"Dead souls" are found not only in literature. A company may face a situation where the staff consists of employees who have not actually worked in the organization for a single day. What to do with such employees? How to competently fire them and is it necessary to do it? Can they get their money back? Who is to be punished for this?

In business, there are constant processes of changing the owners of the company as a result of integrations, bankruptcies, and the acquisition of shares. And sometimes the business owner, noticing that his company is not moving where he would like, suddenly decides to personally conduct a detailed audit. And the new management or the “awakened” owners of the company often face various kinds of “skeletons in the closet”. So unpleasant surprise there may also be the presence of employees who are actually not working at the enterprise - friends, relatives or acquaintances of the former bosses.

To the question "Who are all these people?" none of the real employees of the company can give a clear answer. It's not so bad if such "employees" were simply listed in the organization for the sake of seniority or for some other reason. But it also happens that fictitious workers received wages for a long time. Or maybe they didn’t receive a salary at all, but the former leadership improved their financial situation in a similar way? The obvious question arises: how to get rid of this ballast? Is it possible to return the money paid to such pseudo-workers? And of course, the owners and managers will puzzle the personnel officer and lawyer with similar questions. The situation is non-standard, and there can be no unequivocal answer here. It all depends on the depth of the problem. Let's analyze possible ways actions, prospects and risks.

Circumstance Analysis

To understand how to act in order to purify staffing from fictitious workers, it is necessary to establish the circumstances related to the registration and implementation of labor relations with them. To do this, you need to answer the following questions:

1. How were labor Relations with these employees? What documents - an order for employment, a work book, labor contract- Are there in the organization?

2. Was the time sheet kept for the employee? Was his salary paid and in what way (transferred to the card, handed out, by proxy)?

3. Was the employee present at the workplace for some time, did he do any work at all, were there any “traces of activity” in the form of passes issued, documents prepared by him, other work performed, etc.?

By answering this approximate range of questions, you can get material for work, according to which non-existent employees can be divided into several groups.

Options for action

Depending on the circumstances of registration of employees and the existence of labor relations, fictitious employees can be divided into several groups. Let's see how to deal with each of them.

The employee never showed up at work

An employment contract was concluded with the employee, an order was issued on his admission, work book a record was made, but he never appeared at the workplace.

In this case, in our opinion, it is possible to apply the procedure for canceling the employment contract and, accordingly, the order for admission and entry in the work book (Article 61 of the Labor Code of the Russian Federation). However, it is necessary to take into account the conditions under which it is possible to apply the procedure for canceling an employment contract. Thus, the employment contract enters into force:

- from the date of its signing by the employee and the employer, or

- from the date specified in the contract.

Recall: the employee must start work either on the date specified in the contract, or, if it is not specified, on the next business day after the entry into force of the employment contract. If he did not start his duties on the day the work began, the employment contract may be canceled. In this case, the employment contract will be considered not concluded, respectively, the rights and obligations of the parties under it do not arise.

In Art. 61 of the Labor Code of the Russian Federation does not say within what period it is possible to cancel an employment contract. From this it follows that the labor legislation does not contain time limits for the cancellation of an employment contract. Of course, this procedure takes place, as a rule, immediately after the employee did not go to work. But even in our situation, after a considerable time has elapsed from the moment the employment relationship was formalized, but was not actually carried out, we believe it is possible to apply the procedure for canceling the employment contract.

How to do it in practice? Here it is mainly necessary to prove that the employee did not work all this time, not a day or even an hour. If he nevertheless started to work, even if not on the first day, but after a week, a month, there are no grounds for canceling the employment contract, it will be illegal. In this case, we can talk about absenteeism.

Although there is another point of view.

Arbitrage practice. In 2008, an employment contract was concluded with an employee; he did not start his duties on the first working day, but actually began to work after a long time, only in 2009. The court considered the contract signed in 2008 not concluded (Appeal ruling of the Krasnoyarsk Regional Court dated 03.10.2012 in case N 33-8595 / 2012 ).

But in order to avoid disputes and to minimize risks, we believe that the indisputable option for applying Art. 61 of the Labor Code of the Russian Federation on the annulment of an employment contract will only be the case when the employee has not started employment duties for the entire period from the date of conclusion of the employment contract to the date of its annulment.

Evidence that the employee did not start work in such a situation may be the following documents:

— Reporting (official) notes the head of the department where the fictitious employee was registered, the head of the pass service, the head of the personnel service, the head of the IT department that such an employee never appeared at the workplace, he was not issued a pass, an account was not created, etc.;

— The act of absence of the employee at the workplace in the period from the moment of registration of the employment contract to the current moment, signed by the above-mentioned persons, in the field of official activity of which he somehow had to fall.

Then an Order should be issued to annul the employment contract, cancel the order to hire the employee, and also to invalidate the entry in his work book. As a basis for issuing such an order, memos and an act on the absence of an employee should be indicated. After that, in accordance with clause 30 of the Rules for maintaining and storing work books, manufacturing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of 04/16/2003 N 225, An entry is made in the employee's work book that the previous employment record is invalid.

The question of what to do with the employee's work book after the cancellation of the employment contract remains open. Since in this situation the employment contract is considered not concluded, the employer has no obligation to the employee to issue him a work book, as well as no responsibility for its non-issuance or delay. However, we believe that this still needs to be done, since from the moment the employment contract is canceled, the employer has no reason to keep this document. The employee should send a letter about the cancellation of the employment contract and the need to obtain a work book. You can, by analogy with the termination of an employment contract, ask him for an address to send a work book.

Concerning Employee's personal file(if it was established), in this case it should be destroyed, since there were no labor relations with the employer and the company has no reason to store the personal data of the failed employee.

Note. What to do in the case when the employer has drawn up all the documents and paid wages (confirmed by documents), but the employee has not actually worked a day? We believe that here we can also talk about the annulment of the employment contract. After all, the Labor Code of the Russian Federation connects the annulment of an employment contract with only one fact - with the fact that the employee did not start work.

Some experts believe that if the employer paid wages, then such an employment contract can only be canceled through the courts. This is a rather controversial statement, since the Labor Code of the Russian Federation does not provide for the procedure for canceling an employment contract in judicial order- only by the decision of the employer, provided that the employee has not started work.

Therefore, in our opinion, when canceling an employment contract, it turns out that the wages paid were not at all salary, but was unjust enrichment, because there was no reason to pay money (this will be discussed later).

At the same time, we did not find judicial practice on the claims of employers in such cases. We think that the courts would not have a unanimous opinion here. Still, the process of canceling an employment contract is not fully detailed: neither in terms of the time frame within which an employment contract can be canceled, nor in terms of status Money received as a salary.

Therefore, if you want to minimize your risks, it is advisable to negotiate with a fictitious employee "amicably".

What kind Risks may be in this situation? An employee can challenge the fact of annulment of an employment contract in court. But, what is important, in this case, it is no longer the employer who will prove the legality of the annulment of the employment contract, but the employee in accordance with Art. 56 of the Civil Procedure Code of the Russian Federation will have to prove the fact of work.

