Lavrinenko
O.V., Candidate of
Jurisprudence, Senior Lecturer, Donetsk Legal Institute of Lugansk State
University of Internal Affairs of E.A. Didorenko
The Mechanism of Realisation of a Principle of Unity and Differentiation
of Legal Regulation of Labour Relations: Terminological Aspect (in a Context of
the Analysis of the Modern Branch Doctrine)
Results spent by the author of the
given publication of researches [1-2] became
the basis for following conclusions and generalisations. Contrary to ordinary opinion in the doctrine of
the labour law, that division of special rules of law into norms-additions and
norms-withdrawals does not mean, that the first group of norms always contains
side benefits or establishes additional legal guarantees, and the second –
worsens a legal status of the worker. This judgement is erroneous. If to
address to the current legislation it is possible to carry norms to
norms-additions about a disciplinary responsibility, fixed in charters,
positions about discipline and other statutory acts. Such norms-additions
provide – along with measures of summary punishment which are applied to
all workers, – and other disciplinary measures for separate categories of
workers. Proceeding from the thesis existing in the doctrine that norms-withdrawals
worsen a legal status of workers, in the literature the opinion is expressed,
that these norms are absolutely not inherent in some kinds of differentiation.
However, such is a basis of the given judgement it is represented doubtful as
the maintenance of norms-withdrawals is not reduced exclusively to decrease in
level of legal guarantees, they as it was marked, can and strengthen a legal
protection of interests of workers. It is represented, that distinction between
norms-additions and norms-withdrawals is characterised, first of all, by
character of a parity and consequences of application of the general and
special norms. At differentiation by means of norms-additions the last operate
along with the general norms. If the regulation occurs by means of
norms-withdrawals it means, that positions of the general norms of the labour
legislation in that case are not applicable. The rule here works: the special
norm excludes action of the general rule of law. In it distinctive feature of
the given norms consists. Such conclusion at all does not mean, that the
specified feature is unique.
Debatable
in a science there is also a question on the name existing special
трудоправовых norms. So, some scientists believe, that, besides norms-additions
and norms-withdrawals, differentiations of legal regulation of work are
inherent also norms-alternatives. At the same time a number of authors to
number of special norms carry in the same quality of «norm-adaptation». In our opinion, in this case it is a question
of terminological interpretation. In the literature the «norm-adaptation» term is more often applied, and as
norms-alternatives understand the norms containing various variants of the
decision from which body on law application «accepts» one. But last interpretation of a being of
norms-alternatives can be carried and to norms-adaptations. In the
terminological plan, in our opinion, it is necessary to give preference to the
term «norm-adaptation» and that is why. Character of mutual relations between
the general and special norms determines kinds of special norms and their
classification. The word-combination «norm-adaptation» as though means a certain transformation, the
adaptation of the general norm to concrete circumstances, and thereby remains dominating,
basic sign of special norm – communication, a parity of the general and
special norms. At application of the term «norm-alternative» the special norm appears already in a plane in activity on law application, and the distinctive sign (character of a parity of
the general and special norms) is lost and leaves on a background. Hence, more
correct in this case we see use of such term, as «norm-adaptation». Stated in modern labour-legal to the doctrine counterarguments (the essence of the
last is reduced to the reference of critics only on instructions of item 83 the
Labour Code of Ukraine which «gives possibility to the worker or completely to
use annual holiday for rest or its certain part to take money»), concerning use
of the term «norm-adaptation» as names of one their versions
of special norms are represented unpersuasive that is why also insolvent. It is
thought, that, more likely, the specified circumstance is only next and quite
natural acknowledgement of that provided and item 83 the Labour Code of Ukraine
an alternative variant of behaviour of the worker (which in this case and is body
on law application) directed on «adapting» the mechanism of realisation of a constitutional law
of the worker on rest for concrete vital conditions (to family circumstances,
interests, desires and so forth) the worker. Once again we will underline, that
«alternativeness» as in the resulted case (item 83
the Labour Code of Ukraine), and in other cases (for example, item 52 the
Labour Code of Ukraine), concerns not character of a parity of the general and
special norms – dominating, basic sign of special norms, and other moment –
actually activity on law application which is carried out already on the basis of presence
in the labour legislation of certain special norm. Thus, and in process definitions
in attention it is necessary to accept dominating, basic, instead of a
derivative (secondary) sign on character of special norm as that is offered by
critics in this case. More correct in this case is application of such
definition of special norm, as «norm-adaptation». And for the sake of the prevention of
terminological mess in a branch science as in many cases such concept, as «norms-alternatives» is used, use of such integrating
term, as «norms-adaptations (alternative)» is seen quite admissible. Therefore
in the given work the position of authors which resort to differentiation is
not divided, consider as the separate, independent kinds, specified
structurally uniform version of special norms – «norms-adaptations (alternative)».
Insolvent it is seen also a position of the authors believing, that «norms-adaptations» are absorbed by «norms-additions» in this connection necessity for
their separate allocation as a way of differentiation of the labour law is
absent. «Norms-adaptations», in our opinion, do not supplement, including by
cancellation, the general norms, and adapt their action for concrete conditions
realisation law. While «norms-additions», as is known, supplement (from here and there
is a name of the last!) instructions of the general legislation on work that is
not same. Reference by some researchers to number of special norms, such norms,
as «the norms establishing raised responsibility» is subject to negation and
speculative, without any substantiation. We will notice, that such
norms at all are not an independent kind of special labour norms. In practice
the last represent, depending on their concrete maintenance, either «norm-addition», or «norm-exception».
Literature
1. Лавріненко О.В. Проблеми доктринальної систематизації підстав диференціації правового
регулювання трудових відносин: термінологічний аспект // Вісник Донецького національного університету. – 2009. – Вип. 1. –
Т. 2. – С. 498–507.
2. Лавріненко О.В. Спеціальні норми як засоби реалізації принципу єдності й диференціації
правового регулювання трудових відносин (дискусійні питання теорії) // Вісник Луганського
державного університету внутрішніх справ ім. Е.О. Дідоренка. –
2010. – Вип. 2. – С. 189–198.