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§ 1.2. Forms and ways of protection of the rights of citizens in social security sphere

The right to social insurance, no less than any other right of the citizen, is effective, when it is provided by possibility of its protection.

Professor I.A.Kostjan obosnovanno specifies, that «publishing the rule of law, the state is obliged to provide necessary guarantees, ways and forms of protection of the rights, freedom and the legitimate interests protected by the accepted

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Norm ».

At the present stage of development of the Russian state especially sharply there is a question on constitutional law protection on social security and rights of concrete citizens entering into it that speaks not only the inflationary processes existing in a national economy, but also inconsistency, dissociation, frequent change of the maintenance of the corresponding legislation of the Russian Federation, presence of conflicts of laws. A consequence of it is absence of the settled decisions in pravoprimenitelnoj to practice, and frequently and its discrepancy. Numerous references of addressees of social payments and services testify to necessity to pay attention to protection of the right of the Russian citizens on social security in various state bodies. For example, in 38093 letters which have arrived only for one 2015 to the Representative under human rights in the Russian Federation, complaints to infringements in the field of social insurance and maintenance have constituted 5 % [40 [41].

Enough works are devoted protection of the rights of the Russian citizens

The scientists-lawyers, many of them "are adhered" to separate branches of law. Thus the various points of view are presented to them on concept «protection of the right of the citizen».

The expert in the field of S.S.Alexey's theory of law has characterised right protection as state-compulsory activity,

Directed on restoration of the broken right, maintenance of execution of the legal obligation [42 [43].

The resulted definition of protection of the right vzaimouvjazano with concept of the legal responsibility, which basic element also is use of the state-compulsory mechanism from the state for restoration of the broken right though, at first sight, their definitions do not give the bases for such statement.

So, V.N.Hropanjuk sees legal responsibility for the offender in application to it of sanctions of the rules of law specified in them of certain measures of responsibility [44 [45]. I.N.Senjakin pays attention that at legal responsibility from an offence there are legal relations between the state in the name of its special bodies and the offender to whom the duty is assigned to undergo corresponding deprivations and adverse consequences for a perfect offence, for infringement of requirements which contain in norms

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The rights.

Definition of protection of the right, offered S.S.Alekseevym, accurate enough, but, at the same time, we believe, that it does not consider that circumstance, that during realisation of rights the obstacles which elimination also gets under concept «right protection» can be created. Besides, it would be desirable to notice, that right protection can be carried out not only by means of state-compulsory activity, but also with public opinion attraction, in particular, by means of trade unions.

In a science of the law of master and servant it was offered to understand as protection of the rights activity on realisation of the measures directed on restoration of the broken right and removal of obstacles to realisation of rights [46 [47].

Such definition is represented to more exact, but in it the kind of the activity directed on protection is not underlined, and is not considered, that before breach of law which should be restored, there is variety of statutory means and the ways providing suppression of infringements of the rights of citizens (for example, caution of the public prosecutor, the statement of the citizen in public authority about protection of the right which can be broken).

A.A.sapphire's definition which speaking about laws of master and servant and legitimate interests of citizens, suggests to understand the lawful activity which maintenance is constituted by realisation of statutory legal ways and the means providing suppression of infringements of laws of master and servant and lawful as their protection is represented to the most comprehensible

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Interests, their restoration or removal of obstacles in realisation.

This definition approaches and to protection of the right to social insurance which often confuse to social protection.

Concept "social protection" - wide enough concept that follows already from ch. 1 items 72 of the Constitution of the Russian Federation. In the scientific literature there are many definitions of social protection [48]. We will stop on most, in our opinion, universal, confirming absence

Identity between protection of the right to social insurance and social protection: these are the measures of protection of citizens provided by norms of various branches of law (the right of social security, labour, ecological, housing, civil, etc.) and realised by means of forms and the ways provided international and

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The national legislation on protection of fundamental laws of citizens.

Right protection, including rights to social insurance, represents one of variants of realisation of the right in rather specific form. Protection is carried out by means of lawful activity of competent bodies, first of all, state or not state (for example, the representative of trade union), directed on restoration of the broken right and removal of obstacles to its realisation. Forms and ways of protection are established by the branch legislation of the Russian Federation (for example, civil, housing, labour and

dr).

