Volume 04 Issue 12-2024
44
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
12
P
AGES
:
44-49
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article explores the intersection of labor and administrative law in the regulation of public service relationships,
emphasizing the distinctions and overlaps between labor contracts and service contracts. The author highlights that
while labor law has a private legal nature and is characterized by equality between parties, public service relations are
rooted in administrative law, reflecting the subordination of public servants to the state and serving public interests.
The article examines the nature and features of service contracts, presenting them as administrative-legal instruments
crucial for public service regulation. Scholars' differing perspectives on whether service contracts should be classified
under labor or administrative law are discussed. The study also considers the legislative frameworks in Uzbekistan and
other countries, suggesting reforms to align service contracts more closely with administrative law.
Additionally, the concept and characteristics of administrative contracts are analyzed, with comparative insights
drawn from European legal systems. The author advocates for legislative amendments to recognize service contracts
as a distinct category within administrative law, ensuring a more precise legal framework for public service regulation.
This work contributes to the scholarly debate on the legal regulation of civil service by providing a comprehensive
analysis of service and administrative contracts, highlighting their significance in public administration.
KEYWORDS
Public service regulation, Administrative law, Public servant, Service contract, Civil service relations.
INTRODUCTION
Research Article
THE ADMINISTRATIVE-LEGAL NATURE OF THE SERVICE CONTRACT IN
THE PROCESS OF CIVIL SERVICE EXECUTION
Submission Date:
December 07, 2024,
Accepted Date:
December 12, 2024,
Published Date:
December 17, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue12-07
Sardorjon Rakhmonov
Independent researcher of Tashkent State University of law, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 04 Issue 12-2024
45
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
12
P
AGES
:
44-49
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
One of the most pressing issues in the legal regulation
of the public service process is related to regulating
this process within the domain of labor law or
administrative law. It should be emphasized that the
most intersecting point between administrative and
labor law specifically pertains to civil service relations.
Several scholars (S.A. Ivanov, A.M. Kurennoi, S.P.
Mavrin, E.V. Khokhlov, L.A. Chikanova) consider the
relationship between a public servant and a state div
to fall within the scope of labor law relations.
Accordingly, they emphasize that such relations should
be regulated by the norms of labor legislation, taking
into account the specific features outlined in special
laws on public service. G.S. Skachkova interprets
contracts concluded with public servants as a type of
labor contract with an administrative-legal character.
In general, these contracts have two features: first, the
individual enters into labor relations as an ordinary
citizen when joining civil service, and second, after
joining the civil service, they acquire administrative-
legal relations by assuming the authority of the state
div.
A representative of labor law, R.Z. Livshits, emphasizes
that labor law is a field that branched out from civil law,
while not denying that administrative law is one of the
legal fields most closely related to labor law.
Other scholars (Yu.A. Starilov, A.A. Grishkovets, A.F.
Nozdrachyov) consider the service contract to possess
administrative-legal elements. This approach is based
on the premise that public service is an integral system
founded on public law, representing an institution of
public law.
B.N. Gabrichidze emphasizes that the administrative
legal norms regulating public service and the labor law
norms governing the procedures for entering and
performing
public
service
are
so
closely
interconnected that it is sometimes difficult to draw
clear boundaries between them. He asserts that this
field should be regulated from an administrative legal
perspective.
It should be added that the essence of the issue
regarding the interconnection between administrative
and labor law lies in the method that should be applied
to regulate the work of public servants. In other words,
the legal regulation of public service is based on a
combination of imperative and dispositive approaches.
Today, labor law is increasingly adopting a dispositive
character. However, civil service is leaning more
toward an imperative approach. In the civil service,
additional social guarantees are provided by
establishing specific restrictions, which help prevent
conflicts of interest and corruption.
A significant part of the legal provision for public
servants involves employees of the state’s executive
bodies, which fall within the regulatory domain of
administrative law. This creates a need for
administrative-legal regulation in this area.
In our opinion, the relations governing the
performance of public service should be regulated by
administrative law, and this can be justified as follows:
Firstly, these relations are directly connected with the
subjects of administrative law, including executive
authorities and officials.
