Services as a type of activity. Legal regulation of paid rendering of services
Under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
The contract for the provision of paid services is consensual, paid, bilaterally binding. The parties to the contract for the provision of services for compensation are the customer and the contractor. By legal nature, the contract for the provision of services is similar to a work contract. The difference lies in the subject of the contract, which in the contract for the provision of services is an activity whose main goal is not aimed at creating a materialized result. Although such a result may occur, its creation in a paid services agreement is never an independent subject of such an agreement and is always subordinated to its main purpose.
Unless otherwise provided by the contract for the provision of services for compensation, the contractor is obliged to provide services personally.
Both the customer and the contractor have the right to unilaterally refuse to execute the contract for the provision of services for compensation. The difference lies in the conditions of refusal: the customer is obliged to reimburse the contractor only for the expenses actually incurred by the latter, and the contractor is obliged to reimburse the customer for the losses incurred in full (clause 2, article 15, article 393 of the Civil Code).
Due to the similarity of the legal nature of the work contract with the contract for the provision of services for a fee, the Civil Code provides for the subsidiary application to this contract of a number of general provisions on the contract of work and the contract of domestic work.
Norms Ch. 39 of the Civil Code on the provision of services for compensation apply to contracts for the provision of communication services, medical, veterinary, auditing, consulting, information services, training services, tourist services and others, with the exception of services provided under contracts provided for in Ch. 37, 38, 40, 41, 44-47, 49.1 51, 53 GK.
A bet is a special type of game in which participants make opposing predictions about the occurrence of a certain event that is not related to the will and actions of the participants. In other types of games, participants can contribute to a certain result by their actions.
The disapproving attitude of the legislator to the organization of games and betting and participation in them was expressed in the failure to provide judicial protection to the claims of citizens and legal entities related to the conduct of games and betting. Apparently, the legislator does not consider property risk justified if it is not associated with the creation of objects of civil circulation and their exchange. General rule regarding games and betting, it is established in Art. 1062 of the Civil Code: claims of citizens and legal entities related to the organization of games and betting or participation in them are not subject to judicial protection.
An exception to this general rule are the claims of persons who participated in games or bets under the influence of deceit, violence, threat or malicious agreement of their representative with the organizer of games or bets, as well as claims against the organizer of the game in cases where the organizers of the games are special entities - The Russian Federation, constituent entities of the Russian Federation, municipalities, as well as persons who have received permission (license) from an authorized state or municipal body to conduct games.
In these cases, the game agreement is formalized by issuing a lottery ticket, receipt or other document. The proposal to conclude an agreement on participation in the game must include conditions on the duration of the game, the procedure for determining and the amount of winnings. This offer is addressed to an indefinite circle of persons and is a public offer.
After determining the results of the game, its organizer is obliged, within the period specified by the terms of the games, to pay to the persons who, in accordance with these terms, are recognized as winners, the winnings in the amount and form provided for by the terms of the games (in cash or in kind). If the term for paying out the winnings is not specified in the conditions, then the payment must be made no later than ten days from the moment the results of the games are determined.
Legal regulation and provision of a legislative framework are part of the administrative method of regulation on the part of the state and are not associated with the creation of an additional financial incentive or the risk of financial damage. This regulation is based on the power of state power and includes measures of prohibition, permission and obligations. The legal framework limits the freedom of economic choice of economic entities.
There are many legal acts regulating the activities of the service sector by providing a legislative framework and monitoring its implementation:
1. Constitution Russian Federation- the highest regulatory legal act of the Russian Federation, which "regulates the provision and provision of social services to the population on a gratuitous basis." For example, Art. 41 paragraph 1, which states that "everyone has the right to free medical care in state and municipal health care institutions, which is provided to citizens at the expense of the relevant budget." For commercial activities, the Constitution of the Russian Federation does not carry a regulatory burden, that is, it is not its regulator.
