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the Conclusion

In conclusion of consideration of a right to rest and leave kinds under the Russian law of master and servant it is possible to come to conclusion, that basically objects in view in work are reached.

Summing up the carried out research and generalising its results, it is obviously possible to formulate the following the general both partial conclusions and offers.

Research and the analysis of sources of legal regulation of leave allows to draw a conclusion that at the heart of development of the Russian norms about leave in the end of XIX century, as is known, laid work isolation, other objective circumstances, such as discontent of workers with heavy working conditions and long duration of working hours.

The retrospective analysis of formation and development of the Russian labour legislation about rest shows certain continuity of legal statuses, since the Decree about the eight-hour working day from November, 11th, 1917 and to the present. It was showed, in particular, in stage-by-stage allocation of various kinds of the leave which has reached up to now, and fastening of their legal regulation.

In isolated enough kind of norm about leave have received the fastening in kodifikatsionnyh certificates of the Soviet period, since the Labour Code of RSFSR of 1918. Their further development was reflected in the subsequent codifications of the labour legislation taking into account concrete historical conditions and those problems which faced to the labour legislation. The occurred changes in social and economic sphere in 90th of last century have put in pawn the beginning of formation modern Russian the labour legislation. Cardinal reforming of the specified norms occurred according to the Constitution of the Russian Federation and according to the conventional principles and international treaties (to conventions the SQUANDERER), as a result of norm about leave have been embodied in separate section accepted TK the Russian Federation and its further changes.

Studying and the analysis of the modern Russian legislation on a right to rest allows to establish, that the granted right is fixed on international, constitutional and branch legislative levels. In work the right to rest is considered as a principle and as a fundamental law of the worker.

At level of the Constitution of the Russian Federation (items 37) are fixed a principle of a right to rest and other principles acting as a basis for application of work of workers, including an establishment and realisation of a right to rest and leave kinds.

From a parity and interrelation of the branch principles formulated according to the constitutional principles as higher level (ch. 5 items 37 of the Constitution of the Russian Federation) and according to the conventional principles

And to the international certificates the place of a principle of a right to rest along with other branch principles fixed in item 2 TK the Russian Federation comes to light. They, from the point of view of the maintenance, express the rights and guarantees, including on the rest, underlying the corresponding right of the worker (ch. 1 items 21 TK the Russian Federation). The considered principle and the specified right reveal, being embodied in norms of section V TK the Russian Federation, the devoted leave.

The right of the worker to rest enters into it trudopravovoj the status, along with other fundamental laws and duties in which basis corresponding principles of the law of master and servant are put in pawn and simultaneously acts as an element of the constitutional status of the person.

It concerns social rights and is the right subjective, directed on rest of the worker as the social blessing, and assumes competence to make certain actions and to demand corresponding actions from other persons with using delimitation by this blessing which can be concretised through a category "time" as it objectively, gives in to calculation and allows to normalise labour function, limiting working hours. The right to rest cannot be lost or limited, refusal of this right is not possible, in this connection it is necessary to allocate its personal character which does not suppose right to rest transfer to other person from the worker (legal owner) neither at its will, nor at will of other persons.

And to leave many international certificates (the General Declaration of human rights, United Nations certificates, the International pact about the economic, social and cultural rights, certificates of the International organisation of work, the European social charter, the Charter of social rights and guarantees of citizens of independent states, etc.) which play the important role both in law-making, and in application of norms of the national law in the specified sphere are devoted a right to rest.

In the specified international certificates the right to rest which, as well as at in-Russian level, acts in unity of two displays as a principle and directly right in which basis the specified principle lays is defined. Most brightly it is shown in the European Social Charter (ch. 1 items 2 and ch. 2 items 2 of subitem 1-5).

The special role of the ratified Conventions the SQUANDERER in the field of leave is allocated: № 14 about weekly rest at the industrial enterprises (1921); № 106 about weekly rest in trade and the establishments, added with the Recommendation № 103 (1957); № 132 about paid holidays (reviewed in 1970) and others.

At the same time, considering separation of norms in the field of working hours and leave, it is represented expedient to support opinion of other researchers on necessity of the coordination in frameworks the SQUANDERER of the universal certificate about leave.

The analysis carried out in work allows to establish, that norms of the labour legislation, including TK the Russian Federations about a right to rest and leave, as a whole correspond to positions of the international certificates (except for some moments), in some cases establish more favorable conditions to workers (for example, duration of weekly continuous rest not less than 42 hours in TK the Russian Federation (item 110) against 24 hours per Conventions the SQUANDERER № 14 and № 106).

