Legal aspects of contract military service V. Pashinsky Candidate of Legal Sciences icon

Legal aspects of contract military service V. Pashinsky Candidate of Legal Sciences




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LEGAL ASPECTS OF CONTRACT military service

V. Pashinsky

Candidate of Legal Sciences,

assistant professor of legal support NUOU ,

VF Lihtin

Colonel listener NUOU
Statement of the problem . One of the main directions of reforming the Armed Forces of Ukraine is their transition to manning passing military service under the contract. The main task of the Armed Forces' transition to manning service contract is the formation and maintenance of such structure and number of which meet the economic capabilities of the state , while increasing alertness and navchennosti personnel. This task is impossible without creating an appropriate regulatory framework that governs all aspects of military service under the contract. And in this respect is an important issue of the theoretical study of the legal nature of the contract and features military sludby .

Analysis of recent research and publications. Given the fact that the contract of military service is a relatively new institution for our legal system in Ukraine is currently no fundamental theoretical research on contract for military service.

The purpose of the article is to consider the specifics and peculiarities of the legal nature of the contract for military service as a special form of the transaction .

The main results of the study. Military laws of Ukraine established the right of citizens on the basis of voluntary agreements, choose military service as a profession. The relationship of the parties in this case are governed by contracts for military service , which set the terms of military service , basic rights and responsibilities and guarantees after termination of military service. The emergence of military service relations associated with the entry into force of the contract , as announced in the order corresponding military commander. Contracts are: short-term (up to 3 years), medium term (3 to 5 years) , long-term (5 to 10 years).

The main purpose of the contract for military service , is the following:

- Firstly , the legal frameworks of military service , securing agreements on military service ;

- Secondly , to create an alternative form of voluntary entry into military service for different kinds of activities achieved manifold types of contracts ;

- Thirdly , the implementation of personnel policies by adjusting the number of personnel required for the Armed Forces of Ukraine .

In Ukraine , the contract of passage of professional military service was first provided by the Law of Ukraine " On Universal Military Duty and Military Service", March 25, 1992 but due to economic difficulties in the country, and from lack of an appropriate legal framework for regulating the passage of professional military service under the contract , the transition to a professional military service was implemented.

Widely distributed in the armed forces of foreign countries, a contract for military service , is a relatively new institution for our legal system.

Consider the features of contract military service. In accordance with the Law of Ukraine "On Social and Legal Protection of military personnel and their families " [2 ] the right of military personnel to work ( Clause 1 Article 8) is realized through military service , that military service is a special Variety of work that has specificity due to its scope - defense and national security . Making a specified activity occurs in the form of military duty ( military conscription ), and on a voluntary basis , that military service under the contract.

Since the contract military service expected a special kind of work, it is stated the fact in practice can lead to improper identification of the concept of contract military service with the concepts of " contract of employment " and " civil contract " and therefore use regulation, which does not apply to it. Thus , it is necessary to determine the legal nature of the contract for military service.

Specificity work establishes the features and differences mentioned concepts. Civil contract - an agreement of two or more parties aimed at the establishment, modification or termination of civil rights and obligations (Art. 626 CC of Ukraine ) . [3] The basic principle of the legal regulation of civil contract is freedom of contract , which is characterized by freedom of expression and coordination of contractual terms, the formal legal provisions rivnopravovym parties and other characteristics. A civil relationship is material and intellectual benefits or the process of creation, which are the subject of the subjects of civil law. The first is the property to the other - the results of intellectual activity, moral , and other intangible benefits.

The object of military service relations is a public interest in defense and national security of Ukraine , which is the subject of military activity . The subject of a civil contract , is usually the result of the commitment and regulation of relations between the parties in implementing it was ancillary , while the subject of the contract for military service is to regulate relations in the process of passing military personnel . Freedom of expression, which is characterized by voluntary contract, its terms of choice , has a different meaning at the conclusion of a civil contract and contract military service. In the first case, it lies in both voluntary and in coordination type, form and content of a civil contract , and the second - only voluntary contract military service specified form and content.

By contract military service almost not members used the opportunity to choose the option contract conduct and coordination of the conditions that are characteristic of a civil contract , except as expressly stated in the law. For example, the only condition for contract military service , you can choose the service member is a term , which concluded a new contract , that contract to be entered into the military , performing military service voluntarily , or citizen who previously passed it in that order , moreover choices as established by the Law of Ukraine " on Military Duty and Military Service " (p. 19 - 20 ) [1 ] and the Regulations of the citizens of Ukraine military service in the Armed Forces of Ukraine (Article 18 - 25) [ 4] .

