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Length of service through the court controversial issues. Explanations of the Council of Judges of the Russian Federation on the application of the law “On the status of judges in the Russian Federation”

Today, Rossiyskaya Gazeta is publishing a law that includes time spent working as an investigator, prosecutor and lawyer in the length of judicial work, which gives the right to retire and receive the required payments and benefits. According to the authors of this initiative, this approach is designed to attract lawyers of different directions to work in courts.

As representatives of the judicial system told reporters, until now some lawyers have been stopped by the fact that by putting on a robe, they seem to be starting life over again. After all, previous experience expired, and a judge’s pension had to be earned, counting the years almost from scratch.

The law now allows for previous work as an investigator, prosecutor or lawyer to be included in the judicial experience. A judge will also be given credit for serving in the court apparatus in a position requiring a higher legal education. True, all these years will benefit your pension only if the person has been a judge for at least 10 years.

For example, if a person served 5 years as a prosecutor and 15 years as a judge, this would give a total of 20 years of experience. A 10-year minimum, according to the authors of the initiative, will cut off those who will come to judicial positions for a short time, just to quickly grab benefits. By the way, when the law was still being discussed, statistics were published that a third of the judges of the courts of general jurisdiction retiring had worked as judges from 5 to 10 years. Legal scholars have long said that it is extremely important to attract people from different legal specialties to the judiciary. It is impossible for judges to be exclusively former employees of the apparatus or exclusively former prosecutors. No, everyone should have a different legal background, this will benefit both the judiciary as a whole and all of us.

According to legal experts, the ideal option would be for the future judge to work for some time in law enforcement agencies, and then become a lawyer, and only after that put on the robe. Such experience would allow the judge to rise above the fray, and not look at the person with the usual gaze of the prosecutor, human rights activists believe. Nevertheless, until now, the prosecutor's experience was a plus for the judge when calculating the pension, while the lawyer's experience did not give anything. Accordingly, if anyone planned a judicial career for themselves, there was no extra incentive to become a lawyer. It is no secret that the composition of the judiciary is indirectly affected by various pension rules. Who goes to serve depends on how various everyday issues are resolved.

It is curious that several years ago, on the instructions of the Chairman of the Supreme Court of Russia Vyacheslav Lebedev, the work of qualification boards was analyzed. It turned out that in two years, 144 lawyers applied for judicial work. Of these, about 40 people, or every third, received the go-ahead from the qualification boards. According to Vyacheslav Lebedev, this means that there are no obstacles for lawyers on the way to the robe; those who are worthy can receive it. However, it turned out that the lawyers themselves were not eager to take up the robes, the Supreme Court considered. After all, there are more than 60 thousand lawyers working in the country. However, the explanations for why so few of them apply for the judicial exam can be very different. Be that as it may, the law that was published today gives lawyers another incentive to strive to become judges.

How rich are Russian judges? Let's take a look,” suggests Romanova in her article “Why Russian Judges Don’t Acquittal,” published on the website of the Carnegie Moscow Center.

In the 2000s, judges became not just the highest paid, but the highest paid. Today, a judge is the highest paid position in the government apparatus.

The salary of judges consists of five parts. The first is the salary, it is calculated according to the law “On the Status of Judges”, which contains Appendix No. 7. That’s where everything is spelled out, but not in money, but as a percentage of the salary of the Chairman of the Supreme Court of the Russian Federation (the salary of the Chairman of the Supreme Court is tied to the salary of the head of the Constitutional Court: the Chairman of the Supreme Court receives 98% of the salary of the head of the Constitutional Court, and the latter’s salary is approved by the President).

For other judges, the salary is calculated as follows: the salary of the chairman of the Supreme Court is taken as 100%, his first deputy receives 95%, and so on. The bottom line is occupied by a justice of the peace in any territory except Moscow and St. Petersburg - his salary is equal to 60% of what the chairman of the Supreme Court receives according to his position. But his Moscow or St. Petersburg counterpart is 64%.

