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During the marathon of webinars for lawyers at the Higher School of Advocacy on the topic: "Protection of labor and social rights of lawyers" Maksym Panchenko – lawyer, doctor of legal sciences, member of the Committee for the Protection of Lawyers' Rights and Guarantees of Advocacy of the NAAU, member of the Committee on Labor Law of the NAAU, lecturer at the Kyiv National University named after T. Shevchenko and the National Academy of Internal Affairs presented the topic: "Problematic issues of social protection of the lawyer in interaction with the employment center and the pension fund", where he talked about the definition of "employed population" and "unemployed status", analyzed the legal conclusions of the Higher Administrative Court of Ukraine for 2015 , 2018, 2019 and 2021, regarding the receipt of unemployment benefits for a lawyer. I highlighted their features and advantages and disadvantages of their changes for advocacy. He told about reduced pension payments to a retired lawyer.
According to Part 1 of Art. 4 of the Law "On Employment of the Population" the employed population includes persons who work for hire under the terms of an employment contract or under other conditions provided for by law, persons who are self-employed, are in military or alternative service, work abroad on legal grounds and who have income from such employment, as well as persons who study on a full-time or dual form of education in institutions of general secondary, professional (vocational-technical), professional pre-higher and higher education and combine study with work.
According to Article 45 of the Law of Ukraine "On Employment of the Population", the registration of an unemployed person is terminated in the case of, in particular: employment of a person.
A self-employed person is a taxpayer who is an individual entrepreneur or carries out independent professional activity, provided that such person is not an employee within the scope of such entrepreneurial or independent professional activity.
Lawyer activity belongs to independent professional activity, which provides protection, representation and provision of other types of legal assistance to the client.
Legal conclusions of the Higher Administrative Court (dated 04/28/2015), which enabled the lawyer to receive unemployment benefits.
The main was:
- whether the lawyer actually carried out his activities;
- whether he received income from carrying out his activities, and not the fact of obtaining and having a certificate.
However, on May 31, 2018, the decision of 2015 was canceled and a lawyer who has a certificate, according to this decision, can support himself
independently from the moment of receiving various regalia.
The appellate court made a decision on the request of a lawyer who has a valid certificate of the right to engage in legal practice, given the opportunity by law to provide himself with work, as a result of which he is considered a person who provides himself with work independently. He belongs to the employed population and cannot be recognized as unemployed.
The Supreme Court issued a legal opinion as part of the panel of judges of the Cassation Administrative Court in case No. 137/558/17-ts dated October 28, 2019.
So far, this is the only decision in favor of the lawyer in the relationship with the employment center, the court focused on the fact that the lawyer did not have an actual opportunity to practice law.
The court takes into account that the plaintiff almost immediately exercised the right to suspend the certificate of the right to engage in legal practice, which he filed the next day after receiving the certificate. Therefore, the circumstances that led to the loss of the unemployed status were eliminated.
Reduced pension payments to a retired lawyer. Legal conclusions of the Supreme Court
Temporarily, in the period from April 1, 2015 to December 31, 2015: during the period of work of a person (except disabled persons of groups I and II, disabled persons of war of group III and participants in hostilities, persons subject to clause 1 of article 10 of the Law of Ukraine "On the status of war veterans, guarantees of their social protection") in positions that give the right to the appointment of a pension or a monthly lifetime stipend in the manner and under the conditions provided for by the laws of Ukraine "On the status of a people's deputy of Ukraine", "On public service", "On the prosecutor's office ", "On the judicial system and the status of judges", pensions appointed in accordance with this Law are not paid;
During the period of work in other positions/jobs, the pension assigned to a person in accordance with this article (except disabled persons of groups I and II, disabled persons of war of group III and participants in hostilities, persons subject to paragraph 1 of article 10 of the Law of Ukraine "On the Status of War Veterans , guarantees of their social protection"), the amount of which exceeds 150 percent of the subsistence minimum established for persons who have lost working capacity, is paid in the amount of 85 percent of the assigned amount, but not less than 150 percent of the subsistence minimum established for persons who have lost working capacity. After dismissal from work, payment of pension in accordance with this Law is renewed.
The analysis of the specified norm leads to the conclusion that the payment of a pension in the amount of 85% of the appointed one is made only in the case of employment of the pensioner.
Therefore, the first priority is to establish whether the plaintiff works in any jobs/positions, which would give grounds for determining his status as a working pensioner.
According to the Tax Code of Ukraine and Article 31 of the Law of Ukraine "On Advocacy and Advocacy", a lawyer is a self-employed person.
According to the rules of Article 32 of the Law of Ukraine "On Advocacy and Advocacy", the right to practice law is terminated by canceling the certificate of the right to practice law.
The panel of judges came to the conclusion that a lawyer who has a valid certificate of the right to practice law is given the opportunity by law to provide himself with work, that is, a lawyer is a person who provides himself with work independently, belongs to the employed population and cannot be recognized as unemployed. In view of the above, the panel of judges agrees with the conclusions of the appellate court that the defendant is entitled to pay the plaintiff a pension in the amount of 85% of the total amount.