2. Civil Code of the Russian Federation - the code of federal laws of the Russian Federation, which effectively regulates entrepreneurial commercial activities, and in particular the service sector. For example:
Chapter 1 (Article 1) which states that “all goods, services and financial resources move freely throughout the territory of the Russian Federation”;
Chapter 6 (Article 128), which spells out the objects of civil rights. Whence it follows that the objects of civil rights, in addition to things (cash and documentary securities), non-documentary securities, property rights, the results of work also include the provision of services;
Chapter 25 (Articles 393 - 406), which refers to the obligation to "compensate for damages if the service was performed poorly or was not provided at all." It also determines the method and amount of damages;
Chapter 27 (Art. 424. Price, Art. 426. Public contract, Art. 429. Preliminary contract). This chapter defines the concept of a service contract, what should be spelled out in it, various types of contracts, their conditions for execution and termination, as well as the obligations and rights of the parties;
Chapter 39. Compensatory provision of services, consisting of five articles:
1) art.779. Contract for the provision of services;
2) Art.780. Execution of the contract for the provision of services;
3) art.781. Payment for services;
4) art.782. Unilateral refusal to execute the contract for the provision of services for compensation;
5) Art.783. Legal regulation of the contract for the provision of services.
From these articles follow the rules for drawing up a contract for the provision of services for compensation, execution by both parties-participants, the process of regulating relations between them.
3. the federal law Russian Federation - a federal legislative act of the Russian Federation, which also has a direct impact on the service sector. There are two main laws governing this area in general terms:
Federal Law of the Russian Federation of 07.02.1992 N 2300-1 "On the Protection of Consumer Rights in the Russian Federation";
The most important law of the Russian Federation, “governing relations between consumers and contractors in the provision of services”, establishing the rights of consumers to purchase services of adequate quality and safe for life, health, property and environment, obtaining complete information about the services and their performers.
Federal Law of the Russian Federation of December 27, 2002 N 184 "On technical regulation".
This Federal Law "governs relations arising in the course of production, installation, transportation and provision of services." It also regulates the fulfillment of mandatory requirements and compliance with the required quality assessment.
There are federal laws that regulate specific types and industries that are characterized by the provision of services. For example, the Federal Law of the Russian Federation of December 2, 1990 N 395-1 "On banks and banking activities."
4. Interstate standard (GOST) or national standard (GOST R) - standards adopted respectively by an interstate or national standardization body and available to a wide range of users. Two main standards governing the service sector should be distinguished:
GOST R 50646-2012 Public services. Terms and Definitions;
GOST ISO 9000-2011 Quality management systems. Fundamentals and vocabulary.
There are many different types and subtypes of standards for the provision of services. For example, GOST R 51108-97. Household services. Chemical cleaning. General specifications, GOST R 51006-96 Transport services. Terms and Definitions. And for others: funeral services, public services, hairdressing, fitness club services, cleaning services, repair services, and so on.
5. tax code of the Russian Federation - a codified legislative act that establishes a system of taxes and fees in the Russian Federation, affecting the scope of the provision of services:
Art. 39. Sale of goods, works or services;
Art. 40. Principles for determining the price of goods, works or services for taxation purposes;
Art. 148. Place of implementation of works (services).
In these articles you can find information about the rules for determining the price of the services provided, as well as about the established general principles taxation of persons engaged in the provision of services to the population.
Service activities - it is an activity, the useful result of which is expressed in itself: for example, consulting services on legal issues. In this case, the result of the consultant's actions is inseparable from the activity itself and is consumed by the person concerned in the course of this activity. In ch. 39 of the Civil Code of the Russian Federation provides an approximate list of such services (medical, veterinary, auditing, consulting, information, educational, tourism, etc.) that are the subject of a contract for the provision of services for a fee.
In such a narrow sense, the activity of providing services differs from the activity of producing work, aimed at achieving a materialized result to be transferred to the interested person. The result of the work in such cases can be separated from the actions themselves. Legal regulation is subject not only to the process of implementation of these works, but also the materialized result of these works. The legal form of work performance is a work contract. The Civil Code of the Russian Federation, defining the list of objects of civil rights, distinguishes between the results of work and the provision of services (Article 128).