Scientists-experts in the field of various branches of law are unanimous in opinion, that protection of the rights of citizens is carried out in certain forms and certain ways. In the Russian legislation of definition of these concepts is not present. Besides in different codes there are inconsistent judgements. For example, ways of protection of the rights and freedom are differently presented to item 352 of the Labour code of the Russian Federation (further - TK the Russian Federation) and item 12 of the Civil code of the Russian Federation (further - GK the Russian Federation).

Let's address to Russian dictionaries. In one of such most widespread dictionaries it is specified, that the form is understood as a way of existence of the maintenance, inseparable from it and serving by its expression; an external outline, a subject exterior; the way is defined as actions or system of the actions, applied at execution what - [49]

nibud works, at realisation something [50].

Apparently, in Russian there are no accurate signs of difference of the form from a way. Moreover, the concept the form reveals with use of a word "way". Obviously one: using a word "way", always we mean any action (an action variant).

Another matter - the special literature where the branch of the mentioned concepts from each other is recognised. As the form of protection the majority of researchers understand a procedure the authorised subject of activity or a complex of internally adjusted organizational actions (actions) on protection of the rights and the interests protected by the law which are carried out within the limits of a uniform legal regime [51].

The form and way of protection inseparably linked with each other.

A.A.Sapfirova fairly notices, that each form of protection consolidates in a single whole concrete, characteristic ways for it and corresponding bodies of protection [52 [53]. It is possible to add the given statement V.P.Kartashovoj's with following statement: «the form and a way of protection form that necessary structure with which help the person who has sustained from breach of law achieves desirable legal result in

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Direction of restoration of the broken right ».

Therefore, in our opinion, the form of protection of the right is a procedure the authorised subject of a way (ways) of protection. Restoration of the broken right or interest protected by the law can be carried out as jurisdiktsionnym by body, and the legal owner. Thereby, the form of protection of the right can be defined as a procedure of a way (ways) of protection of the right and the interest protected by the law, carried out special jurisdiktsionnym body, or the legal owner.

What desirable result probably to achieve in case of right protection? It is possible to consider, that the answer to this question is given in E.I.Petrovoj's work though listed it is named by the author in the ways of protection of the right to social insurance more low. It is a question of restoration of the broken right, suppression of wrongful acts, a certificate recognition normotvorchestva not

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Coming under to application.

In this list there is no right recognition though such orientation of protection in social security is rather extended, especially at refusal in pension appointment. For example, in courts citizens about a recognition of the right to the preschedule insurance old-age pension within the limits of obligatory pension insurance often address.

J.S.Korenevoj under way (order) of realisation of protection of the rights is named its one more orientation - compulsion to discharge of duty of observance and realisation of social rights [54 [55].

It is represented, that "mess" of ways and an orientation (results) of protection of the rights is promoted item 12 GK by the Russian Federation in which by ways of protection of the civil rights are named: a right recognition; restoration of the position existing before breach of law; suppression of the actions outraging or creating threat of its infringement; annulment of the certificate of the state body or local government; the indemnification; penalty; indemnification of moral harm; non-use by court of the certificate of the state body or the local government contradicting the law.

Almost all listed is characteristic and for right to social insurance protection. As examples it is possible to result the following.

So, the decision of Railway regional court of of Krasnoyarsk from October, 28th, 2014, for the doctor-anaesthesiologist recognises the right to appointment of the preschedule old-age pension, the separate periods of work of the claimant are included

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In the special experience.

By the decision of Lenin regional court of of Saransk of Republic Mordovia from October, 31st, 2014 it is recognised by illegal and the decision of chief GU - Management of the Pension fund of the Russian Federation in city district Saransk of Republic Mordovia about nevkljuchenii in the special experience of the separate periods of work of the claimant, holding office medical is cancelled

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Sisters.

On the basis of the statement of claim of the widow of the lost worker the court collects indemnification of moral harm from Joint-Stock Company enterprise «Wood Export» because to the husband istitsy there was an accident on manufacture: by manufacture of works on valke woods it was lost on a workplace [56 [57] [58].

