Risks: full-time employee VS private entrepreneur (FOP)
I want to offer a comparative analysis of the responsibility of a private entrepreneur and an employee. A huge amount of our brother is "employed" as an emergency. And it seems even to know that this is not exactly a job, and that there are considerable risks, but not many people know for certain.
The motivated source is a very competent lawyer, a business school. It was this topic (not in relation to programmers, but in general) that I had the opportunity recently to listen to in an intelligible way. Clarification: we are talking about Ukrainian realities and legislation, and therefore I will use the Ukrainian term FOP (all abbreviations at the end of the article), in order to avoid perception errors. Probably in Russia a very similar picture; I will be glad if the comments clarify the differences on the points presented.
I ask you not to take it as a horror story, but (God forbid) useful information on positions that should be given maximum attention when signing a contract - if you consider it important for yourself to protect yourself from the radical consequences of seemingly ordinary incidents.
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Employee: an individual who performs a labor function under an employment contract, in an organization using hired work.
FOP: an individual registered in the prescribed manner as a FOP, for which during the reporting period the average number of employees is not more than 10 and the turnover is not more than 2 million euros (Household Code, Article 55, paragraph 3).
Addition: an individual performing work under a contract for the supply of works / services / goods is in fact an entrepreneur (as part of the contract)! For unregistered activities, there is simply additional responsibility, in case of violation of the taxation rules, etc .:
If a person starts an entrepreneurial activity without state registration by concluding relevant agreements, he does not have the right to dispute these agreements on the basis that he is not an entrepreneur (Citizen Code, Art. 50, paragraph 3).
set forth points.
Employee: bonded man, a citizen of the country who needs comprehensive protection and care from the state.
FOP: two in one! The FOP is regulated at the same time by the requirements of the legislation both to individuals and legal entities.
Where a puncture is, there is a charge, according to a suitable article: pirated software is a criminal code, the job is not done — economic, I made a mistake with a currency transaction — a civil one ...
This is a natural person who carries out business activities and is registered accordingly (Economic Code, Article 55, paragraph 2).
Regulatory legal acts regulating entrepreneurial activities of legal entities are applied to entrepreneurial activities of individuals (including FOP) (Civil Code, Article 51).
Employee: part of the salary.
FOP: all property.
Economic entities are recognized as participants in economic relations that exercise economic competence (a set of economic rights and obligations), have separate property and are liable for their obligations within this property (Economic Code, Art.55, Section 1).
For the damage and losses (!) The entrepreneur bears the property and other (!) Responsibility established by the legislation (Economic Code, Article 49, paragraph 2).
FOP is responsible for its obligations related to business activities, with all its property (Civil Code, Article 52 para. 1).
The FOP, who is married, is liable for its obligations related to business activities, with all its property and part of the right of the common joint property of the family, which will belong to it in the division of this property (Civil Code, Article 52 para. 1).
Employee: only for direct loss (which still needs to be proved)
FOP: for all that is written in the contract, plus what can be justified in court
The composition of losses that are recoverable ... includes: the cost of the lost, incurred additional. costs, lost profits, moral compensation (Farm. Code, Art. 225, p. 1)
Employee: for their direct actions or inaction
FOP: personal, independent responsibility for all. As an individual, as a legal, and plus for employees.
A legal entity is independently responsible for its obligations (Citizens Code, Article 96 p.1).
Attention, nuance: If a certain individual on behalf of the FOP accepts payment for services, it is automatically equated to the employees of the FOP. This is regarded as a violation of the rules of registration of the employee, non-accrual of taxes for him, etc.
According to indirect data I have collected, in 2011 there was an official moratorium on conducting a tax audit “at home”. Then the official moratorium was lifted, but unofficially, these checks are still under the moratorium. Until. But to prepare for the guests from the tax (firefighters? Labor protection?) Slowly stands.
Unfortunately (or fortunately), I could not find any real cases of “undressing” a FOP programmer. Therefore, I will share the case from the practice of the aforementioned lawyer.
A person performs the duties of a driver-forwarder at Gazelle, in a very large company. In working hours, crashes into a foreign car, quite expensive. The Gazelle, the foreign car is broken, the goods in the back are damaged, the delivery time is broken (and, as I assume, there are injuries to the participants of the accident).