Sometimes the concept of "service" is used by the legislator in a broader sense. For example, paragraph 3 of Art. 1 of the Civil Code of the Russian Federation guarantees the free movement of goods, services and financial resources throughout Russia. The Consumer Rights Protection Law also enshrines the concept of a service in a broad sense - as any action to serve consumers, including the sale of goods, the performance of work, the provision of services. Services in a broad sense are mediated not only by a contract for the provision of services for a fee, but also by other contracts: purchase and sale, contract, insurance, etc.
Activities for the provision of paid services are mediated by relations of different nature: for the provision of paid services, which are the subject of civil law regulation, and for the public organization of the sphere of paid services (state regulation and control), which are the subject of public law.
Relationships for the provision of services for a fee can arise both in commercial circulation and outside it. Those that arise between persons engaged in entrepreneurial activity, or with their participation, are entrepreneurial.
Sources of legal regulation of activities for the provision of services for a fee include Ch. 39 "Paid provision of services" of the Civil Code of the Russian Federation, the rules of which apply to relations for the provision of services not regulated by other chapters of the Civil Code of the Russian Federation (for example, Chapter 37
"In a row", ch. 38 "Implementation of research, development and technological work", Ch. 40 "Transportation", etc.).
For the purposes of saving regulatory material, the Civil Code of the Russian Federation establishes that the general provisions on the contract (Articles 702-729) and the provisions on household contracting (Articles 730-739) apply to the contract for the provision of services for compensation, if this does not contradict the rules on the contract for the provision of paid services services (Art. 779-782), as well as the specifics of the subject of such an agreement (Art. 783). This is explained by the unified economic essence of relations for the production of work and the provision of services, mediated by different legal forms due to the peculiarities of the subjects of the relevant contracts.
It is obvious that the system of contracts for the provision of services has not yet settled down, its consolidation in the Civil Code of the Russian Federation cannot be considered ideal. In our opinion, the rules 39 of the Code on the Provision of Services for Compensation could be common to all types of contracts for the provision of services, similar to, for example, the rules of Ch. 30 "Purchase and sale" are common in relation to all types of contracts of sale (retail sale, supply, etc.) 1 .
The regulation of relations for the provision of services for a fee is also carried out by federal laws “On Auditing”, “On Communications”, “On Veterinary Medicine”, dated November 24, 1996 No. 132-FZ “On the Basics of Tourist Activities in the Russian Federation”, and some others. Sub-legislative legal regulation is widely used in this area.
Introduction
2. Legal status of participants in the legal services market
2.1 Lawyers and bar associations
2.2Law firms and other specialized legal organizations
2.3 Individual practitioners
2.4Notaries
3. Legal service in commercial organizations
3.1 Legal service as a structural unit of a commercial organization
3.2 Functional responsibilities organization's legal adviser
4. Contracts for legal services and provision of legal services
4.1 Qualification of contracts for the provision of legal services
4.2. Types of contracts concluded by lawyers with clients
4.4 Legal fees
4.5 Responsibility of the parties under the contract for the provision of legal services
Conclusion
Bibliography
Introduction
On the this moment, legal assistance is a promising, rapidly developing area in law enforcement. In addition, the right to legal assistance is an important constitutional principle enshrined in the Constitution of the Russian Federation. Article 48 of the Constitution of the Russian Federation states: “everyone is guaranteed the right to receive qualified legal assistance; in cases provided for by law, legal assistance is provided free of charge” (Article 48, paragraph 1) .
