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a legal status, a legal status of the worker, trudopravovoj the status of the medical worker: concept and elements

Realisation of the rights and duties of medical workers in the course of medical aid rendering to their patients constitutes the maintenance of labour activity of the given workers. It allows to draw a conclusion that the specified workers in labour legal relation should possess defined trudopravovym the status including not only a complex of general, but also set of special laws of master and servant, duties and measures of responsibility which can differ by the kinds and the maintenance depending on a post, specialities, qualification and other circumstances.

As realisation of a constitutional law of everyone on health protection and medical aid directly is connected with quality rendered to the patient in the medical organisation of medical aid and depends on execution by medical workers of the labour duties and realisation of laws of master and servant, it is represented extremely actual to open most full the maintenance of concept of a legal status of the medical worker and to consider all complex of features inherent in it, and not only in static, but also in dynamic position.

Thus under static position of a legal status it is offered to understand its maintenance in aspect of legallistic fixing of elements of the given status in the maintenance of norms of the law of master and servant, and as a dynamic condition — its maintenance defined by norms of the law of master and servant with reference to various stages of "life" of labour legal relation, or, in other words, the analysis of elements of this maintenance in the course of occurrence, maintenance, changes, stay and the terminations of corresponding labour legal relation.

As to the name of a legal status of the medical worker it is obviously necessary to specify it. As it is directly connected with stay of the medical worker in labour legal relations with the medical organisation and characterised by a number of differences in comparison not only with the general legal status of the person, but also with the branch status of the worker in our country to call it trudopravovym the status of the medical worker more precisely. The same position the collective of authors Petersburg adheres, for example, to "the Course of the Russian law of master and servant». In their opinion, the fact of occurrence of labour legal relations with the concrete employer means giving to the physical person of the status of the worker, and any worker possesses the certain rights following from its labour function and duties, just and forming in aggregate trudopravovoj the status of the worker [48]. Thus, further the legal status of the medical worker will be called in the present work trudopravovym as the status of the worker.

However before to address to the analysis of the maintenance of concept trudopravovogo the status of the medical worker, it is necessary to stop on consideration of the maintenance of wider or adjacent categories which concepts «a legal status of the subject of law» and «a legal status of the Russian worker» as a whole first of all concern. It, in our opinion, will allow further against that the general, that is inherent in a legal status of the subject of law and the worker as a whole, to reveal and reflect more particularly features, characteristic for trudopravovogo the status of the medical worker.

Before it it is expedient to consider the problem on the maintenance of concept "legal personality" as various authors, defining a legal status of the subject of law only through the rights and duties, actually identify this category with concept of the legal personality.

So, according to M.N.Marchenko, the legal personality is the special legal quality established and recognised as the law or property which allows the person or the organisation to become the subject of law. It the same as and elements constituting it — the legal capacity and capacity, arises, changes or stops precisely by means of norms of the objective right [49].

At this M.N.Marchenko discriminates three principal views of the legal capacity: the general, branch and special. The general legal capacity — ability of any person or the organisation to be the subject of law as that in general. She admits the state for physical persons from the moment of their birth. The branch legal capacity is a legal ability of the person or the organisation to be the subject of this or that branch of law. In each branch of law of a condition of its approach can be neodinakovy. Special franchise — ability of the person to be the participant of the legal relations arising in connection with replacement by it of certain posts (the president, the judge, a member of parliament) or an accessory to certain professional categories of workers (to workers of transport, law enforcement bodies, etc.). Special franchise occurrence, according to M.N.Marchenko, is possible only owing to special conditions [50].

A.B.Vengerov, in turn, characterised the legal personality as concrete volume of competences and duties which the certain subject of legal relations possesses and which it can carry out in concrete legal relation. In its opinion, this category includes, besides, and deliktosposobnuju the characteristic of the subject of legal relation [51].

Have similarly defined V.P.Kazimirchuk's legal personality and T. V.Hudajkina, having included in its maintenance the legal capacity, capacity and deliktosposobnost [52 [53], and also E.B.Hohlov who understands under

The legal personality ability to pravoobladaniju, to fulfilment of legally significant actions and perception of measures of legal responsibility.

In opinion And. V.Mickiewicz, the legal personality though includes three components: along with the legal capacity and capacity the legal status of the subject of law appears in it [54].

A little differently consider the legal personality And. V.Poljakov and E. V.Timoshina. In their understanding it represents ability of the subject to act as the carrier of rights and legal duties and ability personally these rights and duties to carry out (ability to enter legal communications) [55 [56].

Such characteristic of the legal personality pulls together sights of these authors with S.S.Alekseeva's position which considered the legal personality as ability of the person to be the carrier of the legal rights and duties. Thereby it defined the legal personality as set of two basic structural elements which number concern, first, ability of possession belonging to the person the rights and executions of duties (legal capacity) and, secondly, its ability to independent realisation of the rights and duties (capacity). To allocate deliktosposobnost as one more display of the legal personality it did not consider necessary as, in its opinion, concerning the majority of subjects of law deliktosposobnost represents one of the capacity parties, expressing possibility of independent execution of legal obligations. Necessity of its isolation arises only in some cases, for example, when it is a question about deliktosposobnosti minors at the age from 15 till 18 years in

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Civil law.

