Lavrinenko O. V.,

candidate of jurisprudence, senior lecturer,

Donetsk legal institute of the Ministry of Internal Affairs of Ukraine

Principle of a combination of unity and differentiation of legal regulation of labour relations: a critical sight at scientific approaches to definition and classification of the bases of differentiation

The separate attention at explanation of system of criteria (bases) of differentiation of legal regulation of labour relations, their structurally–specific classification is deserved by terminological aspect as the situation here has developed ambiguous, it is frequent even obviously inconsistent. For example, N.I. Inshin believes, that the differentiation can be caused «objective» and «subjective» factors, thus this scientist carries to «subjective» factors, in particular, «requirements rather sexual–age and physiological features». A similar position occupies, in particular, and H.T. Meleshko. At the same time P.D. Pylypenko takes of an opposite position as postulates in this question, that «is law should to consider the objective circumstances caused by specificity of branches of manufacture, professional, sexual, age features of workers, a site of the enterprises, etc. Which require the special approach to legal maintenance of working conditions», and also thus separately allocates «subject» differentiation which is provided «with an establishment of special working conditions for the women called strenuously to protect a life and health of this category of workers». However, finally, P.D. Pylypenko «objective» differentiations does not name, and writes about «branch, interbranch and local», «subject» and «territorial» differentiations, and «sexual, age and other features of workers» carries to «subject» differentiation. The similar position (regarding the characteristic of the specified basis of «subject» differentiation) is occupied, in particular, with A.A. Snegur. In turn O.M. Jaroshenko, also allocating «subject» differentiation, separately names the «objective» bases of differentiation, and also specifies in existence of the «social» bases taking a certain «intermediate» place between «subject» and «objective» criteria. In our opinion, methodological approaches applied in given cases demand the additional judgement, ordering and is possible — specifications.

Certainly, differentiation in the labour law are established by the legislation and(or) the parties of labour relations on the basis of the difference legislation in the maintenance, volume of those or other rights and duties of subjects of labour relations on the certain bases (factors, criteria). Such bases objectively are rather numerous and the exhaustive quantitative characteristic, by and large, are not subject, that is why their classifications are the extremely necessary, but can have the most various variations. However, that is rather important, it at all does not mean, that any of applied classifications can be carried out with non–observance of a rule of uniform (invariable) criterion of classification of those or other bases of differentiation of legal regulation. For example, and as a whole clear such pair classification criterion, as «subjestive–objective» differentiation, and here use in the specified logic sheaf of such criterion as «subject» differentiation, in our opinion, it is illogical as logically provides application in this case not «objective», but its corresponding «significant other», «antipode» — «objective» differentiation looks logically harmonous. Therefore use by some researchers of «objectively–subject» criterion with a view of the characteristic of directions of differentiation of legal regulation of labour relations it is seen in whole by the illogical. At the same time, here necessarily it is necessary to notice, that is far not always external logic symmetry in construction and definition of terms of systems of criteria (bases) of differentiation to the full corresponds to their not less important internal maintenance, their essence. For example, by O.N. Jaroshenko it is quite proved criticises application by some authors (in particular, N.I. Inshinym, H.T. Meleshko, T.A. Koljadoj, E.S. Reus) such name, as the «subjective» bases in widespread in a science logic criterional to a sheaf «subjestive–objective» differentiation. O.N. Jaroshenko thus explains, that the «objective» bases of differentiation comprise the circumstances which have been not connected with personal qualities of workers, and the «subject» bases of differentiation — comprise the circumstances caused by personal qualities of the worker, and depend on «the properties characterising the person of the subject of labour relations», therefore it is impossible to agree that such differentiation name «subjective». We will add, that, actually, and word etymology «subjective», i.e. that is determined by will and consciousness of the subject(s), it is inadequate (does not answer) essence of many signs which concern adherents of the given approach the «subjective» bases of differentiation of legal regulation (for example, «requirements rather sexual–age features»). Thus, leaves, what exact observance of the above–stated rule of logic at definition criteria of classification conflicts and is actually blocked by ontologic characteristics of applied concepts existing in the right?.. It is represented, that such paradox exists only at cursory examination of the given question. The key to the permission описаной a «paradoxical» situation exists and consists, as to us is thought, in the following.