Recall that in accordance with paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts Russian Federation Labor Code of the Russian Federation” (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation N 2) in disputes related to the termination of an employment contract (dismissal), the employer must prove the legality of termination of an employment contract and dismissal of an employee.

But in the case under consideration, the employment contract is annulled, and therefore the obligation to prove their arguments is assigned to the employee and the employer equally.

Arbitrage practice. In Definition Supreme Court of the Udmurt Republic dated 03/07/2012 in case N 33-620/2012, a case was considered when an employee filed a lawsuit to recognize the fact of labor relations and invalidate the order to cancel the employment contract for part-time work. However, the plaintiff was unable to prove that he had started work, in connection with which the court dismissed the claim.

A typical situation is described in another case.

Arbitrage practice. The employee turned to the agricultural enterprise in order to get an entry in the work book. She needed him to participate in social program development of the village and the receipt of funds. The head of the agricultural enterprise complied with the plaintiff's request and signed an employment contract with him. Some time later, when the enterprise was already in the bankruptcy stage, the arbitration manager annulled the employment contract with the employee. The court in its decision noted the following: Art. 61 of the Labor Code of the Russian Federation does not provide for circumstances under which an employee who has not begun to perform duties would continue to have an employment relationship with the employer. The plaintiff has no evidence that he applied to the employer to provide him with a job, i.e. initially neither the employee nor the employer had any interest in the practical implementation of the labor agreement (Decision of the Balakovo District Court of Saratov dated September 19, 2011 in case No. 2 -2424/2011).

Thus, if the employment contract was indeed fictitious, the employee is unlikely to be able to prove the existence of an employment relationship.

Arbitrage practice. A similar situation is set out in the Ruling of the St. Petersburg City Court dated April 11, 2013 N 33-4286/2013. The employee could not prove that she had started working in the organization, and the fact that she performed some work under a civil law contract does not confirm the existence of an employment relationship with the plaintiff.

The employee occasionally appears at work

An employment relationship was formalized with the employee, and he occasionally appeared at work. For example, the head of the company often appoints former executives (chief accountant, head of security) to "honorary" positions, for example, "adviser CEO on economic security”, etc. This kind of “near-staff” positions can also be occupied simply by people who are especially close to the former leadership due to personal ties. What is more important here is that the employee was at least sometimes present at the workplace and did some work or worked remotely, for example, drafted documents for the organization. Consequently, labor relations between him and the employer existed in one form or another, so it will not be possible to cancel the employment contract.

In this situation, you can advise to act as follows. First, be careful Read the employment contract with such an employee and his job description (if any). If, despite verbal agreements, the employee, in accordance with the employment contract or the rules internal regulations the normal working hours are provided (for example, from 9.00 to 18.00), but he appears at the office of the organization at his own discretion or works at home, then he can be fired for absenteeism (paragraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation) .

In addition, if the position of an employee provides for a job description or his duties are spelled out in sufficient detail in the employment contract, but the employee performs them only partially or occasionally, then there are grounds for dismissal for repeated non-performance by the employee without good reasons job duties if he has disciplinary action(clause 5, part 1, article 81 of the Labor Code of the Russian Federation).

If a decision is made to dismiss for absenteeism, then it is necessary to fix Act on the current date, the period of absence of the employee at the workplace, then invite him to familiarize himself with the act and Giving explanations. And here it is appropriate to offer a fictitious employee to quit on own will so as not to "spoil" the work book. If he agrees, accordingly, the dismissal is carried out under paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

If he refused the peaceful option, then his Written explanation(in which the employee is unlikely to be able to refute the fact of his absence from work) or Act of refusal to submit a written explanation together with Act of absence from work are the basis for issuing a dismissal order under paragraphs. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. Then you should issue a dismissal order, make an entry in the work book and issue it to the employee on the day of dismissal.

Please note: in connection with the dismissal for absenteeism, difficulties may arise. So, all this time they could lead to an employee Time sheet as an ordinary employee, therefore, a contradiction may arise between the data of the time sheet and the act of the actual absence of the employee.

Note. In such a situation, it is advisable to request from the employee who compiled the time sheets, explanatory note that the time sheet in relation to the disputed employee was fictitious. Naturally, verbal agreements in this case are not valid. Will the employee want to give such explanations and will he still work for this moment, unknown. In fact, such behavior is already a reason for bringing him to disciplinary responsibility.

Keep in mind: if the employee subsequently appeals the fact of dismissal for absenteeism, the court may request time sheets, in which case the evidence - the time sheet and the act of absenteeism - will contradict each other. The question is how this evidence will be assessed by the court.

If, however, it is difficult to fix the absenteeism of an employee for any reason (for example, after a change in management, he began to be present at the workplace), the fact of the employee’s repeated failure to perform official duties should be reflected. To do this, it is necessary to create conditions for the employee so that he can fulfill his duties: provide workplace, provide tasks. Do not dismiss such a duty. If the employer is unable to provide the employee with a job and work, then it is unlikely that the employee will be found guilty (if he appeals against the employer's actions) of dereliction of duty. After all, a disciplinary offense is characterized not only by failure to fulfill duties, but also by the fault of the employee in this.

And then analyze the events. It is unlikely that a “decorative” employee will turn out to be a professional and instantly figure everything out. Therefore, at the first failure to perform official duties (which may be a usual delay), record this with an act and impose a disciplinary sanction, and during the period of the sanction, record the second case of non-performance of official duties. Then you can dismiss the employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction. Of course, in this case, before starting the procedure, it is worth explaining to the employee the right to dismiss at his own request.

In both situations, remember to Timing provided for in Art. 193 of the Labor Code of the Russian Federation: a disciplinary sanction may be applied no later than one month from the date of discovery of the misconduct. The day of detection of misconduct in accordance with paragraphs. “b”, paragraph 34 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2, is considered the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions.

Accordingly, if an employee has to be fired for absenteeism or failure to perform official duties, then it is necessary that these are “fresh” misconduct (within a month's prescription) or continuously lasting.

Example 5. An employee did not appear at work for two years, and was present at the workplace for the last month. In this case, it will be difficult to explain how a person was listed in a particular department for two years, and the head of the department discovered this only when the leadership changed. Therefore, the date of detection of misconduct will be at least the last day of the employee's absence from the workplace, and not the current period. At the moment, it makes sense to fix a continuously lasting absenteeism (or other misconduct).

A situation may arise when an employee, without appearing at the company's office, worked remotely and this was prudently reflected in his employment contract. You should also read his job description here. If there is no obligation to submit regular reports and other types of control and the employee works formally, then there is nothing to dismiss him for: he did not commit absenteeism, since his job description did not provide for the need to come to the office daily, he performed his duties, for example, prepared documents, presentations, design projects, etc.