In our opinion, the given position in bolshej to a measure corresponds to the civil legislation as, opening in item 21 of the Civil code of the Russian Federation [57] (further — GK the Russian Federation) the maintenance of concept of capacity and specifying in possibility to create and execute legal obligations the actions, the legislator has actually provided also possibility to carry out such specific duty, as execution of legal responsibility. At the same time in item 29, 30 and 31 GK the Russian Federation it has admitted possibility of a recognition of the citizen incapacitated, restrictions of its capacity and realisation of its rights and duties by means of guardianship. However concerning sphere of action of the law of master and servant such approach to apply hardly it is possible, at least concerning the worker as it can carry out the pravodeesposobnost exclusively by means of the actions for which it bears also the responsibility proving in a category deliktosposobnosti.

As well as other scientists [58 [59], S.S.Alekseev allocated: the general legal personality understood as ability of the person within the limits of given political and legal system to be by the subject of law in general; the branch legal personality (civil, labour, administrative, etc.), defined by norms of concrete branch of the legislation operating with reference to corresponding person and concretising thereby a circle of legal relations in which this person can participate; the special legal personality,

Considered as ability of the person to be the participant only defined

_ 60 circles of legal relations within the limits of this or that branch of law.

Being based on the resulted positions of some rather authoritative Russian scientists, it is possible to speak about existence of the special legal personality, along with the general and branch. Primenitelno to sphere of labour relations it makes sense to specify applied terminology and to discriminate within the limits of a category of the branch legal personality the universal labour legal personality inherent in each Russian worker, and the special labour legal personality inherent to workers only to a certain professional category.

The similar position is occupied also with E.B.Hohlov discriminating two kinds of the labour legal personality of the worker — the general and special. The special legal personality in its understanding means, that the corresponding person unlike persons with the general legal personality has certain specificity in the ability either to pravoobladaniju, or to fulfilment of legally significant actions or in the deliktosposobnosti. Thus specificity of the labour legal personality of the worker is defined, in its opinion, properties of this subject of law as the person realising the ability to work. From this, that the person can realise it only personally, exclusively personal character as assignments, and alienations of rights following from it and legal obligations follows also. In this plan minor workers, the persons who are not citizens of Russia, civil servants etc. have the special labour legal personality, for example. [60]

It is represented, that «the general legal personality» to use the term in that terminological pair which characterises only obshchepravovoj and a branch legal status of the person more pertinently. Primenitelno only to the branch status in order to avoid terminological uncertainty to use other terminological pair including as it was already specified, categories of the universal and special labour legal personality more expediently. Thus the special labour legal personality, in our opinion, should be considered as inherent in workers only a certain professional category ability to have and carry out the actions those rights and duties which are caused by specificity of their professional work, and also to bear for them responsibility supplementary measures. As to the legal personality of the persons allocated in the labour legislation not on professional, and to an age or sexual sign in order to avoid terminological mess more correctly to call such legal personality the person.

Thus, in the basic plan it is represented quite possible to join E.B.Hohlova's position concerning the branch labour legal personality. However in order to avoid duplication of the terminology characterising the legal personality of medical workers, it is represented to more correct to consider, that as workers they are allocated not with the general, and the universal labour legal personality; acting as subjects of specific professional work, they are allocated also with the special labour legal personality.

With a conclusion about presence at medical workers of the special labour legal personality other authors [61] agree also.

As to the term "status" in the encyclopaedic literature it is defined as «a legal status of the citizen or the legal person» [62]; in turn, the legal status is characterised as set of fundamental laws and the duties defined by the Constitution of the country [63].

In the special legal literature, in particular in the literature on theory of law, there is no one conventional definition of concept of a legal status of the subject of law that speaks the discrimination of authors to designing of the maintenance of this legal category (exist, for example, narrow and wide approaches).

So, the known theorist of the Soviet right and the founder of the theory of socialist labour legal relation N. G.Aleksandrov understood initial base position of the person in a society as a legal status of the subject of law. On the basis of the given position develop, exist, various concrete legal relations of the given person with other subjects [64] change or stop.

Other position M.I.Matuzov allocating as elements of a legal status corresponding rules of law, the legal personality, the general for all citizens rights adheres, to freedom, a duty, and so forth [65] the Given approach to understanding of a legal status it is necessary to consider legitimate interests, citizenship, legal responsibility, legal principles as one of the widest.

At the same time academician J.K.Tolstoy considers, that the legal status of citizens is defined both the legal capacity, and arisen on its basis as a result of approach of the juridical facts provided by the rule of law, rights and the duties forming in the unity of legal relation [66]. The given concept is characterised not by so wide approach to definition of the maintenance of a legal status, rather than previous, and concentrated basically on allocation of the most important, according to the author, legal status elements in which its essence is shown.

