal essence of certification without which definition legislation development in considered sphere is impossible, revealing of the signs distinguishing certification from other ways of definition of professional level of workers, including from an independent estimation of qualification, a trial period, election on competition. The analysis of theoretical and practical questions of carrying out of certification, revealing of blanks in its legal regulation and working out of offers on perfection of the legislation regulating the relations, the qualifications of the worker connected with an estimation and conformity definition to its qualifying requirements and professional standards.

Realisation of objects in view of research has caused necessity of performance of following problems:

- To analyse the regulatory legal acts regulating certification; to define the basic elements constituting its maintenance and to formulate concept "personnel certification";

- On the basis of the analysis of concepts «qualification of workers», "competence" and "competence" to establish their parity from the point of view of the general and especial in the maintenance of these concepts;

- To define concept «the professional standard», to reveal a parity of requirements of "the professional standard» with the requirements established by tarifno-qualifying directories of posts and trades;

- To allocate main principles of legal regulation of personnel certification;

- To specify a circle of persons, subjects and certification subjects;

- To offer classification of kinds of certification, proceeding from its basic purpose;

- To analyse practice of carrying out of certification, including judicial, and to develop offers on perfection of legal regulation of certification;

- On the basis of the analysis of legal regulation and practice of application of an independent estimation of qualification to define its difference from certification, and also legal force of the decision made by it.

Methodological basis of research. Application of a dialectic method of knowledge promotes integration of available knowledge of concept, the maintenance, kinds and an order of carrying out of personnel certification. In dissertational research the author leans against the modern methods of knowledge developed by a philosophical science and approved by legal practice. First of all, the general methods of scientific knowledge are applied: the analysis, synthesis, an induction, deduction. Are used is formal-logic, historical, rather-legal and some other methods.

As empirical basis of research data about practice of application of rules of law, and also the information on features of the legal relations regulated by them, published in special researches and a network the Internet have served.

Standard base of research are regulatory legal acts of various levels of the legal system: the Constitution of the Russian Federation, the federal legislation, the subordinate legislation, local certificates of employers.

The teoretiko-legal basis of research was constituted by works of many representatives of a science of the law of master and servant of different generations, and also the scientists specialising in area of personnel office-work, economy of work, science and education.

Judiciary practice is widely investigated. In quality normativnopravovoj research bases are used the international standards of work, the Russian regulatory legal acts, and also operating earlier standard materials of the USSR and RSFSR.

The author of dissertation used N.G.Aleksandrova, L.J.Bugrova, V.A.Glozmana, S.J.Golovinoj, M.V.Dedjuevoj, A.P.Zhirova, N.V.Zakaljuzhnoj, O.B.Zajtsevoj, S.A.Ivanov, S.S.Karinsky, Z.A.Kondratevoj, A.M.Kurennogo, V.I.Kurilova, L.I.Lazor, R.Z.Livshits, A.A.Mazurova, A.S.Matalina, H.T.Meleshko's works, F.P. To the Negro, A.F.Nurtdinovoj, JU.P.Oryol, A.S.Pashkov, V.A.Pashieva, J.N.poletaeva, A.Tatarinov, K.P.Urzhinsky, N.S.Urzhinsky, G.V.Hnykina, E.B.Hohlova, L.A.Chikanovoj and other scientists.

Scientific novelty of work consists that in it the legal essence of certification as the special procedure directed on the proved impartial assessment of vocational, business, personal qualities of the worker and an establishment of conformity to its post, and also stimulation to increase of the professional level is defined. In work questions on a parity of certification and an independent estimation of qualification for the first time are put and investigated. Attempt to define the legal nature of an independent estimation of the qualification which are carried out by specially created organisations is undertaken. The conclusion that relations of the employer, the worker and the organisation which are carrying out an independent estimation of qualification, are beyond the relations regulated by the labour legislation is drawn. As a matter of fact it is relations on rendering of the services given on a paid basis which should be regulated by norms of civil law. Considering, that conclusions of an independent estimation of qualification can influence occurrence and the termination of labour relations, it is offered to define legal force of the decisions which are taken out as a result of carrying out of an independent estimation of qualification at legislative level. In TK the Russian Federation to fix a rule about compulsion for the employer of such estimation in case the estimation was made under its initiative. Variants of the decisions accepted by a certifying commission and body, carrying out an independent estimation of qualification, their parity from the point of view of compulsion for the employer are offered.