However, it should be noted that today this direction is not well studied. The reason for this is that, until recently, the main forms of organizing legal assistance were the bar, notaries and legal (or legal advisory) services, which were created at enterprises, organizations and public associations to provide assistance to these enterprises, organizations or associations, respectively. Now a field has been created for new forms of legal activity, these are the notorious “other forms of legal assistance”. This is how textbooks call all other forms of legal services that do not belong to the bar and notaries. Unfortunately, a more precise definition of these forms cannot be given, since they represent a great variety of different forms of legal services, and their list is open. This brings confusion to the understanding of legal aid.
This work is a modest attempt to systematize the forms of legal assistance, to understand their meaning and functions, and to bring at least some clarity to the concept of legal assistance and its significance in modern society. This is a very urgent problem, from my point of view, because, despite the novelty of many principles and forms of legal assistance, it (legal assistance) has taken root well in our country and now in any city you can find some form: a notary office , or the bar, or private legal consulting firms, or even private detective agencies and detectives who also provide legal services.
The need for legal assistance arises constantly and everywhere. There is practically no such sphere of life or human activity in which every person, and not just a lawyer, needs to know and be able to apply certain legal norms. Whether we are talking about work or study, the purchase or sale of goods, obtaining services, the need to apply to government or other bodies, participation in the activities of public organizations, parliamentary elections, and so on - everywhere you may need qualified legal assistance. For this, there is legal assistance, which assists the population in understanding, comprehending the legislation and helps to use it for the benefit of a person who needs this assistance.
1. Concepts of legal services and activities for their provision
Legal services are services to assist individuals with legal matters. The activity of providing legal services is one of the types of legal practice that is objectively necessary in any society that has state structure.
Legal activity is on a par with other types of service activities, such as: audit, consulting, marketing, information, monitoring, evaluation and real estate activities. All these activities satisfy the public demand for certain types of services that accompany the main - production - types of economic activity.
Legal activity is: state, non-state or private (commercial) activity of professional lawyers to provide qualified assistance to individuals and legal entities in understanding, proper use and compliance with the law, advice on legal matters and questions of law, which is aimed at protecting and promoting the implementation of the rights and legitimate interests of citizens.
It is debatable whether a rigid state control in private legal practice. State control can be exercised different ways primarily through licensing and accreditation. Among lawyers, both scientists and practitioners, there are both supporters and opponents of the licensing of legal activities. At present, a license is not required to practice law, including the provision of paid legal services, since the current Federal Law of August 8, 2001 No. 128-FZ “On Licensing Certain Types of Activities” does not included in the list of activities subject to licensing.
The main professional participants in the legal services market are: lawyers and bar associations; law firms, other organizations specializing in the provision of legal services; individual practicing lawyers. Legal services are also provided by organizations that are not law firms, but in accordance with their statutory goals and objectives, provide legal assistance to their members and other persons. Close to the activity of providing legal services is the activity of notaries, which contributes to the proper execution of transactions and other acts. Many commercial organizations have a full-time legal service, thanks to which the organization's needs for legal services are met.
There is no unified generalizing law in which the norms regulating relations for the provision of legal services would be collected in the legislative system of Russia. In the resolution of the Constitutional Court of the Russian Federation dated January 23, 2007 No. 1-P “On the case of checking the constitutionality of the provisions of paragraph 1 of Article 779 and paragraph 1 of Article 7XI of the Civil Code of the Russian Federation in connection with complaints from the limited liability company "Corporate Security Agency" and a citizen V. V. Makeev” it is noted that “public relations regarding the provision of legal assistance as a separate subject of legal regulation in the current legislation are not singled out, they are regulated by a number of regulatory legal acts, the system of which includes the norms of the Civil Code of the Russian Federation, in particular its chapter 39, concerning obligations under the contract for the provision of services” (paragraph 3) In principle, one could raise the question of accepting general law about the basics state regulation activities for the provision of legal services, similar in their focus current Laws“On Appraisal Activities in the Russian Federation” and “On Auditing Activities”, but it seems that this is not necessary, at least at present. In addition, the activities of some participants in the legal services market are based on special laws: Federal Law of May 31, 2002 No. 63-FZ “On Advocacy and the Bar in the Russian Federation” (hereinafter referred to as the Law on the Bar) and the Law of the Russian Federation of February 11, 1993 No. 44621 "Fundamentals of the legislation of the Russian Federation on notaries" .