According to item 17 of the Federal act from April, 1st, 1996 № 27 FZ «About the individual (personified) account in system of obligatory pension insurance» [59] from the infringer the penalty can be collected: for non-presentation in target dates necessary for realisation of the individual (personified) account in system of obligatory pension insurance of data or representation by the insurer incomplete and (or) doubtful data on insured persons to such insurer financial sanctions in the form of collecting of 5 % from the sum of insurance premium payments added to payment in the Pension fund of the Russian Federation for last three months of the accounting period for which are not presented to target dates are applied or presented incomplete and (or) doubtful data on insured persons.

The examples listed above testify to a variety of kinds of requirements in which occasion there are disputes in the field of social security.

Let's return to ways of protection of the rights and interests of citizens.

It is represented, that the most correct formulations, from our point of view, contain in M.V.Lushnikovoj and A.M.Lushnikova, T.J.Baryshnikovoj's works [60]. As the generic characteristic of ways of protection of the rights the specified authors name the concrete actions directed on restoration of the broken rights, removal of obstacles to their realisation, satisfaction of interest protected by the law, influence on the offender. In essence the same, but differently, is told by S.S.Sergeevym who characterises ways as financially-legal measures of compulsory character fixed by the law by means of which restoration (recognition) of the broken (challenged) rights and influence on the offender [61] is made.

The stated opinion specified above authors is represented correct and gives the basis to approve, that at comparison of item 12 GK the Russian Federation and item 352 TK the Russian Federation the most exact is TK the Russian Federation. In given article to the basic ways of protection of laws of master and servant and freedom are carried: self-defence; protection by trade unions; the state control (supervision) over legislation observance; judicial protection. As to forms of protection of the rights their division on jurisdiktsionnuju and nejurisdiktsionnuju is standard.

In the scientific literature jurisdiktsionnaja the form is presented as activity of statutory bodies (state bodies,

Public organisations) on protection of the rights and interests protected by the law (a variant - protection of the rights by the bodies state or authorised by the state possessing pravoprimenitelnymi powers) [62]. jurisdiktsionnaja the protection form is peculiar to the social security right, providing possibility of use, among other ways, and the legal process [63].

Under nejurisdiktsionnnoj the protection form application of measures (ways of protection) the authorised subject independently, without the reference to any body is understood. In the law of master and servant nejurisdiktsionnaja the protection form is presented, for example, in the form of self-defence according to item 379 TK the Russian Federation, in civil law - according to item 14 GK the Russian Federation.

Whether self-defence in the social security right is possible? To answer this question, we will consider the given concept.

Right self-defence (in a broad sense) are any actions of the person possessing the right, connected with protection of the granted right against infringement [64]. Self-defence as a way of action of the interested person, it is borrowed from the civil legislation.

According to item 14 GK the Russian Federation self-defence is possible under following conditions:

- The person, the protecting right, should be its indisputable owner;

- The given way of protection should be proportional to infringement;

- Self-defence cannot fall outside the limits the actions necessary for its application.

V.R.Halikov, investigating self-defence questions, has paid attention also to the following:

- Self-defence is possible, as a rule, only after breach of law and only sometimes during breach of law;

- At the moment of realisation of self-defence the citizen cannot address to competent bodies for protection, however, if the reference to them probably it is necessary to recognise that in the circumstances self-defence application is more operative and effective;

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- Self-defence is carried out by forces of the victim.

In our opinion, V.R.Halikova's statement is disputable, that at the moment of self-defence the person cannot address to competent bodies though such statement and is given V.R.Halikovym with the reservation. The citizen has the right to solve itself, whether to select only the granted way of protection of the right, or to use it along with the ways entering in jurisdiktsionnuju the form of protection of the right. It is in addition possible to tell, that concerning a procedure of self-defence the legislation of the Russian Federation of exact instructions does not give, and here cases when it is admissible, establishes, and sometimes enters also conditions of procedural character.

So, in the law of master and servant, «from which bowels» there was a social security right, there is only one kind of self-defence - refusal of performance of labour duties. Conditions of its application - the notice in writing on it of the employer (item 142, 379 TK the Russian Federation).

In the literature devoted to social rights of citizens (which number the right to social insurance concerns also), there is an opinion, that self-defence exists and in the field of social security.

So, T.J.Baryshnikovoj has been stated thought, that self-defence is inherent in body of social security which can apply measures of [65] influences concerning the addressee of payments or services in social security (for example, to cease payment of money resources) [66 [67].