The offer on possibility of expansion of a subject of the law of master and servant at the expense of inclusion in it of the relations arising between the employer and the worker (the person searching for work) concerning a direction of the worker on an independent estimation of qualification is proved.

The positions which are taken out on protection. The carried out research has allowed to formulate and prove the following theoretical and practical positions which are taken out on protection:

1. On the basis of the analysis of concepts "competence", "competence" and the "qualification", applied in the regulatory legal acts regulating the relations, the qualifications of workers connected with definition, it is established, that under the maintenance they do not coincide. In this connection it is offered in the legal acts devoted to personnel certification, to refuse use of such categories, as "competence" and "competence" as, their use at the decision of a question on conformity of workers to qualifying requirements, along with concept qualification, can lead to the disorder in the legal nomenclature and, as consequence, to infringement of laws of master and servant of workers.

It is necessary to understand degree of mastering as qualification the worker professional skills on the basis of the received theoretical and practical knowledge got as a result of training and an operational experience.

2. Introduction of professional standards as obligatory, along with tarifno-qualifying directories, has entailed a number of the problems connected with definition of conformity of workers, already consisting in labour relations, including the past certification, to the qualifying requirements containing in professional standards. In this connection, it is offered to consider professional standards as typical, having recommendatory character, whether that will give the chance to employers to establish on the basis of these standards corresponding requirements to qualification of workers for realisation of labour function by them taking into account features and requirements of that other field of activity.

3. On the basis of the analysis of the basic elements constituting the maintenance of certification, and the scientific literature its following definition is offered.

Certification is the procedure directed on the proved impartial assessment of vocational, business, personal qualities of the worker and acknowledgement (establishment) of conformity to its post, and also stimulation of the worker to increase of the professional level.

4. As the basic criterion of classification of certification it is offered to define its purpose since aim certification carrying out predetermines both its periodicity, and compulsion of procedure of carrying out which depending on the certification purpose can be different. In this connection legitimacy of the made decision and its consequences depends on correctness of a choice of a kind of certification. Depending on the purpose of carrying out of certification it is offered to allocate: periodic, extraordinary, repeated and single certification.

5. IX TK the Russian Federation «Qualification of the worker, the professional standard, preparation and additional vocational training» to add chapter 31 "General provisions" of section with the position defining concept of certification, its principles, a carrying out and decision-making order.

Are offered variants of the decisions accepted by a certifying commission, their legal force from the point of view of compulsion for the employer. It is necessary to carry to such decisions: there corresponds the certified worker of a post or mismatches. As to recommendations they can be accepted a certifying commission, for example, about possibility of appointment to a corresponding post, the person who do not have special preparation or the experience of work, but possessing sufficient practical experience and the competence, carrying out qualitatively and the official duties in full assigned to it, or about expediency of carrying out of additional vocational training. But such recommendations for the employer should be obligatory. It can consider them, but own decision has the right to make.

6. With a view of increase of guarantees of the rights of workers it is offered to fix in TK the Russian Federation a rule, forbidding to spend periodic certification in carrying out of actions for reduction of number or staff of workers.

7. The analysis of the legislation on an independent estimation of qualification has allowed to reveal the signs distinguishing it from certification, and also the problems connected with its application in practice. Attempt to define the legal nature of an independent estimation of the qualification which are carried out by specially created organisations is undertaken. The conclusion that relations of the employer, the worker and the organisation which are carrying out an independent estimation of qualification, are not the labour relations regulated by the labour legislation is drawn. As a matter of fact it is relations on rendering of the services given on a paid basis which should be regulated by norms of civil law. Considering, that conclusions of an independent estimation of qualification can influence occurrence and the termination of labour relations, it is offered to define legal force of the decisions which are taken out as a result of carrying out of an independent estimation of qualification at legislative level. In the Labour code of the Russian Federation to fix a rule about compulsion for the employer of such estimation in case the estimation was made under its initiative.