The second part is the bonus for qualifications. According to the same law, every judge, at least once every three years, is required to undergo advanced training in relevant educational institutions, undergo internships in other courts, and also improve their level in other ways. If the level increases, the bonus will also increase. Where will he go?

That is, in fact, this bonus is similar to a bonus for length of service. But no, the long-service bonus exists separately. This is the third part of the salary.

The fourth part is regular incentives (bonuses), now they have been increased to 1.9 times the salary for the position.

The fifth part is special additional payments that are received by judges who have an academic degree or honorary title, who have confirmed their knowledge of foreign languages and regularly use them in their work, and so on. The bonus is paid in proportion to the salary - for example, its size for a justice of the peace is 1.6 salaries.

Beginning justices of the peace in the regions receive 50–80 thousand rubles a month, then do the math for yourself. A federal judge receives 150–170 thousand rubles a month without bonuses or allowances.

Despite the fact that it is incorrect to compare salaries in countries with different economic structures and standards of living, I will provide data from other countries, since I want to compare not the level of judges’ salaries, but to show the attitude towards different judges in different countries. A judge in Switzerland (about the level of our federal judge) receives the equivalent of approximately 100 thousand euros per year after taxes. But this is a record. Andorra – 70 thousand euros; Norway – 62 thousand euros; Cyprus – 52 thousand euros; Netherlands – 43 thousand euros; Monaco - 41 thousand euros, almost the same in Finland. But this is the top of the list. In Moldova - a little more than two thousand euros per year.

However, nowhere is it said that in other countries judges are provided with free housing, but in Russia there is practically communism in this matter. Housing for Russian judges is provided at the rate of 33 square meters. meters per judge + 18 sq. meters for each family member + 20 sq. meters of additional living space. This is not official housing.

If a judge has work experience of 20 years or more, then he has the right to choose - a pension on a general basis or a lifetime allowance. Lifetime maintenance is a very attractive thing: a person receives 80% of the amount he received while at work every month. True, such content is subject to tax.

You can work for less than 20 years, but only if you reach retirement age. You can also receive lifelong maintenance if you have worked as a judge for 10 years plus at least another 15 years in any other position related to the legal field. Considering that judges are often recruited from prosecutors or investigators, the problem is solvable.

If a citizen has worked as a judge for more than 20 years, then in addition to four-fifths of his monthly salary, he will be paid one percent of the total amount for each overtime year.

And here’s another wonderful thing: starting from 2012, judges’ work experience includes service in the army, time in vocational schools, service in the Ministry of Internal Affairs and other government departments.

That is, lifelong maintenance of a retired judge in the amount of 100 thousand rubles per month is a common thing.

And further. The Judicial Department has recently been allocated additional budgetary allocations to pay retired and active judges a monthly lifetime allowance and a salary supplement in the amount of 50% of the monthly lifetime allowance in the following amounts: 730.5 million rubles in addition to the 2017 cap; 1519.3 million rubles in addition to the maximum volumes of 2018; 1519.3 million rubles in addition to the maximum volumes of 2019.

More than 300 million rubles were allocated for gowns and uniforms in 2013–2015, and 290 million rubles in 2016. More than 13,500 robes, 18 thousand sets of official uniforms, 29,700 shirts (blouses), 6,500 ties and 19,950 pairs of shoes were purchased.

In accordance with this law, a judge is considered an individual with a special status, who can preside over citizens of the state and holds the corresponding professional position.

The pension of judges directly depends on their professional experience. This means that the longer he worked in this position, the greater the pension amount he can count on. Moreover, the same rule applies to salaries. Interest is added to the salary for a certain qualification class, additional payment for length of service, for a professorship, and so on.

For a particular qualified class, the additional payment is calculated as a percentage. So, 30% is awarded for the ninth grade, 40% for the eighth grade, 50% for the seventh grade, and so on. The same applies to salary supplements for length of service. Thus, a judge who has worked in his position from 2 to 5 years receives 15% in addition to his salary, who has worked from 5 to 10 years - 25%, from 10 to 15 years - 30%, from 15 to 20 - 40%, from 20 or more – 50%.

All these factors will further influence the size of the pension of judges in the Russian Federation.