Other theorists of the Russian right include its rights and duties, and also all legal bonds in which it sojourns with other subjects of law [67] in the maintenance of a category of a legal status of the person. In this sense the concept "legal status" appears, as quite right approved

A.B.Vengerov, synonymous to concept "legal personality". Distinction between them he saw only that the maintenance of a legal status of the citizen defines a set of the rights which it possesses for the introduction in hypothetical, i.e. Possible legal relation, and the legal personality is a characteristic of competences of the certain subject who has already become by the party of concrete real legal relation.

However hardly it is possible to take this concept for a theoretical basis in the given dissertational research as as it was already marked, the maintenance of concept of the legal personality joins the legal capacity, capacity and deliktosposobnost. At the same time the legal capacity, as is known, means ability to have the right and duties, i.e. Characterises potential possibility pravoobladanija persons. Owing to it the legal personality as it is represented, cannot define competence of the subject in concrete legal relation as that is not promoted at least by one of its elements. A.I.Ivanov [68] adheres to the same point of view also.

At the same time some scientists investigating a legal status of subjects of the law of master and servant, take of other position and identify a legal status with the legal personality which, in their opinion, is characterised fixed for them the legislation the rights and duties, guarantees of these rights and duties, the liability for nonperformance of the duties assigned to them [69].

In our opinion, the given position can be subjected criticism, first of all on the basis of those arguments which have been resulted by us earlier, at the analysis of the maintenance of a position of A.B.Vengerov. In acknowledgement told it is possible to take advantage and statements on S.S.Alekseeva's this theme in which opinion of concept "legal status" and "legal personality" differ inherently though between them there is also a deep dialectic unity (bilateral dependence). In this sense general laws and duties, being legal status elements, develop and carried out on the basis of the legal personality, but remain thus the independent phenomena which, in turn, characterise and open the maintenance of the legal personality [70]. Thereby the concept of a legal status is not identical to any of other concepts characterising certain properties of the subject of law (the legal personality, relative rights and duties, legal guarantees etc.) [71], therefore to include them in legal status structure it is not meaningful.

In connection with the told S.S.Alekseev offered narrow treatment of a legal status of the subject of law in which he underlined, that the concept of a legal status joins not everything, and only constitutional (general) rights and the duties defining the maintenance of the legal personality and integral from person [72 [73]. Many other things adhere to this point of view also modern

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Scientists-jurists.

Such position of narrow understanding of a legal status which in the basic plan is divided also by the author of the present dissertational research, assumes, that basic elements of a legal status of the subject of law considered thus (mainly its rights and a duty) are a basis for occurrence and inclusion in this status of other minor elements, capable to differ depending on pravoponimanija the authors adhering to those or other sights at the given question.

In connection with told expediently to result the point of view And. V.Poljakova and E. V.Timoshinoj, understanding as a legal status of any subject its legal status, which core is constituted by the rights and the duties of the given subject fixed in the legislation of the state. Thus they discriminate the general, special and individual statuses of subjects. The general legal status in the modern states is defined first of all by fundamental laws and duties of the person and the citizen, fixed in the Constitution, and the special legal status allocates the organisations and social a generality. Presence of the rights and duties of these subjects is defined by those purposes and problems for the sake of which they exist or are created. The individual legal status depends both on the general status, and from individual (concrete) rights and duties,

Belonging to the concrete subject [74].

In a certain measure the same approach is characteristic and for definition of the maintenance of concept of a legal status of the worker as subject of the law of master and servant formulated by authors mentioned above «Course of the Russian law of master and servant». Adhering to narrow understanding of a legal status of the subject of law, they specify that the concept of a legal status of the subject of law includes all set only statute laws and duties of the given person by means of which the characteristic of the policy which is carried out by the state concerning the given subject is given. Besides it there are features of the maintenance of the legal status, inherent in the defined

Professional category of persons which allow to reveal specificity of certain group, a kind (class) of subjects of law. In such perusal the concept of a legal status of the subject of law is not identical to any of other concepts characterising certain properties of the subject of law (it

The legal personality, rights belonging to it and duties,

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Legal guarantees etc.).

However unlike And. V.Poljakova and E. V.Timoshinoj authors of "the Course of the Russian law of master and servant» do not recognise possibility of existence of an individual legal status, believing, that individual (concrete) rights and duties of the individual are included into the maintenance of other legal category called by a legal status of the concrete person, inherent in it in concrete legal relations. This position is divided completely also by the author of the present dissertational research

Taking into account the stated judgements it is possible to discriminate obshchepravovoj the status of the person, the person or the citizen, including the basic (fundamental) rights and freedom provided by general mezhdunarodnopravovymi by documents (for example, item 23, 24 General Declarations of human rights, the accepted General Assembly of the United Nations on December, 10th, 1948), and also the Constitution of the Russian Federation, including with reference to sphere of the order the person the abilities to work (item 37 of the Constitution of the Russian Federation).