Studying and the analysis of lawsuits in sphere of labour relations show, that in the Russian justice at formation of decisions by vessels positions of the Constitution of the Russian Federation and korrespondirujushchie to it the conventional principles, norms of international law, international treaties of the Russian Federation, including the Conventions the SQUANDERER ratified by the Russian Federation are frequently applied.

At the same time in judiciary practice frequent cases of application ch are revealed. 1 items 9 of the Convention the SQUANDERER № 132 źAbout paid holidays (reviewed in 1970)╗ according to which the worker is obliged to use days of holiday over two weeks within 18 months upon termination of a year for which they are added. In this connection courts at application of the specified norms frequently recognise that under requirements about indemnification of not used holidays claim term constitutes 21 month (18 months + three months) after the termination of year for which leave was granted. While (ч.1 item 127 TK the Russian Federations) are established by the Russian labour legislation other more favorable conditions of indemnification to the worker for not used holidays at dismissal and the specified conventional norm should not be applied according to item 8 of item 19 of the Charter the SQUANDERER and the item 1 named Convention, establishing application of the national (Russian) legislation in cases if it defines more favorable working conditions to workers, rather than specified

In conventional norms the SQUANDERER. Supporting the proved offers of scientific community in the field of the law of master and servant, from its part consider expedient in corresponding explanation of the Supreme Court of the Russian Federation to give specification of an order of application ch. 1 items 127 TK the Russian Federation according to which at dismissal monetary indemnification for all not used holidays is paid to the worker.

The modern legislative approach to a legal regulation of leave is characterised by legal fastening of its concept, according to which this time during which the worker is free from execution of labour duties and which it can use at own discretion. From the given definition the characteristic lines of leave having legal effect follow, consisting in possibility otgranichenija leave from źother periods of clearing of the worker from performance of labour duties╗ which are not in essence leave and are characterised by the special purposes for which it is given (in particular, time of invalidity of the worker, etc.) Together with it, also "other" periods which cannot be carried to leave also are allocated, as well as to define their special-purpose designation (for example, time of a prorumble of the worker owing to such reasonable excuses, as faults in the transport work, connected with weather conditions, or a first aid call to the ill member of a family etc.). For correct application in practice of the named periods of time it is expedient to define them as źnon-working (vnerabochee) time╗ which cannot be carried to leave or to working hours.

Research daily (mezhdusmennogo) rest shows,

That now there is no its legal definition, and a regulation of duration daily (mezhdusmennogo) rest is defined

According to Decision SNK the USSR źAbout working hours and leave in the enterprises and the establishments passing for continuous industrial week╗, accepted in 1929 which and nowadays has not become invalid though it is not used in pravoprimenitelnoj to practice. The specified decision, obviously, it is possible to carry to the inefficient norms requiring a recognition become invalid. Thereupon, considering value daily (mezhdusmennogo) rest, it is offered to bring in TK the Russian Federation its definition in the following edition: źdaily (mezhdusmennyj) rest is the period of free time from the work, coming upon termination of the working day (change) which duration prior to the beginning of a next working day (change) cannot be less double duration of an operating time in the working day (change) previous rest, taking into account a break for rest and food intake╗.

As a result of the analysis of the norms devoted to holidays as a kind of leave, it is possible to draw a conclusion that the period of time previous a holiday (after the working day (change)) and to the following it is direct behind it (prior to the beginning of a next working day (change)), it is not regulated as źa leave kind╗ like established for the days off at which the specified period of time joins in weekly continuous rest and concerns its legal regime. Proceeding from it it is offered to carry the considered period of time to daily (mezhdusmennomu to rest).

As is known, in the law of master and servant there is a general concept of holidays which are subdivided into non-working holidays and holidays. Holidays which do not release workers from work and by that do not give to them leave, have the important special-purpose designation. They raise prestige of trades and specialities of workers, branches in this connection standard fastening in the legislation of the Russian Federation of the specified holidays is estimated positively.

Holidays as a special kind of leave are characterised, first, by the lines allocated for leave as a whole, secondly, with discriminating signs of the holiday, allowing to delimit it from other kinds of leave. Proceeding from it as leave should carry annual basic paid holiday, the annual additional paid holiday, some holidays to holidays without preservation of wages which are not target.