Secondly, these relations are linked to key institutions
of administrative law, such as administrative justice
and public service.
The legal relations within public service are those
between the state as an employer and the public
servant. During the execution of these legal relations,
a specific function of state policy is implemented.
Public-service relations must be distinct from labor
Volume 04 Issue 12-2024
46
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
12
P
AGES
:
44-49
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
relations. Labor legal relations are of a private legal
nature, and their subjects are equal in status. For labor
relations to arise, the legal fact of concluding and
signing a single labor contract is sufficient. The entry
into force of a labor contract marks the point at which
a citizen obtains the status of an employee and,
therefore, must adhere to the organization's internal
labor regulations and work regime.
Public-service relations, on the other hand, are
administrative legal relations. Unlike labor relations,
which are based on private interests, public-service
relations serve the implementation of state and public
interests. The parties to such legal relations are not
equal in terms of authority; the public servant is
subordinate to the state.
The key differences between public civil service and
labor law primarily relate to the distinctions between
labor contracts and service contracts. This has led to an
increased need for scientific research into service
contracts.
In the scientific literature, the following distinctive
features of service contracts are noted:
•
Concluding a service contract is mandatory for
every citizen entering public service. Failure to
conclude the contract results in liability.
•
The service contract is considered an act that
establishes the legal fact of entering public service and
regulates the rights and obligations under public
service legislation.
•
Although a service contract is a form of
contractual relationship, its main requirements are
defined by the state authority.
•
The service contract specifies personalized
terms of public civil service relations.
•
An essential condition of the service contract is
that it must not deviate from the legislation governing
public civil service.
According to A.A. Osin, a service contract is a
temporary relationship. It primarily imposes an
obligation to comply with the legislation on public civil
service. Overall, it serves as a confirmation of consent.
This opinion can be partially agreed with. However, the
service contract should not be viewed solely as a
means of confirming the fulfillment of an obligation.
Although A.V. Gusev does not prohibit the inclusion of
additional terms in the service contract that do not
worsen the condition of the public servant, the actual
possibility of applying such terms is very limited. In this
regard, it is difficult to expect that the contract will
become an effective means of encouraging the
efficiency of employees' professional activities. In our
opinion, a service contract can be viewed both
positively and negatively. It both restricts rights and
protects them at the same time.
It is emphasized by S.E. Channov that a service contract
is considered a true expression of the intent to perform
the service. From a legal point of view, this opinion can
be agreed with. L.A. Chikanova believes that the party
to a service contract should not be “abstract” and the
inclusion of the state as a party to the contract
increases its ambiguity. In this case, the scholar
approached the issue from a general perspective.
It should be emphasized that approaches to the service
contract are of various natures. The main reason for
this is that the legislative basis for this relationship is
not perfect. Usually, the legislator tries to solve this
issue through labor contracts.
Another distinctive feature of the service contract is
related to its conclusion and termination. The issues of
concluding and terminating the service contract have
Volume 04 Issue 12-2024
47
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
12
P
AGES
:
44-49
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
two aspects: material and procedural. From the
material-legal side, it involves clarifying the legal
essence of the concepts of “concluding” and
“terminating” the service contract, as well as their
legislative foundations and principles.
From the procedural-legal side, it concerns the
procedure for the actions carried out by the employer's
representative and public servants in concluding and
terminating service contracts.
Acceptance into public service is a complex legal
structure, and as a result of this process, an
administrative-legal relationship arises. This can be
clarified through the elements of the service contract.
The service contract includes elements such as
participation in the selection for entering civil service,
the issuance of an act by the employer, and the
conclusion of the service contract.
The service contract is concluded in the following
stages:
Submitting the relevant documents to the government
agency;
Presenting the draft service contract to the citizen and
familiarizing the citizen with the official rules, service
regulations, and other documents that regulate the
performance of duties by the public servant;
Confirming the terms of the service contract;
Signing the service contract and its entry into legal
force.