Given obshchepravovoj (general) status of the person and the citizen belongs to each physical person irrespective of, in what areas of public relations this person realises the ability to work. But along with it it is possible and it is necessary to allocate as well branch trudopravovoj the status of the Russian worker, i.e. The status of the person practically realising the ability to work in the form of dependent work. The structure such branch trudopravovogo the status joins system of universal statute laws of master and servant and duties of the worker which characteristic is presented in the maintenance of item 22 of the Labour code of the Russian Federation [75 [76] (further — TK the Russian Federation). Along with universal branch trudopravovym the status it is necessary to allocate and special trudopravovoj the status of some professional categories of workers. The given status is characterised by that the worker possessing it has specific statute laws of master and servant and duties, or certain withdrawals and-or additions in universal statute laws and duties [77].

If to adhere to such approach, medical workers are necessary for carrying to a category of the workers possessing special trudopravovym the status, as the labour legislation contains the special rules of law regulating labour relations with their participation, as supplementing general provisions of the law of master and servant (for example, item 350 TK the Russian Federation), and ogranivajushchie their action (for example, item 142 TK the Russian Federation).

In understanding trudopravovogo the status of the worker professor O.V.Smirnov adheres to a similar position also. In its opinion, each of groups of subjects of the law of master and servant (the worker, the employer etc.) has the specific status, and in these separate groups it is necessary to discriminate the subjects possessing specific lines and having special base legal status. Therefore depending on degree of a generality and character of the rights and duties two kinds of legal statuses differ: the general and special. The general legal status provides the standard rights and duties while special is a display of the general legal status with reference to intraspecific features of subjects [78] for each kind of subjects.

At the same time in modern understanding of a legal status of the subject of the law of master and servant including a legal status of the worker, are available and a little bit other positions. For example, K.N.Gusov and V.N.Tolkunova under a legal status of the subject of the law of master and servant understood its basic legal status as the given subject, fixed by the labour legislation, and included in its maintenance following elements:

The labour legal personality (labour pravodeesposobnost and deliktosposobnost);

The basic (statute) laws of master and servant and the duties fixed in the legislation;

Legal guarantees (the general and special) these basic laws of master and servant and duties;

The liability of infringement of labour duties provided by the legislation [79].

The wide approach to definition of a legal status of the subject of the law of master and servant can be met now in the literature under the law of master and servant and at other authors. For example, V.V. Fedin considers, that it is necessary to include in the maintenance of a legal status of the subject of the law of master and servant:

— The labour legal personality;

— The basic laws of master and servant, freedom and duties;

— Legitimate interests;

— Legal guarantees of realisation of the basic laws of master and servant, freedom and legitimate interests;

— Responsibility for performance or default of the duties [80]. In the domestic scientific literature such unduly wide understanding

Maintenances of a category of a legal status of subjects of the law of master and servant already was exposed to criticism with whom basically it is necessary to agree [81]. So,

B. M.Lebedev and V.G.Melnikova noticed, that when in a science of the law of master and servant with the maintenance of concept of a legal status connect hardly probable not the most part of categories of the law of master and servant — the legal personality (the legal capacity, capacity, deliktosposobnost), the basic laws of master and servant and duties, legal guarantees and responsibility, — that practically acts in film a question on its realisation and protection by means of the law of master and servant [82]. From themselves we will add, that in this case occurs not so necessary to any science, including a science of the law of master and servant, the excessive multiplication of terminology only bringing uncertainty of its conceptual device.

From this point of view it is represented, that it is not necessary to include in the maintenance of concept of a legal status of the subject of law the elements which are not concerning its statute laws, duties and responsibility, and only previous the last or following of them.

The same sight at the given problem shows and With. P.Mavrin who says that "additional" elements of a legal status actually are or preconditions of acquisition of a legal status arising to its occurrence (for example, the legal capacity, capacity, citizenship) or consequences of realisation of the rights constituting a legal status and duties (for example, legal guarantees) [83].

Thus, it is necessary to understand set as a universal (branch) legal status of the Russian worker statute, i.e. Based directly on the law, the rights and duties and measures of responsibility of the worker who is the party of labour legal relation.

In turn the medical workers which work proceeds in the conditions of action of special rules, possess special trudopravovym the status as which it is offered to understand set based on the law and laws of master and servant inherent only in medical workers, duties and the measures of responsibility realised in the course of occurrence, maintenance, change, stay and the termination of labour legal relations with the medical organisations.

For the fullest explanation of concept «trudopravovoj the status of the medical worker» is obviously necessary to consider concept «the medical worker».

Legal definition of the given concept has appeared in the Russian legislation more recently, after acceptance of the Federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» [84] (further — Bases). In item 54 of operating Fundamentals of legislation of the Russian Federation about health protection of citizens, utv. The law of the Russian Federation from July, 22nd, 1993 № 5487-1 [85], (further — old Bases) actually revealed only the conditions necessary for realisation of medical activity. Presence of the higher or average medical education concerned such conditions, corresponding the diploma, a special rank, the certificate of the expert, and in some cases and the licence.