For annual basic paid holiday the lines inherent in all kinds of leave as a whole are characteristic: this time, free from work, the worker disposes of it at own discretion. To the discriminating signs delimiting it from other kinds of leave, it is possible to carry the following: holiday granting to all workers irrespective of a place and a kind of work, other features of work; the duration of annual paid holiday established by the federal act on the bottom border, constituting 28 calendar days, and an interdiction of decrease in the specified holiday; guarantees of preservation of a place of work (post) by granting of holiday and average earnings in the cases established by the federal act; granting of holiday to workers after a certain operating time at the given employer (the experience of work for holiday); Payment of indemnification for not used annual paid holiday at dismissal from a place of work and in other cases provided by the federal act; possible division of annual paid holiday into parts in a statutory order.

Proceeding from characteristic lines and holiday signs, supporting a position

O.S.Hohrjakovoj, it is possible to define, that holiday for rest is a certain number of free days from work (besides celebratory days off), given to the worker for continuous rest and restoration of working capacity with preservation of a place of work (post), in statutory cases and average wages.

Legal regulation of holiday with the subsequent dismissal differs from general provisions about annual paid holiday. In particular, the priority of monetary indemnification before granting of such holiday (for holiday granting there should be a request of the worker and the consent of the employer) is defined; during holiday for the worker the place works (post) does not remain; holiday is not enlarged for number of days of illness.

Annual additional paid holiday the granting bases distinguish from annual paid holiday, a special-purpose designation, etc.

Allocating unsystematic character of granting of additional holidays, it is obviously necessary to spend in the given area ordering within the limits of TK the Russian Federation, in particular to include the corresponding chapter devoted to these holidays, in section V TK the Russian Federation.

Differentiation of additional holidays can be spent on the various bases: on categories of workers to which they are given;

On periodicity of granting; on the mechanism of fastening of the right to holiday and its realisation, etc.

The minimum duration of annual additional paid holiday to the workers occupied on works with harmful and (or) dangerous working conditions, is concretised in the law and constitutes seven calendar days, and duration of additional holiday to the concrete worker is established by the employment contract on the basis of the branch (interbranch) agreement and the collective agreement taking into account results of a special estimation of working conditions. Granting to the worker of longer holiday depends on a number of conditions: additional holiday more than seven calendar days, should be fixed in the branch (interbranch) agreement and the collective agreement, taking into account results of a special estimation of working conditions, that is additional holiday should correspond with degree of harmful working conditions or reference of working conditions to the dangerous. But at the employer at whom the collective agreement is not concluded or the agreement does not operate, the worker will receive additional holiday of the minimum duration, that is seven calendar days. Thus absence of a special estimation of working conditions which the employer does not spend to infringement of the duty assigned to it, as well as absence of the branch (interbranch) agreement and the collective agreement, are not the basis for refusal in granting of the specified holiday. At the same time some categories of workers cannot initially have the right to the given appearance of annual additional paid holiday (home-workers, remote workers, the workers who have concluded the employment contract with the physical person, not being individual businessman) as the law excludes their working conditions from the specified estimation.

At the analysis of an order of granting of annual additional paid holiday to workers with nenormirovannym in the afternoon the conclusion that in conditions nenormirovannogo the working day the workers which posts are established by the collective agreement or rules of the internal labour schedule are occupied is drawn. In cases when the employer does not have such fastening of posts and thus the mode nenormirovannogo the working day, confirmed with other documents from which follows remains, that the worker works in conditions nenormirovannogo the working day, workers also have the right to the additional holiday established by item 119 TK the Russian Federation.

All annual additional paid holidays also possess the lines inherent to leave as a whole. To the discriminating signs delimiting them from other kinds of leave, the following is carried: the specified holiday is given to separate categories of workers, depending on the bases established by the federal act (item 116 TK the Russian Federation); preservation of a place of work (post) and average earnings for time of granting of such holiday is guaranteed; the given holiday has compensatory character, that is it is given as indemnification in cases and an order, statutory; for some categories of workers additional paid holiday is guaranteed by the law, for others can be established by the employer, the legal regime of these holidays differs; their minimum duration is defined by the federal act, other legal acts of the Russian Federation.

JUrist, 2004. With. 264. (The author of the head

WITH. 546.

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A source: Bondarenko Anna Vladimirovna n. and leave kinds under the Russian law of master and servant. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow - 2016. 2016

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