Since the worker performed the work as a FOP, it was logical to transfer the car for rent, the goods for safekeeping, the contract established responsibility for delivery dates, etc., and were stingy with insurance.
So, the company decided that it did not want to take on all these losses (including the responsibility for the supply) - “I had to drive normally.” Uncle hit, hard and hard.
Fool himself? May be. But the risk of error is always and at all.
PS: I thank residents for an invite
The motivated source is a very competent lawyer, a business school. It was this topic (not in relation to programmers, but in general) that I had the opportunity recently to listen to in an intelligible way. Clarification: we are talking about Ukrainian realities and legislation, and therefore I will use the Ukrainian term FOP (all abbreviations at the end of the article), in order to avoid perception errors. Probably in Russia a very similar picture; I will be glad if the comments clarify the differences on the points presented.
I ask you not to take it as a horror story, but (God forbid) useful information on positions that should be given maximum attention when signing a contract - if you consider it important for yourself to protect yourself from the radical consequences of seemingly ordinary incidents.
')
The subject in terms of legislation
Employee: an individual who performs a labor function under an employment contract, in an organization using hired work.
FOP: an individual registered in the prescribed manner as a FOP, for which during the reporting period the average number of employees is not more than 10 and the turnover is not more than 2 million euros (Household Code, Article 55, paragraph 3).
Addition: an individual performing work under a contract for the supply of works / services / goods is in fact an entrepreneur (as part of the contract)! For unregistered activities, there is simply additional responsibility, in case of violation of the taxation rules, etc .:
If a person starts an entrepreneurial activity without state registration by concluding relevant agreements, he does not have the right to dispute these agreements on the basis that he is not an entrepreneur (Citizen Code, Art. 50, paragraph 3).
set forth points.
Legislative protection
Employee: bonded man, a citizen of the country who needs comprehensive protection and care from the state.
FOP: two in one! The FOP is regulated at the same time by the requirements of the legislation both to individuals and legal entities.
Where a puncture is, there is a charge, according to a suitable article: pirated software is a criminal code, the job is not done — economic, I made a mistake with a currency transaction — a civil one ...
This is a natural person who carries out business activities and is registered accordingly (Economic Code, Article 55, paragraph 2).
Regulatory legal acts regulating entrepreneurial activities of legal entities are applied to entrepreneurial activities of individuals (including FOP) (Civil Code, Article 51).
| Employee | FOP |
|---|---|
| Presumption of innocence. Honest worker (until proven otherwise). Failure to fulfill obligations must be confirmed by the conclusion of the commission | The fulfillment of obligations must be documented. Lack of evidence is proof of guilt |
| Legislation on the side of the employee. Got sick / the boss is angry / there are few cubes of air - normal protection. Firing is easier in a good way. | The contract is broken easily; to challenge the need to go to court. The company's financial strength is unlikely to allow a precedent of failure. |
| Employees, including employees hired by FOP - protected by the Labor Code | FOP work does not fall under the protection of labor laws (hours of work, vacation, etc.) |
Than responds
Employee: part of the salary.
FOP: all property.
Economic entities are recognized as participants in economic relations that exercise economic competence (a set of economic rights and obligations), have separate property and are liable for their obligations within this property (Economic Code, Art.55, Section 1).
For the damage and losses (!) The entrepreneur bears the property and other (!) Responsibility established by the legislation (Economic Code, Article 49, paragraph 2).
FOP is responsible for its obligations related to business activities, with all its property (Civil Code, Article 52 para. 1).
The FOP, who is married, is liable for its obligations related to business activities, with all its property and part of the right of the common joint property of the family, which will belong to it in the division of this property (Civil Code, Article 52 para. 1).