Even if to agree with this opinion it is necessary to tell: to the right of the citizen for social security similar self-defence of the relation has no, as it is a question of diligent performance by the representative on realisation of payment or service by body (in most cases - the state body) the duty, korrespondirujushchej to the right of the citizen.

D.S.rustle for group of social rights defines concept of self-defence as possibility to initiate, supervise and influence process of protection against the beginning and up to the end, co-operating with public authorities. The author notices, that authorities play the important role in the course of realisation of self-defence of social rights of citizens and results examples of self-defence of social rights through bodies legislative, executive and the judicial authority, and also bodies

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Local government.

As D.S.rustle connects self-defence with activity legislative, executive, courts of justice, resulting examples of ways of protection of the social rights having jurisdiktsionnuju (legal) form, it is represented, that he talks about connection together various ways of protection of the rights: self-defence after all is carried out by forces of the citizen without use of a resource of competent bodies.

In essence about the same merge of various ways spoke also E.A.Midonova, investigating forms of protection of interests in the social security right. It allocates the individual form of protection of interests and characteristic way of such protection names self-defence, specifying, that it is especially widely shown in a provision of pensions if to consider,

What exactly self-defence initiates practically all existing

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Variants of protection of legitimate interests.

E.A.Midonova divides forms of protection of the right to social insurance on legal (protection judicially or administratively) and not legal form of protection depending on what bodies (organisations) have fixed in standard (legal or other) the certificate the right (duty) of protection of the rights and legitimate interests of citizens to reception of the established social security. Thus the author fairly specifies, that not legal form of protection has no accurate procedural forms and can be carried out by negotiations or public organisation references in state bodies,

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Making decisions on purpose to protect the rights and interests of citizens.

In all those cases when the reference of the citizen in the state or public bodies (organisations) initiates (gives effect) to a legal mechanism of protection of the rights of the Russian citizens that happens often enough, there is a basis to speak about the joint (mixed) application jurisdiktsionnoj and nejurisdiktsionnoj forms of protection of the rights. For example, it often happens at the reference of the citizen behind the help in trade-union body, and last prosecutes its case at a legal investigation in court.

As an example we will result the affairs considered by Severodvinsk city court. In the first case the claimant asked court to solve in its advantage a question on inclusion in the special insurance experience the finding periods at courses of improvement of qualification, and also holiday on care of the child to 3х years from October, 6th, till August, 12th, 1994 Body of a provision of pensions in Severodvinsk to the claimant in it it has been given up, the listed periods have not been included in the special insurance experience of the applicant in this connection it lost the right to the preschedule old-age pension. It as [68 [69] representative in court the chairman of the Severodvinsk city organisation of trade union of workers of national education and a science of the Russian Federation has acted, which smog to put legal arguments in favour of the claimant. The Severodvinsk city court has made the positive decision for the claimant. In other case the representative of the trade union participating in litigation, has rendered legal aid to the teacher of the physical training which has addressed in court with the claim about inclusion in the special experience of the periods of a finding at courses of improvement of qualification and passages of the regular military service in army. The Severodvinsk city court has accepted the finding for of the claimant [70 [71].

Protection by trade unions of the rights of citizens in social security sphere is used much less often, than protection of laws of master and servant. It is possible to explain it to that the working citizens considering address for the help in trade-union body, as a rule, that public control over observance is assigned to trade unions only legislations on work. Citizens, probably, chapter 58 TK misleads the Russian Federation. However it not absolutely so.

Owing to item 22 of the Federal act from January, 12th 1996 № 10-FZ «About trade unions, their rights and activity guarantees» (further-) trade unions the trade-union control over legislation observance in sphere of social insurance, health protection, social security has the right to carry out the Law on trade unions.

Let's address to the legislation of the Russian Federation on social security.

First, in ch. 2 items 14 of the Federal act from July, 16th 1999 № 165 FZ «About bases of obligatory social insurance» are told, that trade unions according to the legislation of the Russian Federation have the right to realisation of the trade-union control over use of means of obligatory social insurance.

Secondly, according to ch. 3 items 26 of the Federal act from July, 24th, 1998 № 125-FZ «About obligatory social insurance from accidents on manufacture and occupational diseases» public control over observance of legitimate rights and interests insured carry out trade unions or others authorised insured representative bodies.