First, in objectively caused necessity of application in this case not eclectically («mechanically») the various criteria collected together forming certain though also more simple for perception, but, all the same, pseudo the classification system of the bases of differentiation which at more steadfast studying will always have those or other terminological, ontologic and other errors, discrepancies (for example if to structure classification on the «objective», «subject» and «social» bases in some cases «social» can represent as a matter of fact «objective» or «subject» criteria and on the contrary; division of differentiation on «branch», «interbranch» and «local» does not exclude «overlay» on adjacent classification group — «territorial» differentiation).

Secondly, necessities of comprehension of inexpediency of application in the course of definition and the subsequent formulation of the name of separate criteria (bases) of classification of certain «intermediate» («floating») names (for example, the «social» bases of differentiation) as already in itself application of such methodological approach at construction of uniform classification system of the bases of differentiation, especially on primary — general (basic) level, in our opinion, is inadmissible are «loosened» by symmetry of such system, finally, testifying about infringement of a rule of uniform (invariable) criterion of classification. In the course of classification of the bases of differentiation of legal regulation of labour relations, in our opinion, it is expedient to refuse a similar sort of criteria in general. Stated also denies also expediency of existence as separate classification group so–called «mixed», «complex», etc. the bases of differentiation of legal regulation. It is remarkable, that adherents of last approach (in particular, I.V. Shulzhenko) even is proved necessity of «allocation» for the theory of the labour law of a certain short story — «branch–subjective» differentiation, assuming «simultaneous presence of branch and subjective signs». The offered approach, except already noted above terminological defects, as a whole is represented irrational, unduly structurally «overloaded» that is why «is artificial» complicated for its perception. Heating up, mechanically «stringing» thus one criterion («factor») of differentiation on another of anything it is valid in a revolutionary way new, superinformative such typology in a science (theory) does not introduce, and as a matter of fact also is characterised by internal contradictions. Naturally, it does not deny possibilities of existence of the «mixed» criteria in practice (in the legislation), on what fairly pay attention, in particular V.V. Zhernakov, N.I. Inshin, I.JA. Kiselyov, O.N. Jaroshenko.

Thirdly, in necessity of application in this case not simple, i.e. single–level, and the multilevel (difficult) classification system allowing more precisely, correctly and full to carry out group ordering, to order existing various inherently and the nature of the basis of differentiation of legal regulation of labour relations. Let’s tell, on the first — most the general level — all existing bases of differentiation of legal regulation of labour relations to break, by means of elementary terminological opposition, on two initial general (basic) groups, say, «subject» and «not subject», and then on the subsequent — «bottom» — levels to carry out, with obligatory observance on concrete levels (in «horizontal» measurement) rules of uniform (invariable) criterion of group classification, more detailed (intragroup, specific) ordering of the bases entering into structure of these two basic groups of criteria of differentiation. For example, as a part of group of the «subject» bases it is possible to structure both sexual, and age, and a state of health or work capacity, and physiological and many other things the signs–criteria concerning the characteristic of the person of the worker, and in group of the «not subject» bases, for example, on special — the additional intraspecific subcriterion — «a branch accessory» can allocate «intrabranch» and «interbranch» differentiation, or to structure separate versions of «territorial» differentiation of legal regulation of labour relations. However, in any case the bases of classification of those or other criteria of differentiation of legal regulation of labour relations applied in «horizontal» measurement, and, accordingly, the formulation of their names should have uniform and invariable essence, the internal nature. Synthesising, application of simple summation (and as a matter of fact eclectic) the approach in this case is represented inadmissible.