Payment of pension

The pension will be accrued to employees who have retired and to those who have stopped working due to old age.

In these two cases, pension calculation will occur differently.

What is the pension for judges in Russia in 2019: size

A judge who has retired receives a pension on a general basis. In addition, the work experience that a professional worker has also plays an important role. If a judge has 20 years of work experience or more than this figure, then he has the right to make a choice: a pension on a general basis or lifelong maintenance. The latter occurs monthly, is taxed and amounts to funds in the amount of 80% of the amount that the working specialist receives during each month.

Each option depends on whether the judge resigned, resigned, or was fired. It is impossible to receive lifelong maintenance if the former judge has little work experience (according to the legislation of the Russian Federation - less than 20 years). In this case, a pension will be issued for such a person, which is accrued to the majority of citizens of the country in accordance with the law on the calculation of pensions in the usual manner.

All about lifelong imprisonment for former judges

To obtain such a privilege, a legal professional will have to fulfill a number of conditions. This includes experience exceeding 20 years in this position.

There is an exception when it is possible to circumvent the law on a certain length of service. You can work for less than 20 years, but only if you reach retirement age. Or a judge who has reached retirement age and has worked in the position for at least 10 years, plus at least another 15 in any other position related to the legal field.

So how much do former judges get as a pension?

Four-fifths of the monthly salary are received by citizens who have worked for at least 20 years as a judge or up to 10 years plus 15 years in the legal field in another profession.

Citizens who have worked as a judge for less than 20 years, but have reached retirement age, are awarded a pension in direct proportion to the years during which they worked.

If a citizen has worked as a judge for more than 20 years, then in addition to four-fifths of his monthly salary, he will be paid one percent of the total amount for each additional year he worked.

Please note that it is impossible to work and receive lifelong maintenance. In addition, you cannot apply for and receive several types of pensions at once. But this does not include pensions paid due to disability.

The procedure for processing documents to obtain PSS

To apply for lifelong security, you must contact the competent authority that is tied to the place where you are employed.

The following documents will be required:

application for registration of life security;

passport (or other documents confirming the identity of a citizen);

documents that confirm work experience as a judge or other legal specialties (such documents primarily include a work book), various titles and assigned classes.

SUPREME COURT OF THE RUSSIAN FEDERATION

DEFINITION

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, consisting of:

presiding P.,

judges G. and K.

considered in open court on July 20, 2015 a civil case based on S.’s claim against the Main Directorate of the Ministry of Internal Affairs for the Chelyabinsk Region, the Department of the Ministry of Internal Affairs of the Russian Federation for the city of Miass, Chelyabinsk Region, to declare illegal the refusal to grant a pension for long service

on the cassation appeal of the representative of the Main Directorate of the Ministry of Internal Affairs of the Russian Federation for the Chelyabinsk Region, by proxy I. on appeal definition Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court dated September 11, 2014

Having heard the report of the judge of the Supreme Court of the Russian Federation P., the explanations of the representatives of the Main Directorate of the Ministry of Internal Affairs of the Russian Federation for the Chelyabinsk Region M. and I., who supported the arguments of the cassation appeal,

Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation

installed:

S. filed a lawsuit against the Main Directorate of the Ministry of Internal Affairs of the Russian Federation for the Chelyabinsk Region (hereinafter - the Main Directorate of the Ministry of Internal Affairs of the Russian Federation for the Chelyabinsk Region), the Department of the Ministry of Internal Affairs of the Russian Federation for the city of Miass, Chelyabinsk Region (hereinafter - the MVD of Russia for the city of Miass ) on recognizing illegal the refusal to satisfy the report of S. recognizing the right to receive a pension for long service, imposing the obligation to assign a pension for long service from April 11, 2014.