However, as the corresponding member of the Russian Academy of Medical Science J.D.Sergeev fairly approves, radical restructurings which have occurred in social and economic areas, have demanded realisation at legislative level of an accurate regulation of a medical trade [86]. Quite probably, that this circumstance became one of the inclusion reasons in item 2 of the Bases accepted on November, 21st, 2011, concept definitions «the medical worker».

According to the given definition the medical worker — the physical person who has medical or other education, works in the medical organisation and labour which (official) duties include realisation of medical activity, or the physical person who is the individual businessman who is directly carrying out medical activity. In other words, the medical worker is understood now as two kinds of the subjects having a various legal status: 1) actually medical worker — the subject of the law of master and servant; 2) the medical worker — the subject of civil law, the individual businessman (conditionally speaking, certain «medical kvazirabotnik»).

As the qualifying basis for the medical worker is realisation of medical activity (as a part of the medical organisation or is direct) it is necessary to investigate those conditions which serve as preconditions for realisation of the given activity. According to item 100 of Bases till January, 1st, 2026 persons, which have the right to realisation of medical activity: 1) have received the higher or average medical education in the Russian Federation according to federal state educational standards; 2) have the certificate of the expert. Since January, 1st, 2026 of a condition of buying medical activity vary. According to item 69 of Bases instead of the certificate of the expert the certificate on accreditation will be required.

In the maintenance of the Bases resulted above norms there are certain contradictions. So, in legal definition of concept «the medical worker», containing in item 2 of Bases, as an obligatory sign presence of medical or other formation is specified. The similar norm is present and at item 1 of item 69 of Bases. Unlike it in item 100 of Bases as such sign existence only a medical education is underlined. Despite the fact that what the given norm time, arises a question: in what degree it is possible to use directly legal definition of concept «the medical worker»?

The concept of the medical worker fixed in the general provision of the law is represented, that till January, 1st, 2026, should be used in pravoprimenitelnoj to practice taking into account a special provision priority — mentioned above position of item 100 of Bases about necessity of presence of a medical education.

Actually about the same, and also norms of item 9 of item 82 of the Federal act from December, 29th, 2012 № 273-FZ «norms of item 4 of item 100 of Bases testify To formation in the Russian Federation» [87] (further — the Law on formation), taken in system communication with the subordinate legislation also. According to the norms of Bases resulted above and the Law on formation preparation of medical workers under programs of internship and internship provides acquisition trained necessary for realisation of professional work of level of knowledge, skills, and also the qualification, allowing to occupy certain posts of medical workers.

In conformity with the operating legal regulation fixed in orders of Ministry of Health of Russia [88], the person who has finished training under programs of the higher medical education, should to be trained in addition for reception of the basic and additional speciality in internship or internship. Thus, for realisation of medical activity with the higher medical education it is necessary for persons to possess higher education of certain level (internship or internship), and this obligatory requirement should be considered also at an establishment of the maintenance of concept «the medical worker».

Thus, according to the current legislation the medical worker the person having a medical education can be recognised only.

Since January, 1st, 2026 as it is represented, there will be a necessity to make change in concept «medical activity» (item 10 of item 2 of Bases) as one of signs of reference of the person to the medical worker is realisation of medical activity by it as the labour (official) duties (item 13 of item 2 of Bases). According to the specified point the structure of medical activity includes only that activity which can be carried out only in the presence of a medical education (for example, medical survey, medical aid, medical examination, etc.). According to a number of standard legal acts of [89] persons with nemeditsinskim such activity to carry out have not the right, they only can promote its realisation.

Earlier concerning these persons the legislator had been established the term «the worker of public health services (the worker in public health services sphere)». These persons admitted participating in realisation of medical activity as a part of uniform collective together with medical workers. Them, for example, concerned: matrons, sanitarki, the highly skilled workers who are carrying out service artificial heart and lungs, and other persons without whom in some cases it is impossible to render medical aid properly. (In public health services sphere) it was necessary for workers to carry to workers of public health services and the younger medical personnel for work in public health services establishments it was not required to which presence of the higher or average medical education.

At first sight, activity of persons with nemeditsinskim is similar to activity of the medical worker on a number of signs: work in the medical organisation; work with the patient, the medical documentation or the technical medical equipment; influence of results of activity of the person (direct or indirect) on the patient; necessity of realisation of the activity together with the person having a medical education; performance of similar functions (for example, both the medical assistant-driver of the first help, and the hospital attendant-driver operates the car of the first help carried to a category "In" or "With"; both the doctor-psychiatrist, and the medical psychologist spends sanitary-educational work among patients and their relatives on strengthening of health and preventive maintenance of diseases, propagation of a healthy way of life [90]).