This provision is explained by the special nature of public legal relationships governed by contract. In the same time period , which concluded the first and some other types of contracts, determined Regulations of the citizens of Ukraine military service in the Armed Forces of Ukraine . [4] The standard form of contract for military service does not involve making any additional conditions , except for the specific rights and duties of military personnel provided by the legislation of Ukraine and the peculiarities of their military service, that the head of department of the executive power of Ukraine (Ministry of Defense of Ukraine , Ministry of Affairs of Ukraine , Security Service of Ukraine ) at the right point in it .

Formal legal equality of the parties that signed the treaty, as a principle of a civil contract is characterized in that it operates not only at the stage of the contract , but at the stage of implementation, while the equality of the parties in relation to the contract for military service characteristic only at the stage of its conclusion.

After signing the contract for military service having military service relationship that is Variety administrative, characterized by the inequality of the parties , that further legal regulation is based on the method of power and subordination. Thus, a contract for military service is not a Variety civil contract , and therefore , it can not apply consequences arising out of breach of contractual obligations , for example, damages (Article 1166 of the Civil Code of Ukraine ), penalty interest on use of funds (Article 1048 of the Civil Code of Ukraine ) and others [3 ].

Contract of military service also differs significantly from the employment contract. The concept of employment contract set out in Art. 21 of the Labour Code of Ukraine [ 5]. The main elements of the agreement are: a ) the composition of the parties: the worker who goes to work and the owner of the company is, the organization or its authorized body or individual employer  b) identifying key specific responsibilities of the employee and the owner of the enterprise , institution, organization or body authorized by it arising out of this contract.

The parties of military service is, on the one hand , the Ministry of Defense of Ukraine and other state executive body ( Ministry of Interior, Security Service ), in which the law provides for military service, on the other - citizen who entered the military service voluntarily. Thus, we have a specific subjective structure: only a limited range of government agencies , which provides for military service, citizens of Ukraine who meet the statutory requirements ( mental health, education , health ). Foreign citizens , citizens with dual citizenship , stateless persons can not be a party to the contract for military service , and as a result, subject to military service relations .

In contrast to the employment agreement ( contract) the specific nature of duties is not established contract servicemen of military service , and relevant laws and regulatory acts : the soldiers assigned duties related to preparing for armed defense and armed defense of Ukraine that the air ' associated with the necessity of unconditional execution of the tasks under different conditions , including life-threatening (paragraph 2 of Art. 1-2 of the Law " on social and legal protection of servicemen and their families" . [2]

The degree of capacity to contract to choose behaviors in relation to employment agreements and contracts for military service is different. At the conclusion of the contract for military service side ( citizen and officer) can not change the prescribed conditions set out in the form of contract for military service , except those subject to coordination (eg, time) .

Another difference between the employment agreement ( contract) contract for military service , is the fact that the statutory basis is the first Labour Code of Ukraine and the second - the Law of Ukraine "On Military Duty and Military Service", " Regulations of the citizens Ukraine military service in the Armed Forces of Ukraine " and other regulations on the procedure for military service and military status (Article 3 § 1 of the Act ) [1 ]. Thus, a contract for military service is not a Variety employment contract.

Contract of military service mediates specific activity of citizens of Ukraine in the sphere of defense and national security , which is the need to unconditionally perform the tasks in the specific conditions in including the risk to health and life. Displayed specificity determines the legal nature , especially the conclusion and termination of the contract for military service. It is a coordinated expression of the two formally equal to its conclusion stage actors ( citizen or soldier and an authorized official ) that is carried out to cause legal consequences for the parties. An essential feature of the contract is also his typing. That is making him severely in the form prescribed by regulations . Normative legal acts can be found several forms for different types of contracts.

Contract passage of professional military service in the Armed Forces of Ukraine - a written agreement concluded between the citizen and the state Ukraine , whose name is the Ministry of Defense of Ukraine to establish a legal relationship between the parties during their military service . [4]

The contract may be the first and the new. The first contract may be awarded to the citizen, who has not previously held a professional military service in the Armed Forces of Ukraine . In accordance with Art. 18 Regulations of the citizens of Ukraine military service in the Armed Forces of Ukraine for the first contract entered into military service for the term : from ensigns ( warrant officers ) - at least 5 years with those officers - from 5 to 10 years , with students of military academies of passage of military service after military school for officers' posts - 5 years.

The new contract may be drawn up : a) a citizen , formerly military service in Ukraine , and b) to a citizen who is military service , c) with the military , seconded from other military units in the Armed Forces of Ukraine with the exception of the lists of personnel groups , d) of the military , military service which was discontinued .

The new contract is not later than two months before the expiry of the current contract and shall take effect upon the expiry of the previous contract.

The contract for the period of training in higher military educational institution and placed on five years of military service after graduation (contract to be concluded in a military school ) concluded with the soldier , who is studying full-time education in military schools, which have at their within military institutions , departments military training, military training department . It can be both the first and the new.