In this case, there are two options: to have a conversation with the employee and invite him to quit of his own free will. If the employee does not agree to this option (which is very likely), it remains to apply the procedure for reducing the number and staff and dismiss the employee under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Is it possible to collect wages

If one of the purposes of registering an employee in the state was to pay him wages, it is logical that the new management will want to recover this salary. As much as possible?

By general rule wages overpaid to an employee (including in case of incorrect application of labor law or other regulatory legal acts containing norms labor law), cannot be recovered from him (Article 137 of the Labor Code of the Russian Federation). Exceptions are provided in the following cases:

- counting error;

- if the body for the consideration of individual labor disputes recognizes the fault of the employee in non-compliance with labor standards or idle time;

- if the salary was overpaid to the employee in connection with his illegal actions established by the court.

How do these rules apply to the situations discussed above?

Recovery of paid wages upon cancellation of an employment contract

As we noted above, in such cases, labor relations between the employee and the employer do not arise from the very beginning, since the employment contract is considered not concluded. Accordingly, the restrictions under Art. 137 of the Labor Code of the Russian Federation, are not applicable here, because the amounts paid are not wages. In this case, they will be unjust enrichment, since the fictitious employee received them without any legal and factual grounds. Note that the most important thing here is to cancel the employment contract, then the funds will be received not within the framework of labor relations.

In this situation, the general limitation period for civil disputes is applicable - three years (Article 196 of the Civil Code of the Russian Federation). The question arises, from what moment, in accordance with Art. 200 of the Civil Code of the Russian Federation, should it be considered: from the moment when the plaintiff found out or when he should have found out about the violation of his right? So, if an employee was registered four years ago and never appeared at the workplace, receiving a salary all this time, then the employer (not as a specific leader, but as entity) should have found out about it literally the next day after the entry into force of the employment contract, and even more so - on the date of transfer of the first salary. We believe that the limitation period of three years will be considered not from the date of issuance of the order to cancel the employment contract, but from the date when the employer transferred wages (for each relevant payment). Accordingly, what the employee received in the first year is unlikely to be recovered, unless the application of the limitation period is declared.

As for the evidence, they will be acts on the absence of an employee at the workplace from the date of execution of the employment contract to the day of its cancellation, an order to annul labor relations, payment documents for the transfer of salaries, testimony of witnesses.

But we emphasize: there is no judicial practice, and therefore it is difficult to predict what decision the court will make. Obviously, the decision to return "unjust enrichment" must be made in each specific case. If the amount is significant, then the legal costs will be justified.

Recovery of wages in case of absenteeism or failure to perform official duties

You can collect wages under the following condition specified in Art. 137 of the Labor Code of the Russian Federation: if the body for the consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards or idle time (Articles 155 and 157 of the Labor Code of the Russian Federation). In our case, the fault will be precisely in the failure to comply with labor standards, since these payments cannot be qualified as a counting error. Also, there are no illegal actions committed by an employee in order to receive wages, unless, of course, the employee presented false documents for employment or did not write out a salary to himself, etc. It is more than likely that the legislator, under illegal actions, had in kind of this kind of action.

The body for the consideration of individual labor disputes, in accordance with Art. 382 of the Labor Code of the Russian Federation, is a labor dispute commission (if there is one at the enterprise) or a court. We will proceed from the fact that there is no commission on labor disputes in the organization and it is necessary to go to court. It hardly makes sense to first file a claim to establish the fact of the employee's guilt in failure to comply with labor standards, and then recover from him the overpaid wages. Therefore, it is necessary to make demands on the establishment of the fact of non-fulfillment of official duties (both in the form of absence from the workplace, and in the form of direct non-fulfillment of the employee’s functions in full or in part).

The calculation of the limitation period in this case also raises questions. So, for employers, a one-year limitation period is provided for applying to the court only for claims for compensation for damage caused by an employee (Article 392 of the Labor Code of the Russian Federation). For the claim to establish the fact of non-compliance with labor standards, the term for going to court is not mentioned at all. We believe that in this case one should be guided by the one-year statute of limitations.

The moment at which the limitation period began to run, we think, should be considered the day when the employer should have learned about the employee's absenteeism or failure to fulfill his duties. Accordingly, as in the case of the annulment of an employment contract, this will not be the date the act was drawn up, but the date when the failure to comply with labor standards should have been discovered, or the date the employee received wages (depending on the position of a particular court). Thus, here, too, most likely, it will be possible to collect wages not for the full period, but only for Last year within the time limit for applying to the court.

As for evidence, for absenteeism, this will be an act of absence from the workplace. To prove the absence of grounds for paying wages, it is not even necessary to impose a disciplinary sanction for absenteeism: The employer is not obliged to pay for the days when the employee did not work for no good reason.

Arbitrage practice. This position is reflected in the following judicial acts: Appellate rulings of the St. Petersburg City Court of September 18, 2013 in case N 33-12662/2013, of the Moscow City Court of July 18, 2013 in case N 11-21891/13.

But with the proof of the fact of non-fulfillment of official duties, the situation is more complicated. Here you have to prove that the employee had a real opportunity to do his job, as mentioned earlier. If an employee was simply present at work, but he had neither equipment nor tasks from his superiors, it is unlikely that the employee’s guilt in failing to comply with labor standards and the unreasonableness of the salary paid can be proved.

Arbitrage practice. As can be seen from the Appellate ruling of the Khabarovsk Regional Court dated May 22, 2013 in case N 33-2916 / 2013, the burden of proof lies with the employer, and the innocence of the employee is implied.

criminal element

There may also be a situation where the workers themselves did not receive any salary, and other people signed the payroll. The same could happen with the one listed on bank card wages. Such a scheme could be used by the former leadership to create the so-called "black box office", and simply for the purpose of personal enrichment. There is fraud using one's official position - Part 3 of Art. 159 of the Criminal Code of the Russian Federation. Perhaps these actions of the head will fall under other norms of the Criminal Code of the Russian Federation on property crimes. Here, it is already necessary to cooperate with law enforcement agencies regarding the prosecution of the former leader and other persons involved in such a fraud.

As for the recovery of damages, in this case, a civil claim should be filed in criminal proceedings (Article 44 of the Code of Criminal Procedure of the Russian Federation). If the former leader is found guilty of fraudulent actions, the court will also satisfy such a claim. Of course, it can be declared later, as part of ordinary civil proceedings, but for this you will have to pay a state duty, and it will take more time.

As you can see, getting rid of fictitious workers is not an easy procedure. In addition, it is likely that the employee will want to challenge the cancellation of the employment contract in court or wish to prove the illegality of dismissal for absenteeism. Most likely, the employee will resist the collection of wages from him. As a rule, in such situations, pseudo-employees feel protected and are unlikely to be ready to return unearned money. Not the fact that in this case the court will take the side of the plaintiff (employer). Therefore, when dealing with non-existent employees, it is necessary to act carefully and carefully prepare a high-quality evidence base: both in the case of employee claims, and in the case of recovering unearned money from the employee or bringing the manager to criminal liability for salary fraud.

abuse of office

Abuse of office - dead souls

Recently, there have been more and more reports in the media about bringing to criminal responsibility the leaders of various budget institutions for the employment of "dead souls". The latter are understood as employees who are officially registered at enterprises, but in fact do not fulfill their direct duties. A similar trend is evidenced by the emerging judicial practice.