Based on the above, the service contract can be
divided into the following types: primary and new. The
primary service contract is concluded with a citizen
who is entering public service for the first time, thus
the citizen acquires the special legal status of a public
servant when concluding the primary service contract.
A new contract implies the continuation of the citizen's
public service but does not involve changing positions.
At this point, it is worth noting that according to the
Law of the Republic of Uzbekistan on "State Civil
Service", the relations regarding the passage of public
civil service are regulated by a labor contract. As
analyzed above, state service relations are not suitable
to be studied within the scope of labor law. Therefore,
the second part of Article 33 of the Law should be
amended as follows: “Public civil service is carried out
based on a service contract”.
It is important to emphasize that another crucial aspect
of regulating public service relations is related to
administrative contracts. Administrative contracts
have been used in daily relations for a long time, and
the experience of countries where their existence is
undisputed can always be very beneficial. In many
Western European countries, most administrative
contracts concluded on behalf of government
agencies go beyond private law norms. These
contracts are administrative contracts, which
correspond to various norms of the obligation law in
civil and partially commercial codes. The majority of
contracts concluded by the French administration are
called administrative contracts, and although they are
regulated by the general (civil) law and commercial
law, they have characteristics that take them out of the
realm of private law. In France, for a contract to be
classified as administrative, it must have at least one of
two characteristics: it must either contain specific
conditions that take it out of the scope of private law
or aim to regulate public service.
Paragraph 62 of the German Administrative Procedure
Code is dedicated to administrative contracts,
specifying the possibility of using certain provisions of
the Civil Code that complement and clarify the legal
Volume 04 Issue 12-2024
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International Journal Of Law And Criminology
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
regulation of administrative-contractual relations. The
administrative procedural law defines only the basic
principles of the administrative contract. In general, in
some European countries, legislative consolidation for
the application of administrative contracts has been
developed.
In legal literature, the term "administrative contract" is
generally used to designate the relevant relations
between a state div and a citizen, and the term
"administrative contract" is used to designate such
relations between two collective subjects of
administrative law. In the cases under consideration,
the mere presence of certain elements of a contractual
nature justifies using the term "administrative-legal
contracts" for generalized designation. At the same
time, the contract not only contains the usual elements
for labor relations but also defines executive functions
and their corresponding scope of authority, which are
highly significant from both an administrative and legal
perspective.
According to general legal theory, the following
general principles of a contract exist: 1) the
dispositiveness of legal regulation (freedom of
contract terms); 2) the autonomy of the parties' will
(voluntary agreement); 3) the formal legal equality of
the contracting parties; 4) equality of rights; 5) mutual
responsibility of the parties. These general principles of
contract law, based on the specific characteristics of
administrative-legal regulation, are applied to
administrative contracts with certain limitations. These
characteristics are mentioned in the definition of
administrative contracts provided by various scholars.
D.N. Bakhrach defines an administrative contract as an
agreement based on administrative-legal norms,
where the state always participates as a party. It is
developed as a result of the voluntary coordination of
the will of the parties and establishes mutual rights and
obligations.
The
most
comprehensive
definition
of
an
administrative contract is given by V.A. Yusupov, who
defines an administrative contract as an agreement
between two or more subjects established by
administrative legal norms, one of which must be a
state administration div or its legal representatives.
This contract is aimed at determining, altering, or
terminating the administrative rights and obligations
of state administration bodies, the subjective property
or non-property rights of citizens, and their social
structures.
Based on the above, the following characteristics of an
administrative contract can be distinguished:
•
Administrative contracts generally have an
organizational structure, and their purpose is to
achieve results of social importance.
•
Within the scope of an administrative contract,
the relationship between the parties is not based on
subordination, meaning it is formed between
administrative law subjects.
•
An administrative contract is not an absolute
form of public administration but an action.
•
The normative basis of administrative-
contractual practice is not civil law, but the norms of
administrative law.
In conclusion, it should be emphasized that the service
contract is a form of administrative contract, and
incorporating this concept into the current legislation
is crucial for regulating the process of civil service in a
legal framework.
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Volume 04 Issue 12-2024
49
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
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P
AGES
:
44-49
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
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