In support of the stated requirements, S. indicated that in November 1994 he was called up for military service and during the period of service from October 25, 1995 to January 27, 1996, from April 24, 1996 to October 1, 1996. participated in the liquidation of illegal armed groups in the Chechen Republic, is a combat veteran. Subsequently, he served in the internal affairs bodies and on February 14, 2014 he submitted a report on his dismissal from service due to clause 4, part 2, art. 82 Federal Law "On Service in the Internal Affairs Bodies of the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation" in connection with his retirement based on length of service, but his report was denied due to his lack of the required length of service - 20 years or more. From the calculation of S.’s length of service presented by the employer, it followed that the periods of S.’s service in the Armed Forces of the Russian Federation from October 25, 1995 to January 27, 1996 and from April 24, 1996 to October 1, 1996 were included on a calendar basis , so the length of service was 18 years 7 months 13 days. S. considered the refusal to satisfy the report to be illegal, since the time of his participation in hostilities in the Chechen Republic during the indicated periods is subject to inclusion in his length of service on a preferential basis - at the rate of 1 day of service for 3 days, and therefore his length of service as of 14 February 2014 is 20 years 1 day and he is entitled to receive a long service pension.

Representatives of the defendants did not admit the claim in court.

By the decision of the Miass City Court of the Chelyabinsk Region dated June 6, 2014, S.’s claim to invalidate the refusal to grant a pension for long service was denied.

The grounds for canceling or changing court decisions in cassation are significant violations of substantive law or procedural law that influenced the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms and legitimate interests, as well as the protection of public interests protected by law ( Art. 387 Civil Procedure Code of the Russian Federation).

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation comes to the conclusion that in the present case of this nature, significant violations of the norms of substantive law were committed by the court of appeal and were expressed in the following.

The court established and follows from the case materials that S. served in conscription during the period from November 1994 to November 1996, from October 25, 1995 to January 27, 1996 and from April 24, 1996 to 1 October 1996, he participated in the liquidation of illegal armed groups on the territory of the Chechen Republic, which is confirmed by the entry on his military ID.

Since June 16, 1997, S. served in the internal affairs bodies, since February 7, 2013 - in the position of ... Department of Internal Affairs of Russia for the city of Miass.

On April 10, 2014, S. was dismissed from service in the internal affairs bodies due to clause 1 part 2 art. 82 Federal Law of November 30, 2011 N 342-FZ “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation” by agreement of the parties.

In satisfying S.’s report on dismissal from service in the internal affairs bodies for clause 4, part 2, art. 82 Federal Law of November 30, 2011 N 342-FZ "On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation" (on length of service giving the right to receive a pension) was denied due to insufficient length of service for assignment of pension.

Moreover, the entire period of S.’s service in the army, including the controversial periods from October 25, 1995 to January 27, 1996, from April 24, 1996 to October 1, 1996, were included in his length of service in the calendar calculation (1 year 11 months 15 days), in connection with which his length of service at the time of dismissal from service in the internal affairs bodies on April 10, 2014 was 18 years 9 months 9 days.

Resolving the dispute and refusing to satisfy S.’s claims, the court of first instance proceeded from the fact that the procedure for preferential calculation of the duration of military service (service in internal affairs bodies) and the grounds for its application are established in Resolution Council of Ministers - Government of the Russian Federation dated September 22, 1993 N 941 "On the procedure for calculating length of service, assigning and paying pensions, compensation and benefits to persons who served in military service as officers, warrant officers, midshipmen and long-term servicemen or under contract as soldiers, sailors, sergeants and foremen or service in internal affairs bodies, the State Fire Service, institutions and bodies of the penal system, and their families in the Russian Federation" (hereinafter referred to as Resolution of the Council of Ministers - Government of the Russian Federation of September 22, 1993 N 941), which do not provide for the possibility of preferential calculation of the period of service for conscripts during a state of emergency and during armed conflicts.

Since S.’s military service on the territory of the Chechen Republic was carried out by conscription, and not by contract (no evidence to the contrary was presented to the court), the court came to the conclusion that the disputed periods of the plaintiff’s military service were rightfully counted by the defendant as length of service in the calendar, and not in the preferential calculus.

The appellate court did not agree with the conclusion of the first instance court and made a new decision in the case to satisfy S.’s claim based on the following arguments.

