On behalf of the Russian Federation
of December 19, 2018 No. 45-P
On the case of check of constitutionality of part one of article 178 of the Labor Code of the Russian Federation in connection with the claim of the citizen M. V. Trofimova
Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, K. V. Aranovsky's judges, A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, O. S. Hokhryakova, V. G. Yaroslavtsev,
being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
considered in meeting without carrying out hearing case on check of constitutionality of part one of article 178 of the Labor Code of the Russian Federation.
Reason for consideration of the case was the claim of the citizen M. V. Trofimova. The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Russian Federation the legislative provision disputed by the declarant.
Having heard the message of the judge-speaker S. M. Kazantsev, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. According to part one of article 178 of the Labor Code of the Russian Federation in case of termination of the employment contract in connection with liquidation of the organization (Item of 1 part one of article 81 of this Code) or reducing number or staff of employees of the organization (Item 2 parts one of article 81 of this Code) the dismissal wage in the amount of average monthly earnings is paid to the dismissed worker, and also behind it average monthly earnings for employment, but not over two months from the date of dismissal remain (including dismissal wage).
The citizen M. V. Trofimova disputing constitutionality of the given legislative provision on October 12, 2016, being on child care leave up to one and a half years, it was dismissed in connection with liquidation of the organization (OSITs LLC). According to article 178 of the Labor Code of the Russian Federation the dismissal wage in the amount of average monthly earnings was paid to it. Within two months from the moment of M. V. Trofimov's dismissal did not find a job, however could not impose to the former employer requirement about provision by the provided same Article of guarantee in the form of preserving average monthly earnings for employment as the liquidation procedure of OSITs LLC was complete and in the Unified State Register of Legal Entities data on its termination were entered (the decision on entering of the corresponding record into the register is made by interdistrict Inspectorate of the Federal Tax Service No. 19 for the Saratov region on November 16, 2016).
Satisfaction of the administrative action for declaration of M. V. Trofimova about recognition of record about liquidation of OSITs LLC illegal in view of availability at it to outstanding debt before creditors it is refused by the decision of October district court of the city of Saratov of April 11, 2017 with reference to the fact that the liquidation procedure of society was not violated: at the time of approval of the liquidation balance sheet (on November 8, 2016) the creditor congestion was not available for it, the right of the claimant to receipt of average monthly earnings for employment arose not earlier than November 13, 2016. Transfer of the writ of appeal of M. V. Trofimova for consideration in judicial session of court of cassation instance it was refused (determination of the judge of the Saratov regional court of August 3, 2017).
Violation by the disputed legislative provision of the rights guaranteed by Articles 2, 7 and 37 (parts 1 and 3) of the Constitution of the Russian Federation, the citizen M. V. Trofimova sees that in interrelation with the provisions of the Civil code of the Russian Federation and the Federal Law determining procedure for liquidation of the legal entity of August 8, 2001 "About state registration of legal entities and individual entrepreneurs" it allows No. 129-FZ before the expiration of two months from the date of dismissal of the worker in connection with liquidation of the organization employer to complete liquidation of this organization by entering into the Unified State Register of Legal Entities of the corresponding record and by that deprives of the dismissed workers of opportunity to obtain guarantee in the form of preserving average monthly earnings for employment.
Thus, in view of requirements of Articles 74, 96 and 97 Federal constitutional Laws "About the Constitutional Court of the Russian Federation", part one of article 178 of the Labor Code of the Russian Federation are subject of consideration of the Constitutional Court of the Russian Federation of this case so far as on its basis the issue of preserving for the workers of average monthly earnings dismissed in connection with liquidation of the organization for employment, but no more than in two months (including dismissal wage) is resolved if at the time of entering into the Unified State Register of Legal Entities of data on the termination of the organization employer the worker's right to realization of the specified guarantee did not arise.
2. Social nature of the Russian state designed to recognize, observe and protect human rights and freedoms as the supreme value (articles 2 and 7 of the Constitution of the Russian Federation) predetermines need of establishment of sales warranties of the rights of citizens in the field of work to which number the Constitution of the Russian Federation - owing to the fact that stable employment is indispensable condition of providing worthy life and free development of the person, - carries the right of everyone freely to dispose of the capabilities to work, to choose kind of activity and profession, and also right of defense from unemployment (Article 37, parts 1 and 3).
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