However the given persons do not have right to carry out medical activity which exclusively medical manipulations concern, medical interventions etc. Accordingly, for realisation of professional work by them it is necessary to have not medical, and other (biological, chemical physical, biochemical, biophysical, molekuljarnogeneticheskoe, psychological, etc.) formation, and as the higher, and an average (depending on a post). Though the legal status of the given persons also is similar with trudopravovym the status of the medical worker, however as a whole it has other filling. Presence of formation of a corresponding kind causes possibility of the person to operate definitely according to the received speciality and to bear responsibility for such actions. Therefore differences in the maintenance of legal statuses of persons with various formation are obvious.

Necessity of participation of the given persons with nemeditsinskim in activity on medical aid rendering is clear, as they possess a professional knowledge in various spheres of a life, and without participation of the given experts it would be impossible to render medical aid qualitatively.

In practice regulation by the same standard legal act of the relations connected with uniform features of work as workers of public health services (workers in public health services sphere), not having a medical education, and medical workers is possible. As an example the Decree of the President of the Russian Federation from May, 13th, 1992 № 508 «About supplementary measures on stimulation of work of workers of public health services» [91] can serve that. In it the term «the worker of public health services» is used concerning both categories of the specified persons [92]. The Same terminological approach has been used and in the draught federal law «About electronic medicine» [93] where the term «the medical worker» was applied in the relation not only doctors and the average medical personnel, but also the younger medical personnel. However it is necessary to divide nevertheless these two categories of workers in order to avoid terminological mess and in view of an essential difference in their legal statuses.

It is represented, that the similar terminological illegibility became possible owing to a close connection and interconditionality of work of workers of public health services (workers in public health services sphere), not having a medical education, and work of medical workers [94]. In many cases, apparently from the previous reasonings, these two kinds of work possess a number of the general features. But it is impossible to consider a corresponding illegibility of terminology correct whereas it essentially complicates necessary differentiation in many cases in practice of these two categories of workers (for example, at application of positions of the regulatory legal acts, concerning a payment and leave).

The terminology illegibility interferes also with appropriate understanding both medical workers, and workers of public health services (workers in public health services sphere), not having a medical education, those concrete rights and duties which they possess. So, the Order of Ministry of Health of the Russian Federation from December, 20th, 2012 № 1183н «About the statement of the Nomenclature of posts of medical workers and pharmaceutical workers» [95] to medical workers besides persons with nemeditsinskim (for example, the medical psychologist, the zoologist) carries also the younger medical personnel. In practice in some medical organisations it has led to wrong tariffing of works when work of the younger medical personnel has been equal to work of the average medical personnel and on this basis to both categories of workers the identical wages have been added.

To eliminate mess and to designate accurate conditions for direct realisation of medical activity, the legislator should expand the concept maintenance «medical activity» and to replace it more with the general term, for example «professional work in sphere of rendering of medical aid». In the latter case concerning this activity it would be possible to provide two blocks: activity on direct rendering of medical aid and other medical manipulations and the activity promoting rendering of medical aid. «The medical worker» also it would be necessary to make changes to concept definition, having cleaned from it «other formation». Thus it is expedient to enter concept «the worker of public health services» to whom it is possible to carry all persons promoting rendering of medical aid, but having nemeditsinskoe.

Subparagraph 12 of item 2 of item 14, item 33 item 3, item 3 of item 69 and other norms of Bases allow to allocate two kinds of medical workers:

1) experts with the higher medical education, the past poslevuzovskuju medical preparation and having the certificate of the expert (till January, 1st, 2026) or the certificate on accreditation (after January, 1st, 2026) (further — doctors);

2) experts with an average medical education which have the certificate of the expert (till January, 1st, 2026) or have received the certificate on accreditation (after January, 1st, 2026) (further — the average medical personnel).

Besides, the current legislation regulates relations with participation of the persons which legal status has certain affinity to trudopravovomu to the status of medical workers that demands special research of their legal status. Them, in particular, concern: the person who is engaged in national medicine (healing), the person who has not finished development of the basic educational programs of the higher medical education, the pharmacist, the pharmacist, the privately practicing doctor, and also the medical worker — the individual businessman.

The person who is engaged in national medicine (further — the healer), according to item 2 of item 50 of Bases is obliged to have the corresponding permission which has been given out by enforcement authority of the subject of the Russian Federation in sphere of health protection [96]. Point 1 of item 50 of Bases understands the methods of the improvement which have affirmed as national experience, in which basis as national medicine use of knowledge, abilities and practical skills by an estimation and recovery of health lays. Rendering of services of okkultno-magic character, and also fulfilment of religious practices does not concern national medicine.