By virtue of Part 1 Art. 2 Law of the Russian Federation of January 21, 1993 N 4328-1 “On additional guarantees and compensation for military personnel serving in the Transcaucasus, the Baltic States and the Republic of Tajikistan, as well as performing tasks in conditions of emergency and in armed conflicts” (hereinafter referred to as the Law Russian Federation dated January 21, 1993 N 4328-1) for military personnel undergoing military service under a contract in the territories of the Transcaucasian states, the Baltic states and the Republic of Tajikistan, for the purpose of a pension in accordance with the legislation on pension provision for military personnel, one month of military service per month is counted towards the length of service one and a half months.

For military personnel performing tasks in a state of emergency and during armed conflicts, one month of military service in three months is counted towards the length of service and length of service for the purpose of granting a pension ( Part 2 Art. 2 of the said Law).

The procedure for calculating length of service for granting a pension has been determined Resolution Council of Ministers - Government of the Russian Federation dated September 22, 1993 N 941, clause 5 which stipulates that military service upon conscription as soldiers, sailors, sergeants and foremen (previously - compulsory military service), except for periods subject to credit for length of service on preferential terms provided for military personnel of military units, headquarters and institutions of the active army, military personnel who served or were in captivity during the Great Patriotic War, who took part in the work to eliminate the consequences of the accident at the Chernobyl nuclear power plant, or who were unjustifiably prosecuted or repressed, are counted towards the length of service for the purpose of pensions in calendar terms.

According to the court of appeal, from the content of the above provisions of the specified normative legal acts, it follows that all military personnel who served in conscription, military service is subject to credit in calendar terms, except for periods subject to credit for length of service on preferential terms, and to which, within the meaning of Part 2 Art. 2 Law of the Russian Federation of January 21, 1993 N 4328-I, refers to the period of performance of tasks by military personnel who served in conscription in a state of emergency, that is, their actual participation in hostilities during an armed conflict.

Taking into account that S.’s actual participation in hostilities during the armed conflict in the Chechen Republic in the periods from October 25, 1995 to January 27, 1996, from April 24, 1996 to October 1, 1996, that is, the passage him of compulsory conscription service under special conditions, confirmed in the prescribed manner, the court of appeal came to the conclusion that there were legal grounds for counting his length of service for assigning S.’s pension for the length of service of the specified period of his military service in conscription in a preferential calculation based on one month of military service in three months.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds the conclusions of the appellate court erroneous, based on the incorrect application and interpretation of the rules of substantive law governing disputed relations.

Law of the Russian Federation of January 21, 1993 N 4328-I, which the appellate court refers to in support of its conclusions, does not regulate the issues of pension provision for military personnel, but establishes only the general conditions of a unified system of their legal and social protection, which are specified in other regulatory legal acts acts.

In particular, by law Russian Federation dated February 12, 1993 N 4468-I “On pension provision for persons who served in military service, service in internal affairs bodies, the State Fire Service, authorities for control of the circulation of narcotic drugs and psychotropic substances, institutions and bodies of the penal system , and their families" (hereinafter referred to as the Law of the Russian Federation of February 12, 1993 N 4468-I) and the Federal by law dated December 17, 2001 N 173-FZ “On Labor Pensions in the Russian Federation” (hereinafter referred to as the Federal Law “On Labor Pensions in the Russian Federation”) established a differentiated procedure for preferential calculation of length of service and seniority of military personnel performing tasks in a state of emergency and in armed conflicts.

Pension provision for employees of internal affairs bodies and military personnel, including the calculation of length of service for the purpose of pensions, is regulated by law Russian Federation dated February 12, 1993 N 4468-I.

IN article 1 The Law of the Russian Federation of February 12, 1993 N 4468-I lists the persons who are subject to this Law, in particular for persons who served in military service as officers, warrant officers and midshipmen or military service under contract as soldiers, sailors, sergeants and foremen in the Armed Forces of the Russian Federation, other military formations of the Russian Federation created in accordance with the legislation of the Russian Federation, and the families of these persons.