| Employee | FOP |
|---|---|
| Not more than 20% of the average monthly salary (sometimes - 50%). You can not take compensation, severance payments, etc. (Labor Code, Art. 26, 128, 129) | They have the right to take away the apartment, and the DSLR, and the iPhone. Including jointly acquired, incl. in a civil marriage. Can not take: 1 set of bed linen, soap ... Stool seem more |
| The multiplicity of deductions is a farce, because a multiple is transferred to the budget (Law No. 217, Article 3) | Additionally, they can put up for lost profits, damage to the company's image, etc. |
| In the centuries. Deducted in installments monthly | If you did not have time to challenge - immediately after the court decision |
What is responsible
Employee: only for direct loss (which still needs to be proved)
FOP: for all that is written in the contract, plus what can be justified in court
The composition of losses that are recoverable ... includes: the cost of the lost, incurred additional. costs, lost profits, moral compensation (Farm. Code, Art. 225, p. 1)
| Employee | FOP |
|---|---|
| Only for direct loss, if full liability is issued, criminal actions are proven in court ... | For the damage and loss (!) The entrepreneur bears the property and other (!) Responsibility established by the legislation (Economic Code, Article 49, paragraph 2) |
| Cannot be responsible for lost profits (Labor Code, Art. 130), normal production risks, actions in conditions of extreme necessity | With an intelligently drafted contract, you can disown the loss of profits. If the company caught humane or FOP master to change the "Standard Contract" |
Responsible for
Employee: for their direct actions or inaction
FOP: personal, independent responsibility for all. As an individual, as a legal, and plus for employees.
A legal entity is independently responsible for its obligations (Citizens Code, Article 96 p.1).
Attention, nuance: If a certain individual on behalf of the FOP accepts payment for services, it is automatically equated to the employees of the FOP. This is regarded as a violation of the rules of registration of the employee, non-accrual of taxes for him, etc.
| Employee | FOP |
|---|---|
| Improper execution of work => reprimand. Collective responsibility is possible, subject to the voluntary signing of a collective responsibility agreement | Improper performance of work => court. Responsible for all actions and omissions committed by the FOP, incl. hired workers or yourself |
| Compensation z / p specialist who was idle. Remember: you need to prove! | Penalty for failure to meet the terms of the contract (% of the total amount of the contract) |
| Labor protection: the company compensates for employee damage | Labor protection: FOP compensates employee damage + pays fines to authorities |
Additional Information
According to indirect data I have collected, in 2011 there was an official moratorium on conducting a tax audit “at home”. Then the official moratorium was lifted, but unofficially, these checks are still under the moratorium. Until. But to prepare for the guests from the tax (firefighters? Labor protection?) Slowly stands.
Life example
Unfortunately (or fortunately), I could not find any real cases of “undressing” a FOP programmer. Therefore, I will share the case from the practice of the aforementioned lawyer.
A person performs the duties of a driver-forwarder at Gazelle, in a very large company. In working hours, crashes into a foreign car, quite expensive. The Gazelle, the foreign car is broken, the goods in the back are damaged, the delivery time is broken (and, as I assume, there are injuries to the participants of the accident).
Since the worker performed the work as a FOP, it was logical to transfer the car for rent, the goods for safekeeping, the contract established responsibility for delivery dates, etc., and were stingy with insurance.
So, the company decided that it did not want to take on all these losses (including the responsibility for the supply) - “I had to drive normally.” Uncle hit, hard and hard.
Fool himself? May be. But the risk of error is always and at all.
Proposed conclusions for those who become on the path of the FOP
- The maximum liability must be “on the shoulder”. With large risks (amounts, material values ​​or affairs are not managed by you) - it would be nice to have nothing. It may be necessary to prove that all the money was wasted “for nothing” - without buying or saving anything.
- Read the contracts, and even better - write yourself. And never be kept on the phrase: "We have a standard contract"
- Do not wave your hands after a fight. Suppose the ex-employee behaves badly: he puts on the Internet all the “dark” details of the company's life (I’m not going to hide the truth). Guide upset. Highly. But the contract was not terminated (or the prescription did not expire) ...
Terms: FOP / SPD / PE / PP
- FOP - fizzyna persona - pіdpriєmets (individual - entrepreneur)
- SPD - sub' kt pіdpriєmnitskoy dіyalnost (business entity). A broad concept, this includes everything - from PE to OJSC
- PE - a private entrepreneur. Analogue of Ukrainian FOP
- PP - private p_dpriєmets (self-employed). There is no such form, it is just a translation of Russian PE
- PP - private company (private enterprise). There is no such form. The law “On Enterprises in Ukraine” (Article 2) previously provided for this type of business entity, but now it has ceased to exist in this form
PS: I thank residents for an invite
Source: https://habr.com/ru/post/177629/
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