Contract of military service can be viewed in three ways: a) as a legal fact , that is the foundation of military origin of official relations , and b ) as a relationship - empowering the parties rights and obligations , c) the document - a form of generalization relationships.

The basis of relationship in passing professional military service is voluntary contract for military service , which comes into force on the date of signature of the appropriate official , that is a legal act that gives rise to legal consequences for the parties , giving them rights and responsibilities.

Contracting of passing the professional military service is two stages:

1 ) A reconciliation of the parties will , characterized by voluntary admission to professional military service ( subjective aspect ). Absence will not generate military service relationship , the contract is not considered final ;

2 ) the will , that is the signature of the contract and thus giving it a coherent external freedom of expression ( objective side ). Expression prior to check compliance citizen ( soldier ) requirements set for entry to professional military service under the contract.

The conclusion of the contract coincides with the moment of giving it effect, that the signature was not a citizen or soldier , and the appropriate official. The said order contract and providing force can not be changed by agreement .

For contract provides a written form approved Regulations of the citizens of Ukraine military service in the Armed Forces of Ukraine . Failure to form a contract does not entail the legal consequences - the rise of military service relations .

The contract establishes the period during which the professional soldier is obliged to undergo military service. Terms of the Law of Ukraine "On Military Duty and Military Service " (p. 23). For soldiers who are professional military service , the contract is the same as specified in the contract for military service.

After the expiration of professional military service and in the absence of grounds for its extension (for example , making a new contract for the passage of professional military service) soldier is subject to discharge from military service .

Contract passage of professional military service provides an environment where the parties are obliged to comply after its conclusion :

a) The duty of a citizen to undergo military service in the Armed Forces of Ukraine and other military formations created in accordance with the laws of Ukraine during the specified contract period;

b) The duty of a citizen in good faith to fulfill all general and specific job duties of military established laws and other legal acts of Ukraine ;

c) The right of a citizen to comply with its rights and the rights of members of his family, including benefits , guarantees and compensations established laws and other legal acts of Ukraine , which set the status of a soldier, the order of the military service.

After admission to professional military service soldier is obliged to pass it within the established term contract in the Armed Forces of Ukraine and other military formations created in accordance with the laws of Ukraine . The soldier has no right to arbitrarily refuse to perform military duties, to change the place of military service , except in due course conclusion of the contract for military service with other ministries ( agencies) executive, which provides for military service.

For failure to perform this duty service member , depending on the nature and severity of the offense , shall be subject to disciplinary or criminal liability.

Conclusion. Contract of military service has administrative and legal nature , and is a particular arrangement that represents accumulated as a result of the coordination of the parties will act bilaterally , which establishes mutual rights and obligations of the participants during the execution of citizens ( military) military duties .
REFERENCES

1. On Military Duty and Military Service : The Law of Ukraine on April 4, 2006 The Voice of Ukraine № 85 dated May 12, 2006

2. On social and legal protection of servicemen and their families : the Law of Ukraine on December 20, 1991 Law of Ukraine on the military . Collection of laws and other legal acts. - K.: Azimuth- Ukraine . - 2003. - 108 p.

3. The Civil Code of Ukraine : As of October 16, 2006 - Kyiv Velez , 2006. - 272 p.

4. On passing the citizens of Ukraine military service in the Armed Forces of Ukraine : President of Ukraine Decree of December 10, 2008 Law of Ukraine on the military . Collection of laws and other legal acts. - K.: Azimuth- Ukraine . - 2003. - 108 p.

5. Labour Code of Ukraine [ At October 16, 2006 ] - K : Velez , 2006. - 96 p.
Пашинський В.Й., Ліхтін В.Ф. Правові аспекти контракту про проходження військової служби

У статті проводиться аналіз законодавства, яке регулює питання проходження військової служби та укладання контракту про проходження військової служби, а також розглядається специфіка та особливості юридичної природи контракту про проходження військової служби як особливої форми угоди.

Ключові слова: військова служба, проходження військової служби, військовослужбовець, контракт, контракт про проходження військової служби.
^ Пашинский В.Й., Лихтин В.Ф. Правовые аспекты контракта о прохождении воинской службы

В статье проводится анализ законодательства, которое регулирует вопрос прохождения воинской службы и заключения контракта о прохождении воинской службы, а также рассматривается специфика и особенности юридической природы контракта о прохождении воинской службы как особенной формы соглашения.

Ключевые слова: воинская служба, прохождение воинской службы, военнослужащий, контракт, контракт о прохождении воинской службы.
Pashinsky V., Lihtin V. Legal aspects of contract military service

The article analyzes the legislation that regulates the issue of military service and a contract for military service, and examines the specifics and peculiarities of the legal nature of the contract of the military service as a special form of the agreement.

Keywords: military service, military service, military, contract, contract for military service.



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