By virtue of Art. 2 Law of the Russian Federation of February 12, 1993 N 4468-I pension provision for persons who served in conscription as soldiers, sailors, sergeants and foremen (previously - active military service) in the armed forces and military formations specified in item "a" art. 1 of this Law, and the families of these persons is carried out in accordance with the Federal by law dated December 15, 2001 N 166-FZ "On state pension provision in the Russian Federation."

According to Part 3 Art. 18 Law of the Russian Federation of February 12, 1993 N 4468-I, the procedure for calculating length of service for assigning pensions to persons specified in Art. 1 of this Law is determined by the Government of the Russian Federation.

First paragraph, paragraph 5 Resolution of the Council of Ministers - Government of the Russian Federation dated September 22, 1993 N 941, issued in pursuance of the requirements Law of the Russian Federation dated February 12, 1993 N 4468-1, it is established that military service upon conscription as soldiers, sailors, sergeants and foremen (formerly conscript military service), except for periods subject to credit towards length of service on preferential terms provided for for military personnel of military units, headquarters and institutions of the active army, military personnel who served or were in captivity during the Great Patriotic War, who took part in the work to eliminate the consequences of the Chernobyl nuclear power plant accident, or who were unjustifiably prosecuted or repressed, is counted towards the length of service for assignment of pensions in calendar terms.

In accordance with Part 4 Art. thirty The Federal Law "On Labor Pensions in the Russian Federation" periods of service in military units, headquarters and institutions that are part of the active army, in partisan detachments and formations during hostilities, as well as the time spent in treatment in medical institutions due to military trauma, periods military service in the exclusion zone determined in accordance with by law Russian Federation dated May 15, 1991 N 1244-1 “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant” are included in the total length of service in triple the amount.

Point 2 Resolution of the Supreme Council of the Russian Federation of July 21, 1993 N 5481/1-I "On the procedure for enacting the Law of the Russian Federation "On Amendments to the Law of the Russian Federation "On Additional Guarantees and Compensations for Military Personnel Doing Military Service in the Territories of the Transcaucasian States, Baltic states and the Republic of Tajikistan, as well as those performing tasks to protect the constitutional rights of citizens in states of emergency and during armed conflicts" it is indicated that when applying Part 2 Art. 2 Law of the Russian Federation of January 21, 1993 N 4328-I “On additional guarantees and compensation for military personnel serving in the Transcaucasus, the Baltic States and the Republic of Tajikistan, as well as performing tasks in a state of emergency and during armed conflicts” for the purpose of calculating labor length of service for the purpose of pensions in accordance with Article 94 The Law of the RSFSR "On State Pensions in the RSFSR" military personnel performing tasks in a state of emergency and during armed conflicts are considered to be serving in the active army.

From the content of the above regulations it follows that for military personnel undergoing military service under a contract and performing tasks in a state of emergency and during armed conflicts, the period of service is counted as length of service in accordance with by law Russian Federation dated February 12, 1993 N 4468-1. For military personnel performing similar tasks upon conscription during the period of performing tasks in a state of emergency and during armed conflicts, the period of service is counted at a preferential rate (triple amount) in the length of service in accordance with the Federal by law"On labor pensions in the Russian Federation."

Thus, the court of first instance, in resolving the dispute, unlike the appellate court, correctly proceeded precisely from this interpretation of the norms of substantive law to be applied to disputed relations, and therefore did not rightfully count the periods of his participation in the length of service in the preferential calculation of S. in the liquidation of illegal armed groups on the territory of the Chechen Republic, since he served in conscription.

The panel of judges considers the conclusions of the court of first instance that there are no grounds for satisfying S.’s claims in accordance with the provisions Law Russian Federation dated January 21, 1993 N 4328-I, Law Russian Federation dated February 12, 1993 N 4468-I and Regulations Government of the Russian Federation dated September 22, 1993 N 941, since the rule on preferential calculation of length of service and work experience of all military personnel performing tasks in a state of emergency and during armed conflicts should be applied differentially, that is, depending on whether military service took place under a contract or by conscription, namely: for military personnel who served under a contract and performed tasks in a state of emergency and during armed conflicts, the period of such service is counted in a preferential calculation as length of service, and for military personnel who performed similar tasks under conscription - in preferential calculation for length of service.