In practice healers operate in the status of the person concerning the self-occupied population, i.e. As the subject civil, instead of the law of master and servant. Differently, they are not workers (in narrow sense). However by consideration of a legal status of healers it is not enough to investigate legal grounds of their activity, it is necessary to consider also essence of activity carried out by them. It is connected by that enter into concept of the medical worker not only the persons who have concluded the employment contract, but also individual businessmen (item 13 of item 2 of Bases). Therefore position of healers perfectly and from position of the medical workers concerning individual businessmen, engaged in medical activity. If to compare definition of national medicine to legal definition of medical activity (item 2 of Bases) it is possible to be convinced that employment by national medicine nevertheless is not medical activity in its is formal-literal understanding:

1) the subject of this activity specified in legal definition of national medicine (the estimation and recovery of health), does not coincide with a subject of medical activity (medical aid rendering, carrying out of medical examinations, medical examinations and medical osvidetelstvovany, sanitary-protivoepidemicheskih (preventive) actions and so forth);

2) character of the knowledge necessary for employment by national medicine (national experience), is distinct from those knowledge which are necessary for realisation of medical activity (knowledge in the field of the medical science, got owing to reception of a special professional medical education);

3) the subject who is engaged in national medicine, carries out the activity on the basis of the permission to employment by national medicine, and the individual businessman who is carrying out medical activity, is obliged to have the licence for it.

On that employment by national medicine is not medical activity, specifies also the maintenance of the subordinate legislation. For example, in the List of the works (services) constituting medical activity which is

The appendix to Position about licensing of medical activity (except for the specified activity which is carried out by the medical organisations and other organisations, entering into private system of public health services, in territory of innovative centre "Сколково"), utv. The Governmental order of the Russian Federation from April, 16th, 2012 № 29 1 [97] [98], there are no works (service) which are connected with employment by national medicine.

Thus, on healers trudopravovoj the status of the medical worker does not extend, as they are not engaged in medical activity, and also do not consist in labour relations and have no status of the worker, special in relation to which is trudopravovoj the status of the medical worker.

Let's address now to position of the persons who have not finished development of the basic educational programs of the higher medical education. Relations with their participation are regulated item 5 of item 69 of Bases. Such persons get the status of the medical worker in the presence of following conditions: 1) the conclusion them of the employment contract on performance of work as the average medical worker; 2) development of the basic educational program of the higher medical education on certain specialities or preparation directions in volume of two, three or four courses; 3) passing an examination on the admission

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To medical activity.

If these conditions are not executed, at the persons who have not finished development of the basic educational programs of the higher medical education, are not present trudopravovogo the status of the medical worker.

The pharmacist and the pharmacist are the persons who have got education on a speciality "pharmacy" (it is included into the nomenclature of specialities) and carrying out pharmaceutical, instead of medical activity [99]. Article 2 of Bases contains definition of the pharmaceutical worker, and item 69 opens conditions of realisation of pharmaceutical activity which differ from conditions of realisation of medical activity. Differently, these persons cannot have the status of the medical worker.

On that the medical worker — the individual businessman is not in trudopravovom sense the worker, already it has been specified above. The medical worker — the individual businessman acts first of all as the subject civil-law, instead of labour relations. In the legislation the given category of medical workers can be called differently. So, bases mention the medical worker — the individual businessman (item 11, 13 items 2), and the Federal act from

On November, 15th, 1997 № 143-FZ «About certificates of registration» [100] uses concerning the same person the term «the privately practicing doctor».

Norms of item 2 of Bases, item 2, 23, 25 GK the Russian Federation, the Federal act from August, 8th, 2001 № 129-FZ «About the state registration of legal bodies and individual businessmen» [101] and the Governmental orders of the Russian Federation from

On April, 16th, 2012 № 291 allow to give the legal characteristic to the medical worker — to the individual businessman; it is the person: 1) received the higher and poslevuzovskoe a medical education or an average medical education; 2) having the certificate of the expert — till January, 1st, 2026 (or the certificate on accreditation — after this date) and the licence for realisation of medical activity; 3) registered as the individual businessman; 4) directly engaged in medical activity; 5) possessing the five years' experience of work on a speciality — in the presence of the higher and poslevuzovskogo a medical education, or the three-year experience of work on a speciality — in the presence of an average medical education.

Registration of the medical worker as the individual businessman and licensing of its activity are preconditions of participation of the given person in the relations regulated mainly by norms civil and administrative, instead of the law of master and servant. The participant of labour relations such medical worker can become only in a case when it will represent itself as the employer concerning the personnel. Thus it has the right to hire the given personnel under the employment contract only for maintenance of the medical activity, but not for its realisation.

Really, according to a legal position of the Constitutional Court of the Russian Federation one of licensing conditions to the individual businessman is conformity of its personal data (the formation, special preparation, the experience) to the established requirements so, licence action can extend only on the physical person who has received it [102]. Unlike it licence requirements to the legal body — owing to objective features of its legal nature — carry more the general character not personified in relation to physical persons. In the organisation which are carrying out medical activity, posts of medical workers can be displaced with any physical persons, meeting the established legislation to requirements; accordingly, in licence action the personnel structure of the organisation can repeatedly vary.

The constitutional Court of the Russian Federation especially notices, that presence of similar conditions of reception of the licence for realisation of medical activity by individual businessmen is caused by specificity of this activity and the importance of health of citizens as the constitutional value protected by the state [103]. The right got on the basis of the licence to carry out a certain kind of activity causes the personified character of the licence meaning, that licensed activity always should be carried out only by the licensee. Otherwise, namely by transfer of the right which have arisen owing to the licence for realisation of a concrete kind of activity to other person, the sense of licensing is lost.