The concept of "dead souls" was first introduced into circulation by N.V. Gogol in the process of creating the work of the same name. In fact, the idea of ​​the poem is based on real facts from the life of Russian society in the 19th century, and A.S. Pushkin/

The current criminal legislation assumes that the subject of this crime is executive executing organizational and administrative and administrative functions in the institution. Considering the question of whether a corruption offense was committed by an official, a person holding a public position of the Russian Federation or a public position of a constituent entity of the Federation, a foreign official, an official of a public international organization, as well as a person performing managerial functions in a commercial or other organization, the courts are guided by notes 1, 2 and 3 to Art. 285, note 2 to art. 290, note 1 to art. 201 of the Criminal Code of the Russian Federation.

In addition, it is necessary to take into account the clarifications of the RF PPVS dated 16.10. 2009 N 19 "On judicial practice on cases of abuse of power and abuse of power”.

As a rule, the preliminary investigation authorities qualify the actions of persons who have committed crimes related to fictitious employment of personnel under Part 3 (Part 4 - if the amount of theft forms a particularly large amount) Art. 159 of the Criminal Code - fraud committed using one's official position; Art. 285 of the Criminal Code - abuse of power, as well as Art. 292 of the Criminal Code - official forgery. Decree N 19 proposes to qualify these actions precisely under Art. 285 of the Criminal Code.

An analysis of the materials of criminal cases of this category shows that the employment scheme for fictitious workers is simple. The head of the institution, on the basis of the application of the person, issues an order for his employment. Then, deliberately false information about the hours worked by the employee is entered into the time sheet of the personnel. On the basis of the time sheet, the accounting department of the organization accrues funds in the name of the false employee in accordance with his functional responsibilities and working hours reflected in the corresponding accounting sheet, which actually does not correspond to objective reality. In the future, the wages of the false worker are handed out or transferred to a bank card, but in the end it goes to the manager who initiates such actions.

Such a scheme of fictitious employment does not always lead to criminal liability of the head. Let's consider several possible situations.

In the event that the head of the organization receives the salary of an employee, his actions are seen as either a qualified fraud using his official position (parts 3 or 4 of article 159 of the Criminal Code), or a disciplinary offense.

Judicial practice knows cases of acquittal of officials who, although they registered “dead souls” for work, however, themselves or their relatives performed labor duties for the registered employee. Hence, the formal employment of persons who do not personally fulfill their duties is not yet a criminally punishable act.

In the given example job responsibilities of a fictitious employee were actually executed, the funds were received personally by the head of a budgetary institution. Practice knows other cases when the labor duties of false workers were not performed, but their salary was spent exclusively on the needs and interests of the institution, which became the basis for terminating the criminal case on a rehabilitating basis.

Since the abuse of power is one of the crimes with a material composition and is considered completed from the moment the consequences occur in the form of a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state, then in the actions of an official due to the absence of such consequences, there is only official misconduct, entailing disciplinary, but not criminal liability.

Analyzing the content of Art. 285 of the Criminal Code, it should be noted that actions contrary to the interests of the service means that the official acts within the framework of the powers granted to him, but at the same time violates his official duties. If this is not due to official necessity, then the act should be considered as contrary to the interests of the service. An obligatory element of the objective side of this crime is the onset of consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state, which is in a causal relationship with the act.

In itself, a significant violation of rights and legitimate interests is an evaluative concept, therefore, it is necessary to decide on the existence of such a significant violation on the basis of the specific circumstances of the case, however, in each case, the materiality of the violation of rights and legitimate interests must be justified. It is not enough just to indicate the infliction of significant harm on the legally protected interests of citizens, organizations and the state.

An integral part subjective side crime under Art. 285 of the Criminal Code, as well as the crime under Art. 292 of the Criminal Code, is the motive - selfish or other personal interest. As a rule, personal interest is expressed in the desire to gain a non-property benefit and may be due to various motives: careerism, protectionism, nepotism, the desire to hide one's incompetence, avoid disciplinary liability for violations, mistakes in work, receive support from influential people, etc.

Establishing the motive of selfish or other personal interest, which guided the person in committing the crime, is mandatory, therefore, the sentence must indicate what exactly such motive was expressed in. In the case when a person uses his official powers contrary to the interests of the service, but does not seek to receive any personal benefits as a result, the motive is the misunderstood interests of the institution and there is no corpus delicti.

A comparative analysis of court decisions taken in similar criminal cases showed that the positions for which false workers were fictitiously employed were very diverse: a cloakroom attendant, a cleaner/cleaner of office premises, a driver, Social worker, auxiliary worker, authorized correspondent, stoker, laboratory assistant, plumber, disinfector, fireman, doctor, veterinary orderly, junior educator, senior nurse, watchman, massage therapist, part-time instructor-methodologist, choreography methodologist, music education methodologist , teacher of physical education, master of industrial training, etc. Despite such a wide range of positions, they are united by the following: they are all low-paid, not included in the circle of the management of organizations, one employee can be easily replaced by another.

In paragraphs 17, 35 of Decree No. 19, the Supreme Court clarified the distinction between forgery and other elements of the crime.

However, despite such a clear explanation of the Supreme Court of the Russian Federation on the category of cases being analyzed, the question of the presence in the actions of the head of the corpus delicti under Art. 292 of the Criminal Code, for some representatives of law enforcement agencies remains unresolved.

For example, not all persons prosecuted for committing crimes related to fictitious employment of personnel were charged with committing forgery. Without entering false information into official documents on the performance of labor duties, it is actually impossible for a false worker to commit this crime. Such mistakes of the preliminary investigation bodies led to the violation of the rights of those persons who were prosecuted for similar crimes, including those under Art. 292 of the Criminal Code, and received more severe punishments.

The practice of considering criminal cases on corruption-related crimes related to fictitious employment of personnel shows that such crimes are most typical for budgetary institutions in which funding is not provided in the proper amounts. The study revealed that the analyzed crime was more often committed in secondary schools, kindergartens, in state institutions for social service of the population, in vocational schools, etc. As follows from the testimony of persons involved in these crimes, later acquitted by the court, the reason for their actions to employ "dead souls" was an obvious lack of funds for current needs budget organizations. Due to the lack of funds and the inability to organize a permanent sponsorship managers "filled in" gaps in accounting estimates in a similar way.

The study showed that the line between the presence of corpus delicti in the actions of the person who organized the fictitious employment of personnel and a disciplinary offense is very fragile and sometimes the preliminary investigation bodies, without understanding the reasons for the actions of the head, without checking and evaluating in the aggregate all the evidence collected, send "disclosed » a case of corruption directed to the court, which ultimately leads to acquittals.