In view of the above, the decision of the court of appeal, which recognized for S. the right to a pension for long service, including in the length of service for the purpose of assigning a pension the periods of participation in hostilities from October 25, 1995 to January 27, 1996, from April 24, 1996 until October 1, 1996, in preferential terms - based on 1 day of service for 3 days, cannot be considered legal. It was adopted with a significant violation of the norms of substantive law, which influenced the outcome of the case; without its elimination, restoration and protection of the violated rights and legitimate interests of the Main Directorate of the Ministry of Internal Affairs of Russia for the Chelyabinsk Region is impossible, which, according to Art. 387 of the Civil Procedure Code of the Russian Federation, is the basis for canceling the appealed court decision and upholding the decision of the Miass City Court of the Chelyabinsk Region dated June 6, 2014, when the court correctly applied the norms of substantive law to controversial relations.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, guided by Art. 387 , 388 , 390 Civil Procedure Code of the Russian Federation,

determined:

appeal definition Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court dated September 11, 2014 to cancel.

________________________________________________________________________________

Note: Thus, the ruling of the Supreme Court of the Russian Federation dated July 20, 2015 No. 48-KG15-6 established the legal position according to which periods of compulsory military service on conscription, during which military personnel take part in the liquidation of illegal armed groups in the territory of the North Caucasus region , KTO (combat operations) are counted towards length of service for the purpose of a pension through the Ministry of Internal Affairs of Russia in calendar terms. The specified periods are not subject to credit towards length of service on preferential terms.

Yu.O. Verbitskaya, lawyer, MU "Center for Accounting and Logistics Support"
municipal educational institutions of the Verkh-Isetsky district"

Journal "Accounting in Education" No. 10, October 2011

As a general rule, the employee himself proves that a certain period of work is included in the length of service for the purpose of assigning a long-service pension. But the employer must know how to properly prepare documents for the teacher.

Who is entitled to a long-service pension?

Teaching staff, subject to certain conditions, have the right to receive an early pension. A long-service pension is an old-age labor pension assigned before reaching retirement age (55 years for women and 60 years for men). This pension is assigned in accordance with subparagraph 19 of paragraph 1 of Article 27 of the Law of December 17, 2001 No. 173-FZ “On Labor Pensions in the Russian Federation” to persons who have carried out teaching activities in institutions for children for at least 25 years, regardless of their age.

At first glance, this is a simple situation. But in the practice of its application, two questions arise: what can be considered pedagogical activity and what organizations can be considered institutions for children?

The list of professions and institutions in which work is counted as special length of service was approved by Decree of the Government of the Russian Federation of October 29, 2002 No. 781. Before this, another list was in force, approved by Resolution of the Council of Ministers of the RSFSR dated September 6, 1991 No. 463. It should be used as a guide when making appointments. pensions for periods before November 14, 2002 (date of entry into force of the new List).

Not all experience is taken into account - there are restrictions

The rules for calculating special work experience were approved by Decree of the Government of the Russian Federation of July 11, 2002 No. 516.

These rules establish that only periods of work performed continuously during the working day are counted as special work experience, subject to payment of insurance contributions to the Pension Fund of the Russian Federation for these periods. For teaching staff, this means that they had to work hours in accordance with their rate (it differs for different teaching staff, for example, for school teachers - this is 18 hours a week, including primary school teachers, previously they had a rate of 20 hours ).

The length of service includes periods of receiving state social insurance benefits during periods of temporary disability, as well as periods of annual basic and additional paid leave.

Work experience is not included periods of suspension from work due to the fault of the employee, as well as periods of downtime (both due to the fault of the employer and the fault of the employee). In addition, special experience does not include the period of parental leave (Part 5 of Article 256 of the Labor Code of the Russian Federation). The exception is cases when the specified period occurred before October 6, 1992, that is, before the entry into force of Federal Law No. 3543-1 of September 25, 1992, with the adoption of which the specified period ceased to be included in the special length of service in the case of a pension. on preferential terms (decision of the Supreme Court of the Russian Federation dated July 1, 2011 No. 41B11-10, determination of the Supreme Court of the Russian Federation dated March 5, 2009 No. 19-B09-2).