8. The independent estimation of qualification can be considered now as the additional tool of an estimation of qualification of the workers, allowing both to the worker, and the employer to address in corresponding body for an establishment of qualification of the worker, including, in case of occurrence of dispute concerning validity of the decision taken out by results of certification.

9. It is offered to provide possibility of passage of an independent estimation of qualification the jobless citizens having the experience of work by a concrete trade, a speciality, but not having the corresponding document on educations (from their consent) in a direction of body of service of employment. It would allow to provide to jobless citizens to have the document confirming qualification that would raise their chance of employment during shorter period of time in comparison with the vocational training provided by article 23 of the Law of the Russian Federation «About population employment in the Russian Federation».

The theoretical and practical importance of research.

In dissertational research the theoretical positions, concerning revealings of discriminating signs of concepts «qualification of workers», "competence" and "competence" have been reflected. The concept of certification is defined, classification of its kinds and difference from other ways of definition of qualification is resulted. The legal nature of the relations arising in connection with passage of an independent estimation of qualification is revealed. The practical importance is defined by that conclusions containing in it and offers on perfection of legal regulation of personnel certification can be used for optimisation normotvorcheskoj activity and pravoprimenitelnoj experts, in educational process, and also by preparation of the educational literature under the law of master and servant.

Approbation of results of research. The dissertation is prepared in a department of the legislation on work and social security of Institute of the legislation and comparative jurisprudence at the Government of the Russian Federation (further - IZiSP). Substantive provisions and conclusions of dissertational research are discussed at sessions of a department of the legislation on work and social security, and also on section of private law of Academic council IZiSP.

Separate positions of the present research have been reflected in publications of the author on a theme dissertational research, including in articles, reviewed scientific magazines from the list of the Higher certifying commission at the Ministry of Education and Science of the Russian Federation, in collections of scientific articles following the results of nauchnoprakticheskih conferences, in typical scientifically-methodical complexes for pedagogical workers and the state and municipal employees, in the scientifically-practical comment to articles 48, 49 Federal acts from December, 29th, 2012 № 273-FZ «About formation in the Russian Federation», and also in anniversary monography IZiSP «the Educational legislation of Russia: a new mark of legal regulation», prepared by employees IZiSP.

Conclusions and offers of dissertational research have been approved at following scientifically-practical conferences: nauchnoprakticheskoj conferences «the Federal act from 29. 12. 2012 № 273-FZ« About formation in the Russian federation »: application practice» (IZiSP, Moscow, 2015); scientifically-practical conference «the Educational legislation: a new mark of legal regulation» (IZiSP, Moscow, 2015); XI annual scientifically-practical conference of students and young scientists under the law of master and servant «Feature of legal regulation of work of separate categories of workers» (NIU "VSHE", Moscow, 2015); XI international school-practical work of young scientific - lawyers (IZiSP, Moscow, 2016); the international scientifically-practical conference «the Law of master and servant, the right of social security and market economy: interaction problems (the Second Gusovsky readings)» (MGJUU of O.E.Kutafina, Moscow, 2016) ; XII international conference of students and young scientists under the law of master and servant «Modern lines of development of the law of master and servant and the social security right» (NIU "VSHE", Moscow, 2017).

The structure of scientific work is caused by the purposes and problems of dissertational research. Dissertational research consists of the introduction, three heads, consolidated in eight paragraphs, the conclusions and the bibliographic list.

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A source: Egoshina Lyubov Aleksandrovna. CERTIFICATION AS the WAY of DEFINITION of QUALIFICATION of WORKERS: PROBLEMS of LEGAL REGULATION And APPLICATION PRACTICE. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2017
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More on topic Introduction:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. INTRODUCTION
  13. Instead of Introduction …
  14. PRACTICAL INTRODUCTION OF RESULTS OF WORK
  15. 5. Attention strengthening to questions of legal introduction.
  16. Introduction