In order to prevent such situations from occurring, the following factors should be taken into account:

1) the composition of the crimes under Art. Art. 159, 285 of the Criminal Code, no, if the false worker's labor duties are performed in full and this is confirmed by the testimony of witnesses, the injured party has no claims, the money (the employee's salary) is spent at the discretion of the head in the interests of the institution. At the same time, funds cannot be turned into the property of the employed person;

2) the composition of the crimes under Art. Art. 159, 285 of the Criminal Code, no, if the labor duties of the false worker are not actually performed, but the funds (the employee's salary) are spent exclusively on the needs of the institution, which is caused by urgent need. In this case, it is necessary to document the expenditure of the received funds for fictitiously arranged persons (checks, receipts, accounting documents). All acquired property must be available and on the balance sheet of the organization. Funds cannot be turned into the property of the employed person.

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The principles set forth in the said article regulate most of the existing possible grounds for the dismissal procedure, and among them there is also a dismissal at the initiative of the employer - a reduction in staff or positions is a type of such dismissal.

• Art. 81 of the Labor Code of the Russian Federation. The said article deals directly with questions relating to when and how an employer can lay off employees on its own initiative. Including as such a reason, a reduction in the staff is provided.
• Decree of the Plenum of the RF Armed Forces No. 2 dated March 17, 2004. The normative document clarifies the application by the courts general practice the provisions of the aforementioned Art.

My own lawyer

Among them it is customary to single out:

• fairly high earnings;
• no taxation;
• there is no employee responsibility for the work done;
• the opportunity to work and receive a salary together with social benefits;
• additional earnings in addition to official work.

In addition, fictitious employment for alimony in Russia is quite common. In this case, the alimony payer underestimates the real salary or finds an unofficial job, thereby bringing the salary bar to zero.

Attention

Accordingly, a person will pay minimum alimony for the maintenance of minor children. Not entirely fair, but this practice is becoming more and more common.

Disadvantages Fictitious employment has almost no disadvantages.

Defunct workers

Important

federal law 420-FZ of 07.12.2011) (see the text in the previous wording) 2. The same acts that caused a significant violation of the rights and legitimate interests of citizens or organizations or the legally protected interests of society or the state, are punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wage or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to four years, with the deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by deprivation of liberty for a term of up to four years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

Fictitious employment and responsibility for it

• All decisions to reduce the number of employees or positions should also be reflected in local regulations. The employer is obliged to enter information about the abolition of positions or a decrease in the number of employees in the official regulations.
• Changes in the official regulations in connection with the reorganization, changes in the number of employees or the list of positions must come into force until the actual dismissal of the employee, and not after it.
  The jurisprudence on a fictitious staff reduction in this matter takes the side of the employee, even if the reduction was real, but the change in the job schedule occurred a few days before the employee was fired.
• You have to be very careful with new job descriptions for new employees and to the introduction of new positions in the enterprise.

What slams for a fictitious registration of a non-working worker?

• Informal job placement
• The advantages of this type of employment for the employee and the employer
• What threatens the employer for informal employment of an employee
• Fictitious job placement

Often difficult financial position makes people look for work in not quite official ways, without formalizing any documents. This is contrary to labor laws, but, nevertheless, the phenomenon exists.

Therefore, we will consider the problem of such employment in more detail. Informal employment The labor legislation of the Russian Federation does not consider such a phenomenon as informal employment.

What is the responsibility for fictitious employment?

This applies to work that is performed by an employee for a short period, but it should not be more than 3 days. Then it is not necessary to register an employee, and this will not be a violation of the law.

If the work continues for a longer time, then it is necessary to conclude an agreement. Responsibility of individual entrepreneurs Administrative liability is provided for entrepreneurs.

Info

How much is the fine for an unregistered worker? If a violation is detected, the amount will be 1-5 thousand rubles. In this case, the work of the entrepreneur may be suspended for 90 days, which leads to losses and the closure of the organization.

Registration costs will be less than fines. But if the employee continues to work like this for more than 1 year, and no taxes were paid for this period, then the possible opening of a criminal case under article 199-1 of the Criminal Code of the Russian Federation. In case of major damage, the fine for an individual entrepreneur for an unregistered employee will be up to 300 thousand rubles.

Fake downsizing

Decree No. 19 The Supreme Court gave clarifications on the distinction between forgery and other elements of the crime. However, despite such a clear explanation of the Supreme Court of the Russian Federation on the category of cases being analyzed, the question of the presence in the actions of the head of the corpus delicti under Art.

292

The Criminal Code, for some representatives of law enforcement agencies, remains unresolved. For example, not all persons prosecuted for committing crimes related to fictitious employment of personnel were charged with committing forgery.

Without entering false information into official documents on the performance of labor duties, it is actually impossible for a false worker to commit this crime.

What is the penalty for an unregistered worker? legal practice

As a result, the state does not receive funds for the maintenance of pensioners, and the employee loses his pension in the future.

• There will be no deductions to the insurance fund, which allows you to use free medical care.
• An employee without registration has no rights to many things. It will be difficult for him to receive payments in the calculation, salary, compensation for vacation.
• When disputes arise in court, it will not be possible to prove one's case.
Thus, informal employment harms the state and the employee himself.

The task of controlling institutions is to identify violations and respect the rights of employees. What fines for an unregistered employee are supposed to be paid by employers will be discussed further.
When can you not register an employee? There is only one case when it is possible to do without official registration.

An employer, when applying for a job without a contract, has a number of positive bonuses:

• tax minimization. The fact is that most of the taxes paid by the employer to the state treasury are charged from the wage fund of the employees employed by him.
  Logical conclusion: the smaller the taxable base, the smaller the amount payable;
• lack of personnel paperwork;
• lack of duties and obligations in relation to an informally arranged citizen. For example, it is not necessary to ensure labor safety, it is possible not to pay the employee the full amount of the promised fee.

If the first item on the list can still somehow justify (from the point of view of the employer) informal employment, then the last item is very doubtful and remains entirely on the conscience of the employer.

Punishment for fictitious employees in the enterprise

Recently, there have been more and more reports in the media about the criminal prosecution of the heads of various budgetary institutions for the employment of "dead souls". The latter are understood as employees who are officially registered at enterprises, but in fact do not fulfill their direct duties.
A similar trend is evidenced by the emerging judicial practice. The concept of "dead souls" was first introduced into circulation by N.V. Gogol in the process of creating the work of the same name. In fact, the idea of ​​the poem is based on real facts from the life of Russian society in the 19th century, and A.S. Pushkin / The current criminal legislation assumes that the subject of this crime is an official who performs organizational, administrative and administrative functions in an institution.