Besides, the Constitutional Court of the Russian Federation specifies, that in case of necessity occurrence to use wage labour of medical workers for realisation of medical activity the citizen has the right to found the legal body in the corresponding organisation-legal form and, having received the licence for realisation of medical activity for this legal body to employ demanded quantity of doctors [104].

According to item 11. Items 2 of Bases the individual businessmen who are carrying out medical activity, are equated — with a view of the given law — to the medical organisations. The similar norm was absent in the old

Bases which operated at the moment of decision-making by the Constitutional Court of the Russian Federation. In this connection there is a question: whether means presence of this norm in current Bases of what the individual businessman — the medical worker and the medical organisation are equal now by the legislator as well regarding the powers connected with hiring of medical workers under the employment contract? The answer to this question should be negative.

Even if would not exist resulted above a legal position of the Constitutional Court of the Russian Federation, this new norm all the same could not form the basis that the medical worker — the individual businessman hired as workers of the persons who are carrying out medical activity without the licence. Really, according to nowadays existing system of the Russian legislation the decision of a question on that, can or any activity without the licence cannot be carried out, concerns sphere of the legislation on licensing, instead of to sphere of the legislation on health protection. Before item 15 of old Bases (in red. From December, 2nd, 2000 [105]) provided rules of licensing for the medical organisations. However it has become invalid, as the given questions began to be regulated by the special law [106]. Norm of item 11. The item 2 Bases specify in equating of the individual businessmen who are carrying out medical activity, with the medical organisations only with a view of the legislation on health protection (but not with a view of the legislation on licensing) and, accordingly, does not mean their equating to all essential signs.

All these circumstances give the additional bases for otgranichenija to a category of medical workers — individual businessmen from a category of the medical workers working under the employment contract. The last can carry out the activity only within the limits of the medical organisations.

On the basis of stated it is possible to approve, that the basic criteria otgranichenija categories of the medical workers possessing special trudopravovym the status, from other categories of the persons participating in rendering of medical aid, are that: 1) presence special the higher and corresponding poslevuzovskogo or an average medical education; 2) a conclusion of employment agreement with the employer — the medical organisation or other organisation which has received the licence for realisation of medical activity.

As to actually medical worker possessing special trudopravovym the status it will be the physical person which: 1) has the higher medical and poslevuzovskoe the medical

Formation or average medical education; 2) possesses the certificate of the expert — till January, 1st, 2026 (the certificate on accreditation — after this date); 3) occupies under the employment contract in the medical organisation a post on the received speciality, connected with realisation of medical activity.

Presence in the given definition of such requirement, as realisation by the corresponding person of medical activity, is caused by that the expert — even at presence at it the higher or average professional medical education — can occupy in the medical organisation (at passage of special preparation by it) also others

The posts which have been not connected with medical activity. An example of the similar

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Posts the post of the medical psychologist is, for example. [107]

Such definition can be used only till January, 1st, 2026, i.e. Before coming into force of new conditions of realisation of the medical activity, provided items 69 of Bases in system communication with item 100 of the given Bases. After this date instead of the certificate of the expert the corresponding person should have the certificate on accreditation.

1.3.

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A source: Belokolodova Tatyana Igorevna. MODERN trudopravovoi the status of the medical WORKER And ITS FEATURE. The DISSERTATION on competition of a scientific degree of the master of laws. St.-Petersburg - 2017. 2017

More on topic a legal status, a legal status of the worker, trudopravovoj the status of the medical worker: concept and elements:

  1. § 1.1. The Legal status of the medical worker and the medical organisation
  2. differentiation of legal regulation as the tool of formation special trudopravovogo the status of the medical worker
  3. the Maintenance trudopravovogo the status of the medical worker
  4. Traditional features trudopravovogo the status of the medical worker
  5. modern features trudopravovogo the status of the medical worker
  6. general terms and the bases of occurrence, maintenance, change, stay and the termination trudopravovogo the status of the medical worker
  7. CHAPTER 1. GENERAL CHARACTERISTIC TRUDOPRAVOVOGO of the STATUS of the MEDICAL WORKER
  8. CHAPTER 2. The MAINTENANCE And DYNAMICS TRUDOPRAVOVOGO of the STATUS of the MEDICAL WORKER
  9. CHAPTER 3. TRADITIONAL And MODERN FEATURES TRUDOPRAVOVOGO of the STATUS of the MEDICAL WORKER
  10. Belokolodova Tatyana Igorevna. MODERN trudopravovoi the status of the medical WORKER And ITS FEATURE. The DISSERTATION on competition of a scientific degree of the master of laws. St.-Petersburg, -2017 2017
  11. system of guarantees, encouragements, restrictions and interdictions as elements of a legal status (status) of civil servants of civil department