The employer's mistake can be corrected through court

The courts are considering many cases to “rehabilitate” the experience of teachers. The defendant in claims, as a rule, is the Pension Fund of the Russian Federation. Pension Fund specialists interpret the regulations quite strictly. And the courts often make decisions in favor of the plaintiffs. That is, they confirm the legality of including a certain period of work in the length of service giving the right to a long-service pension.

An analysis of such cases shows that in most cases, Pension Fund officials do not accept controversial periods of work due to the fault of the employer, since the institution incorrectly indicates the name of the position. That is, the position of a teaching worker indicated in the work book does not coincide with the position established in the list.

In this case, you can advise the employee to go to court to establish the fact of fulfillment of labor duties for the position specified in List No. 781. Then it is necessary to prove not that the employee’s position corresponds to the position specified in List No. 781, but that it was indicated wrong. But at the same time, the employee performed the labor functions of a pedagogical worker in a position that met the established requirements (decision of the Supreme Court of the Russian Federation of November 12, 2009 No. 49-B09-13).

Also pay attention to paragraph 9 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 2005 No. 25 “On some issues that arose in the courts when considering cases related to the exercise by citizens of the right to labor pensions.” It notes that if a citizen disagrees with the refusal of the pension authority to include in the special length of service the period of his work, which, in the plaintiff’s opinion, should be counted, it must be taken into account that the question of the type (type) of the institution (organization), the identity of the functions performed by the plaintiff, conditions and the nature of the activity of those jobs (positions, professions) that give the right to early assignment of an old-age labor pension must be decided by the court based on the specific circumstances of each case established at the court hearing (the nature and specificity, conditions of the work performed by the plaintiff, the functional duties performed by him positions and professions held, workload, taking into account the goals and objectives, as well as the areas of activity of the institutions, organizations in which he worked, etc.).

Therefore, we will not give examples of specific “wrong” positions that were recognized as similar to positions from List No. 781, since in each individual case the issue can be resolved by the court differently (in one case, for example, a physical education instructor may be recognized as a teaching worker, in another - not).

The most important thing is to collect as much evidence as possible that the employee performed duties precisely for the position that is in List No. 781, although another position is erroneously indicated in the work book. Certificates from the education department, witness statements, and other similar documents can help here.

Equality of positions

In a number of cases, the identity of professions and positions is established normatively. Thus, the positions of a teacher are identical to the positions (order of the Ministry of Health and Social Development of Russia dated July 5, 2005 No. 440):

– school group teacher;

– school teacher;

– preschool teacher;

– speech therapy group teacher;

– speech group teacher;

– teacher of a special (correctional) group;

– correctional group teacher;

– teacher of the correction group;

– school boarding school teacher;

– teacher of an extended day group;

– boarding school teacher (at school);

– nursery teacher;

– kindergarten teacher;

– teacher of a sanatorium group;

– teacher of a boarding group;

– teacher of the preparatory group.

The position “music worker” corresponds to the position of music director (Resolution of the Ministry of Labor of Russia dated June 23, 2003 No. 39).

When deciding which court to go to, you need to proceed from the following. If he makes only a property claim, the price of which does not exceed 50 thousand rubles. (for example, when collecting an assigned but not paid labor pension), you should contact the magistrate. If a non-property claim is presented (for example, cases of disputes arising in connection with the refusal to establish a labor pension) or both, then such cases are subject to the jurisdiction of the district court.

A citizen’s application for a dispute related to the exercise of his right to a labor pension is submitted to the court at the location of the relevant pension authority (which refused to grant a pension or paid the pension).

As for continuing to work after receiving a long service pension, the law does not prohibit this. The fact of granting a pension does not mean the termination of the employment relationship. The employee can continue to go to work, and no additional documents need to be completed.

Important to remember

When developing a staffing table and indicating employee positions (both in orders and in work books), it is necessary to use legally established names.

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