Thirdly, it agree ch. 1, 2 items 8 of the Federal act from July, 24th, 2002 № 111-FZ «About investment of means for financing

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Memory pension in the Russian Federation »public control over formation and investment of means of pension accumulation is carried out by Social council on investment of means of pension accumulation which is formed on the parity basis of representatives of the all-Russian associations of trade unions and the all-Russian associations of employers.

Unfortunately, the concrete positions defining an order or at least procedure of control from trade unions, the legislation of the Russian Federation does not contain.

It is represented, that it is expedient to include the position similar ch in the Law on trade unions. 2 items 370 TK the Russian Federation, but extending not only on employers, but also on subjects of socially-obespechitelnyh relations who do not carry out the duties in relation to addressees of payments and services in social security. In this connection, we consider as expedient item 22 of the Law on the trade unions, defining the rights of trade unions to social protection of workers, to add ch. 3 in which to provide, that «trade unions have the right to control of observance by employers and their representatives, bodies of social security of standard legal acts about social security. Employers, bodies [72] social securities are obliged in week term from the date of requirement reception about elimination of the revealed infringements to inform in corresponding trade-union body on results of consideration of the given requirement and the accepted measures».

Directly in the organisation facilitate to workers protection of the right to social insurance granting of possibility by it to address in the commission on labour disputes (KTS) on a number of disputes on the payments, carried out at the expense of means of obligatory social insurance could. It is a question of the limited circle of the disputes connected, for example, with payment of leaves of invalidity, holidays on care of the child are elderly till one and a half years when disagreements between the worker and the employer arise concerning the data proceeding from employers. Even in those regions where the pilot project to destination insurance payments by directly territorial bodies of Fund of social insurance of the Russian Federation is realised, charge of insurance premium payments on wages working, granting of data on considered kinds of earnings, calculation of duration of the insurance experience

Employers carry out. It means, that in the presence of disagreements concerning the data necessary for calculation of grants, workers should argue with the employer on the questions connected with their labour activity. Such questions could be resolved the commission on labour disputes that does not contradict its competence defined in chapter 60 TK the Russian Federation [73].

At the permission of the specified disputes could be used and the procedure of mediation settled by the Federal act from July, 27th, 2010 № 193-FZ «About alternative procedure of settlement of disputes with participation of the intermediary (mediation procedure)» [74] which supposes its application to the disputes arising from labour legal relations, thus the agreement on carrying out of procedure of mediation can be fixed both in the employment contract, and in the separate agreement between the worker and the employer.

In the scientific literature, for example T.A.Soshnikovoj, is presented also other sight at realisation of protection of the rights of citizens. The mechanism of such protection is characterised by it as the body of laws, legal establishments and legal procedures with which help protection and restoration of the rights protected by the law and interests of the person and the citizen is carried out. Three mechanisms are allocated: state, the mechanism of public authority of municipal union, the mechanism of protection from public associations (including. Trade unions).

Offered T.A.Soshnikovoj definition and variants of the mechanism of protection of the right do not contradict the opinions stated earlier on forms and ways of protection of the right. Any way of protection is impossible without oposredovanija rules of law, has the legal procedures, specificity of functioning, the subjects arising in the course of protection of legal relations about whom there is a speech in T.A.Soshnikovoj's work.

Not only in work sphere, but also in the field of social security in the mechanism of protection of the rights and freedom the basic role is played by the state bodies (organisations), but the mechanism of protection from public organisations more uncertain and less used, than in the law of master and servant. The mechanism of public authority of municipal union (local governments) in right to social insurance protection is not swept up, and self-defence in general is absent. An another matter, use of the combined way in which the reference of the citizen under the initiative in this or that state or public body [75] (organisation) gives effect to the first mechanism from among named T.A.Soshnikovoj. In essence about same spoke also D.S.rustle though used a combination of different words, and, in our opinion, not

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Absolutely successful - legal self-defence. [76]

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A source: Gusev ALEXEY JUREVICH. JUDICIAL PROTECTION of the RIGHT of the RUSSIAN CITIZENS ON SOCIAL SECURITY. The dissertation on competition of a scientific degree of the master of laws. 2017Ìîñêâà. 2017

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