Convicts legally and reasonably convicted of embezzlement and complicity in the appropriation of another's property
Document dated July 24, 2013, published on the website on October 29, 2013 under the number 40318, 2nd criminal, Criminal Code of the Russian Federation: art. 33 h.5 - art. 160 part 3, the judicial act LEFT WITHOUT AMENDMENT

ULYANOVSK REGIONAL COURT

ULYANOVSK REGIONAL COURT

***Case No. 22-2304/2013

APPEALS DEFINITION

Judicial Collegium for Criminal Cases of the Ulyanovsk Regional Court consisting of:

presiding judge Lvov G.V.,

judges Korotkova Yew.Yew. and Lenkovsky S.V.,

with the participation of the prosecutor Lobacheva A.V.,

lawyers Nasyrova N.Kh., Solodovnikova D.V.,

under Secretary Pelkin A.E.,

examined in open court the appeal representation of the assistant prosecutor of the Novospassky district of the Ulyanovsk region Vilyaeva The.P. and appeals of convicts Anokhina N.G., lawyer Nasyrova N.Kh. to the verdict of the Novospassky District Court of the Ulyanovsk Region dated May 29, 2013, which

Anokhina N*** G*** not previously convicted,

convicted under Part 3 of Art. 160 of the Criminal Code of the Russian Federation (as amended by the Federal Law of 07.03.2011 No. 26-FZ) with the application of Art. 64 of the Criminal Code of the Russian Federation to a fine of 40,000 rubles;

Nikulkina G *** S *** not previously convicted,

convicted under Part 5 of Art. 33, part 3 of Art. 160 of the Criminal Code of the Russian Federation (as amended by the Federal Law of 07.03.2011 No. 26-FZ) using Art. 64 of the Criminal Code of the Russian Federation to a fine of 15,000 rubles.

Preventive measure convicted Anokhina N.G. and Nikulkina G.S. in the form of a written undertaking not to leave and proper behavior was left unchanged until the entry into force of the verdict.

By verdictDecided the fate of physical evidence.

After hearing the report of Judge Korotkova Yu.Yu., the speeches of the prosecutor Lobacheva A.V., lawyers Nasyrov N.Kh., Solodovnikov D.V., the Judicial Collegium

SET UP:

Anokhina N.G. found guilty of misappropriation, that is, theft of another's property entrusted to the guilty, using his official position, Nikulkina T.C. - in complicity in misappropriation, that is, theft of another's property, entrusted to the guilty person, committed by a person using his official position.

The crimes were committed in the Novospassky district of the Ulyanovsk region under the circumstances detailed in the court verdict.

In the appeal submission assistant prosecutor Novospassky district of the Ulyanovsk region Vilyaev The.P. considers unreasonable the appointment of convicted punishment with the application of Article. 64 of the Criminal Code of the Russian Federation. He believes that the court wrongfully leftwithoutattention thatperfecta crimeappliesto the category of corrupt. In addition, believes incorrect qualification of actions Anokhina N.G. and Nikulkina G.S., as appropriation of the entrusted property, since in this case there was embezzlement.

He asks to cancel the verdict of the court and issue a new guilty verdict.

The appeal convicted Anokhina H.G., disagreeing with the verdict of the court, claims that Nikulkina T.S. out of personal hostility, she slandered her, with the goal of removing her from office. She did not receive any money from her, she was not in collusion with her. She believes that the sentence is based on assumptions and was illegally handed down in the absence of evidence of her guilt. At the same time, the court unreasonably based the verdict on the contradictory testimony of Nikulkina G.S., her daughter P*** O.V., who testified under the dictation of the latter, her former deputy for educational work R*** T.S., who wrote complaints against her, and T *** P.A., who does not remember that she hired P *** O.V. At the same time, shelter workers: E*** E.A., B*** T.N., S*** Z.A., B*** G.A., N*** Z. N. confirmed in court that G.S. Nikulkina, on a par with them, cleaned part of the premises, namely, the basement. Thus, she performed duties that were not included in the functions of the deputy director, and received a salary for this. It was Nikulkina G.S. engaged in the selection of personnel, distributed harvesting areas between junior educators and office cleaner. Nurse D*** M.V. testified at the court session that in the period 2007-2008 there were no comments on the sanitary condition of these areas.

He asks the court to change the verdict, terminating the case against her due to the lack of corpus delicti under Part 3 of Art. 160 of the Criminal Code of the Russian Federation.

The appeal lawyer Nasyrov H.Kh. in the interests of the convicted Anokhina N.G. gives similar arguments, pointing out that extremely hostile relations developed between the convicts during the period of their joint work. In this regard, the basis of the verdict is unreasonably based on the testimony of Nikulkina G.S., which contradicts the testimony of junior educators.

At the same time, witness N*** Z.N. pointed out that in the period 2007-2008 the salary of a junior educator was distributed to Nikulkina G.S., who cleaned the basement. Witnesses A*** N.V., K*** G.A., A*** G.M., who worked in the administration of the shelter, explained that Nikulkina G.S., performing labor functions P*** O.V., received wages for the actual work performed. These witnesses did not report this fact to the head, since they were dependent on Nikulkina G.S.

The conclusion of the handwriting examination found that four payrolls had a signature on behalf of O.V. Pankova. performed not by Nikulkina G.S., but by other persons. However, neither during the investigation nor in court was it found out who was the executor of these signatures. In this regard, it is doubtful who owns the signatures in other documents that form the basis of the accusation (order on employment, work book, etc.).

Counts that the intent Anokhina H.T. on misappropriation of another's property is not proven, signs of negligence are seen in her actions. He asks the court to change the verdict, terminating the criminal case in part of the charge Anokhina N.G.

At the Court of Appeal:

Prosecutor Lobacheva A.V. upheld the appeal presentation, objecting to the arguments of the complaints;

Lawyer Nasyrov H.Kh., acting in the interests of Anokhina NG, objected to the satisfaction of the appeal submission and supported the arguments of the appeals in full;

Lawyer Solodovnikov DV, acting in the interests of Nikulkina GS, objected to the arguments of the appeals and submissions.

After checking the case materials, discussing the arguments of the appeals and submissions, after listening to the speeches of the persons involved, the judicial board considers the court's verdict lawful, reasonable and fair.

The conclusions of the court on the guilt of Anokhina H.T. in committing misappropriation, that is, theft of another's property entrusted to the guilty, using his official position, and in relation to Nikulkina T.S. - assisting in the commission of these actions, correspond to the actual circumstances of the case and are based on evidence obtained in the manner prescribed by law, comprehensively, fully and objectively examined in court and received an assessment of the court in accordance with the requirements of Art. 88 Code of Criminal Procedure of the Russian Federation.

All the arguments given in defense of Anokhina N.G. were the subject of a thorough check in the court of first instance and were reasonably recognized by the court as untenable.

Nikulkina G.S. the judgment has not been appealed.

As established by the court session, Anokhina N.G., working as director ***”, was a financially responsible person, carried out in accordance with an employment contract with the Department social protection of the population of the Ulyanovsk region, the powers to use the funds provided to the institution from the budgets of all levels, extra-budgetary funds, to ensure and comply with the rules of internal labor regulations, labor discipline, labor protection requirements, as well as organizational, administrative and administrative and economic functions in a public institution. In September 2007, knowing for certain about the availability of vacancies in the social shelter, having enlisted the assistance of the Deputy Director for general issues social shelter Nikulkina G.S., Anokhina N.G. there was an intent to embezzle funds from the regional budget, using his official position, by fictitious registration of the daughter of Nikulkina G.S. as a junior educator of a social shelter. – P*** O.V.