Importance of legal services for entrepreneurs. Entrepreneurial activity carried out on a certain legal basis. Compliance with legal regulations gives entrepreneurs the opportunity to successfully develop their business. On the contrary, violation of the provisions of legal norms entails undesirable consequences for entrepreneurs in the form, for example, liability for obligations, and repeated or gross violations of the law can lead to the forced liquidation of an entrepreneur - legal entity in the manner prescribed by paragraph 2 of Art. 61 of the Civil Code of the Russian Federation, to administrative and criminal liability of individual entrepreneurs and officials of commercial organizations.
In order to avoid violations and follow the requirements of the law in everything, entrepreneurs turn to specialists with legal knowledge, i.e. practicing lawyers. Legal service for business is a natural, objectively determined phenomenon, one of the components of legal activity.
Legal assistance provided by lawyers to entrepreneurs is also called legal support, legal support, legal support. All of the above terms are close in meaning and can be used in different contexts in the same semantic meaning: the provision of consulting and other services by professional lawyers to entrepreneurs on the legal issues of doing business. In a broader aspect, the term "legal service" is also used, which refers to the provision of various legal services to interested parties - clients, customers - on a contractual basis, involving constant or periodic interaction and cooperation between the contractor and the client.
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In the modern economy about One of the fastest growing and promising industries is the service sector.
The basic principles of legal regulation of the provision of paid services are established by the Constitution of the Russian Federation, for example, paragraph 1 of Art. 8 the unity of the economic space, the free movement of goods, services and financial resources, the support of competition, and the freedom of economic activity are guaranteed. The general legal regulation of contracts for the provision of services for compensation is carried out by Chapter 39 of the Civil Code of the Russian Federation.
According to Art. 779 of the Civil Code of the Russian Federation, under a contract for the provision of services for a fee, the contractor undertakes to provide services on the instructions of the customer, and the customer undertakes to pay for these services.
A special place among the normative legal acts regulating the provision of paid services is occupied by those approved in different time The Government of the Russian Federation rules for the provision of certain types of services, international acts, for example, the General Agreement on Trade in Services dated April 15, 2002 (GATS), which indicate the procedure for concluding relevant contracts, the rights of the consumer of services and the contractor, the obligations of the parties, as well as their liability for breach of contract . Important role in the application of legislation governing relations for the provision of services to the consumer, plays arbitrage practice.
There are a lot of gaps in the legal regulation of relations for the provision of services. The lack of clear concepts sometimes leads to incorrect regulation of emerging relationships. For example, the list of services presented in paragraph 2 of Art. 779 of the Civil Code, although it is extensive, but not exhaustive, the possibility of classifying other types of activities as services and, accordingly, using the norms of other institutions is not excluded. At the same time, the Civil Code of the Russian Federation secured the possibility of applying to contracts for the provision of services for a fee the general provisions on the contract (Articles 702-729 of the Civil Code) and on household contracts (Articles 730-739 of the Civil Code), but since work is also performed by performing certain actions or the implementation of certain activities, the problem of delimitation of works and services arises. The definition itself is rather general, more precise definitions should be given in special legal acts dedicated to a particular type of service.
Of great importance is the personality of the service provider himself, his individual data, experience, professionalism, knowledge, etc. Amendments should be made to Art. 780 of the Civil Code of the Russian Federation, since not all services have a strict personification of the performer. The proposed amendment will make it possible to provide for the possibility of replacing the contractor not only by the terms of the contract, but also by the provisions of legislative acts. If the service is purely technical in nature (for example, telephone services), there is no need to limit the right of the service provider to impose the performance of its obligations on another person. In such services, the identity of the performer is not of decisive importance in assessing the consumer properties of the service.