In pursuance of his criminal intent, Anokhina N.G., using his official position and acting as a performer, and Nikulkina G.S. being her accomplice, began to act as follows: in September 2007, more exact time the investigation did not establish, but no later than September 25, 2007, Nikulkina G.S. provided by Anokhina N.G. the work book kept by her in the name of her daughter P *** O.V., personally completed the application for employment on behalf of the latter and signed for her in the employment contract.

In turn, Anokhina N.G. a fictitious employment contract No. 12/7 dated 09/25/2009 was executed and signed, order No. 72 p dated 09/25/2007 on the acceptance of P *** O.V. from 09/25/2007 to work in the GUSSO "***" for the position of junior educator, order No. 97 k dated 11/16/2007 on the transfer of P *** O.V. from 11/20/2007 to work as a cleaner of office premises, which were provided to the accounting department.

Later, Anokhina N.G. on a monthly basis, she provided to the accounting department the time sheets and payroll signed by her P *** O.V., who actually did not work in this institution.

12/19/2008, at the direction of Anokhina N.G., Nikulkina G.S. wrote on behalf of P*** O.V. a letter of resignation, and Anokhina N.G. made an entry about the dismissal in the work book P *** O.V.

In accordance with the fictitious order on hiring P *** O.V., the time sheets containing deliberately false information about the work of P *** O.V., drawn up and signed by Anokhina N.G., wages were paid payment P*** O.V. in the amount of 32453 rubles 85 kopecks, which Anokhina N.G., pursuing a mercenary goal, appropriated, having received funds by agreement from Nikulkina G.S., who signed the payroll.

The court rightfully based the guilty verdict on the consistent testimony of the convicted Nikulkina G.S., according to which in September 2007 Anokhina N.G. called her to her office and demanded to bring the work book of her daughter P *** O.V., who worked unofficially in Moscow, for fictitious employment of the latter in a shelter as a junior educator, in order to obtain Anokhina N.G. Money. During that period of time, they had a normal working relationship. In September 2007, she handed over to Anokhina N.G. daughter's work book, wrote an application for her employment at the shelter and signed under the name P *** O.V. After that, an employment contract was drawn up, in which she also signed for her daughter and entered her data. The head Anokhina N.G. signed for the employer. P*** O.V. she had never been to the shelter, she learned about her fictitious employment much later. Nikulkina G.S. did not do work in the shelter for her daughter, but only helped the workers. From November 2007 to December 2008, the work of the cleaner of office premises, in whose position her daughter P *** O.V. was listed, was performed by junior educators. At the same time, they did not receive any additional payments for performing the work of a cleaner of office premises. On behalf of Anokhina N.G. she came to the cashier, signing the payroll for her daughter with the cashier, and gave the money received to Anokhina N.G. About two times she left money at the cash register, and when the latter went to work, she gave it back. She did not take any money. In December 2008, at the direction of Anokhina N.G., chief accountant A *** N.V. she wrote a letter of resignation to her daughter P *** O.V. and received her work book with a record of dismissal dated 12/19/2008.

Witness P*** Oh.The. confirmed at the court session that she had never worked in the social shelter “***”. The fact that in the period from 09/25/2007 to 12/19/2008 she was fictitiously employed, she learned from her mother, Nikulkina G.S., according to whom Anokhina N.G. forced her to fictitiously employ P *** O.V., and subsequently received the last salary and transferred it to Anokhina N.G.

Assessing the testimony of Nikulkina G.S. together with other evidence, the court reasonably found them reliable. The conclusions of the court are motivated in detail. The judicial board has no grounds for a different assessment of the evidence examined by the court and the actual circumstances of the case, which the court was guided by in making its decision.

The arguments of the defense side about the slander Nikulkina T.S. his former leader - Anokhina N.G. in view of the established hostile relations, they were carefully checked by the court and received a proper assessment.

Despite the existence of conflicts between the convicts, set out by Nikulkina G.S. the facts of the assignment of Anokhina N.G. funds allocated from the budget for the remuneration of workers of the shelter received objective confirmation. At the same time, the information reported by her to law enforcement agencies entailed the prosecution of G.S. Nikulkina herself, on whose part a confession took place.

The testimonies of the witnesses referred to by the authors of the complaints were comprehensively, objectively analyzed by the court, received a correct assessment and, together with other evidence, were correctly recognized as sufficient for an indisputable conclusion about the guilt of Anokhina N.G. and Nikulkina G.S.

In addition to the testimony of Nikulkina G.S. and witnesses, the conclusions of the court about the guilt of the convicts are confirmed by written evidence (records of seizure of documents, payrolls, orders on the personnel of the GUSO SP "***", copies of employment contracts, job descriptions, Pankova O.V.'s personal card, expert opinions and others) directly examined by the court and set out in detail in the verdict.

Contrary to the arguments of the complaints, there are no objective data confirming the implementation of Nikulkina G.S. there are no functions of a junior educator, and subsequently - a cleaner of the office premises during the working hours indicated in the timesheets (7.2 hours).

As follows from the testimony of the personnel specialist and cashier K *** G.A., the time sheet was kept by her at P *** O.V. in the period from 09/25/2007 to 12/19/2008, since according to Nikulkina G.S. she did the work for her daughter P *** O.V. She believed that this was true, several times she saw Nikulkina G.S. changed into work clothes, cleaned in the basement of the building. Director Anokhina N.G. approved the time sheets, after which O.V. wages were accrued, which K *** G.A. issued by Nikulkina G.S.

At the same time, Nikulkina G.S. Throughout the entire preliminary investigation and trial, she denied the fact that she had performed the functions of a junior educator and cleaner of office premises, explaining that she only occasionally helped the workers of the shelter.

According to the timesheet Nikulkina G.S. in the position of Deputy Director, her working day is 7.2 hours, which objectively did not allow to combine these official functions.

Under such circumstances, the testimony of the workers of the shelter, to which the authors of the appeals refer, cannot testify to the execution of Nikulkina G.S. duties of a junior educator and office cleaner in accordance with the terms of the employment contract signed by her on behalf of Pankova O.V.

As follows from the testimony of these witnesses, they only occasionally observed G.S. Nikulkina. in work clothes and cleaning the basement of the building. However, none of them, including HR specialist K*** G.A., confirmed the fact that she was performing any work in other premises assigned to junior educators and office cleaner in accordance with their official duties and on a full-time basis, recorded in the timesheets Pankova Oh.The.

Moreover, from the testimony of witnesses Ya*** O.V., B*** G.A., N*** Z.N., D*** M.V. it follows that when the office cleaner was absent, his work was distributed among junior educators. No additional payments were made for this work.

From the testimony of the junior teacher C *** Z.A. It appears that between September 2007 and December 2008 the floors in the basement were not washed at all by junior caregivers or cleaners.

Witnesses R*** T.S., T*** R.A. argued at the hearing, that in the specified period Nikulkina T.C. acted only as Deputy Director for General Affairs.

After analyzing the testimony of Nikulkina G.S. and these witnesses, the panel of judges does not see any significant contradictions affecting the correctness of the assessment of the evidence given in the verdict.

Having correctly established the factual circumstances of the case, the court, taking into account the position of the public prosecutor, correctly qualified the actions of Anokhina H.T. according to part 3 of Art. 160 of the Criminal Code of the Russian Federation (as amended by the Federal Law of 07.03.2011 No. 26-FZ), and the actions of Nikulkina G.S. - according to part 5 of Art. 33, part 3 of Art. 160 of the Criminal Code of the Russian Federation (as amended by the Federal Law of March 7, 2011 No. 26-FZ).

As follows from the circumstances of the case, Anokhina N.G., working as the director of the GUSO "SP" ***", being a materially responsible person, exercising the authority to use the funds provided to the institution from the budget for the remuneration of workers of the shelter, using her official position, implemented the intention to misappropriate the funds entrusted to her by fictitious registration of labor relations with P *** O.V., charging her wages and subsequent circulation of the accrued amount of money in her favor.

In turn, Nikulkina G.S., not possessing the signs of a special subject of appropriation of other people's property, took a direct part in the theft of budgetary funds in accordance with a preliminary agreement with Anokhina N.G., assisted her in committing a crime, filling out and signing on behalf of her daughter - P * ** O.V. documents necessary for the fictitious employment of the latter, as well as receiving wages for it at the cash desk of the institution with the subsequent transfer of the received funds to Anokhina N.G.

The arguments of Anokhina N.G. that the documents related to the work of P*** O.V. she signed without looking, not knowing about her fictitious employment, cannot be considered convincing, because, holding the position of the director of the institution, it was she who had the authority to hire, manage the budget funds allocated for the remuneration of the workers of the shelter, and directly issued and signed fictitious orders on employment P*** O.V. For a long time Anokhina N.G. signed time sheets and payrolls with fictitious information about the work and payroll of P *** O.V., on the basis of which budgetary funds were illegally issued to Nikulkina G.S., and as a result of the latter's assistance in committing a crime were appropriated by Anokhina N .G.

The arguments of the defense about the absence of Anokhina H.T. mercenary motives are directly refuted by the testimony of Nikulkina G.S., which were recognized by the court as reliable.

Contrary to the arguments of the appeal, the judicial board does not see in the actions of the convicts signs of embezzlement of the entrusted property, suggesting that such property was spent against the will of the owner through its consumption, expenditure or transfer to other persons.

Other arguments of complaints, submissions were the subject of consideration in the court of first instance and received a proper assessment.

Checking the arguments of the idea of ​​excessive leniency of the imposed punishment, the panel of judges sees no grounds for recognizing it as unfair.

By virtue of Art. 6 of the Criminal Code of the Russian Federation, punishment and other measures of a criminal law nature applied to a person who has committed a crime must be fair, that is, correspond to the nature and degree of social danger of the crime, the circumstances of its commission and the personality of the perpetrator.

The punishment for the convicts was appointed in accordance with the specified requirements of the law, as well as the provisions of Art. Art. 60, 62 of the Criminal Code of the Russian Federation, taking into account the nature and degree of public danger of the crime committed, data on the identity of the perpetrators, characterized positively, mitigating circumstances established by the court and set out in the verdict, as well as the impact of the imposed punishment on their correction and the living conditions of their families.

The conclusions about the imposition of punishment are motivated in the verdict, there are no grounds for a different assessment of the circumstances by which the court was guided in making its decision.

Taking into account the actual circumstances of the case, the court correctly concluded that there were no grounds for changing the category of crime in accordance with the provisions of Part 6 of Art. 15 of the Criminal Code of the Russian Federation.

At the same time, taking into account the specific circumstances of the case, the nature and degree of public danger of the deed, the amount of damage, data on the identity of the convicts, the court reasonably concluded that there were exceptional circumstances that would allow them to be sentenced using the provisions of Art. 64 of the Criminal Code of the Russian Federation.

Violations of the requirements of the criminal procedural legislation, entailing the cancellation or change of the court decision, are not seen.

Guided by Art. Art. 389.13, 389.20, 389.28 and 389.33 Code of Criminal Procedure of the Russian Federation, judicial board

DETERMINED:

The verdict of the Novospassky District Court of the Ulyanovsk Region dated May 29, 2013 in respect of Anokhina N*** G***, Nikulkina G*** C*** to be left unchanged, and the appeal submission, appeals - without satisfaction.

presiding

Judges

Any employment contract defines the rights and obligations of participants in the labor process. This is the main content of the agreement. The employment contract regulates the labor relations that have arisen between the organization and the hired employee. When signing such an agreement, it is important to familiarize yourself with all the points in the official document. All conditions must not violate the rights of the employee. If the terms of the contract are illegal or negative for the rights of the employee, such a contract may be declared invalid.

Recognition of the employment contract as invalid. Foundations

All terms of an employment contract are usually determined initially when signing a document or later on. Additional terms may be contained in additional agreement attached to the main contract. Renewal of the employment contract is also often practiced.

If the terms of the employment contract deteriorate noticeably, the employee has the right to demand from the management appropriate benefits, compensations, which are provided for by the current legislation of the country. In the event of a disputable situation, working conditions that worsen the position of the employee may be declared invalid. An invalid employment contract is illegal.

If the conditions are declared invalid, the contract itself may remain valid. However, illegal conditions must be replaced by arbitrary conditions established by the collective agreement or the current legislation. If any violations are found on the part of the employer, a violation of labor laws can be officially recognized.

Employers also have the right to establish additional benefits and privileges for their employees. This happens due to own funds companies. For example, an employer, under certain circumstances, at its own expense, has the right to:

• shorten the working time of a particular employee
• increase employee leave
• set the employee additional days off.

Features of the procedure for recognizing fictitious employment contracts as invalid

In judicial practice, cases of concluding so-called fictitious labor contracts are not uncommon. The invalidity of employment contracts is proved in court. This is relevant, for example, if the employer deliberately entered into an agreement with an employee retroactively, who will not fulfill the established obligations. The purpose of concluding such an employment contract is often the illegal acquisition of work experience, the receipt of wages under the contract without participation in the labor process. In this case, the concluded employment contract is a fake. If such circumstances are revealed, the signed fictitious employment contract is recognized as invalid. All participants in illegal activities can be prosecuted. Art. 362 of the Labor Code of the Russian Federation establishes punishment for other offenses when signing employment contracts.

As a rule, employment contracts are declared invalid in such cases when the situation of the employee worsens in accordance with the current legislation. This is possible at the initiative of the two parties to the labor process or the body that monitors and supervises compliance with the current labor legislation of the country. It is also possible to recognize an employment contract as invalid by a court decision or a special commission that deals with various labor disputes.