Definition of the concept of "self-employed" and its historical development

Poluyan Dmitrii Anatol'evich ORCID: 0000-0003-4434-0923 Postgraduate student; Department of Commercial Law; Federal State Budgetary Educational Institution of Higher Education 'St. Petersburg State University' 196084, Russia, Saint Petersburg, Krasutsky str., 3, lit. M, sq. 237 gradualle@mail.ru

The concepts of "self-employment" and "self-employed" have been actively used in Russian scientific literature since the early nineties. The basis of this literature was works on sociology. The reason for scientists' interest in this category was the dynamic growth in the number of self-employed people, which appeared as a result of the economic crisis, lower wages, lower demand in the labor market, and the formation of the shadow economy.

The above concepts were used ambiguously. In the broadest sense, self-employment was a form of employment of citizens, which presupposes self-sufficiency in income-generating work. Self-employment in this sense can be understood literally as self-employment ^[1], and all self-employed people can be classified as self-employed.

A significant influence on the formation of this definition was provided by the Resolution on the International Classification of Employment Status (ICSE), adopted at the XV International Conference of Labor Statisticians (Resolution concerning the International Classification of Status in Employment (ICSE), adopted by the Fifth International Conference of Labor Statisticians (January 1993)), which divided the types of employment into two groups: paid employment and self-employment. Self-employment in this document is defined as work, the income from which directly depends on the profit received by the enterprise (in a broad sense) from the goods and services produced, and personal consumption will be considered profit received from the activities carried out. In the future, this approach formed the basis for establishing the current dichotomy of the employment status of the population in the All-Russian Classifier of information on the population for employees and self-employed (All-Russian classifier of information on the population OK 018-95 (OKIN) (approved by Resolution No. 412 of the State Standard of the Russian Federation dated July 31, 1995)).

However, this was not the first use of the concept of "self-employment" by the International Labour Organization. Thus, in the Resolution on Statistics of the Economically Active Population, Employment, Unemployment and Underemployment, adopted by the Thirteenth International Conference of Labor Statisticians (Resolution concerning statistics of the economically active population, employment, unemployment and underemployment, adopted by the Thirtieth International Conference of Labor Statisticians. October 1982.), "self-employment", singled out as a separate category of employment along with "paid work", denoted the activities of persons who performed any kind of work for profit or family benefit in cash or in kind, as well as persons with an enterprise, which may be a commercial enterprise, a farm or an enterprise for the provision of services that for some reason temporarily did not work.

The formation of the above definition could also be influenced by the decisions of the European Court of Justice, which since 1992 has regularly begun to use the concept of "self-employed" to designate independently (without an employer) working professionals (European Court. Judgment of the Court of First Instance (Fifth Chamber) of 11 February 1992. Anastasia Panagiotopoulou v European Parliament. Case T-16/90; European Court. Order of the Court of First Instance (Fifth Chamber) of 14 December 1993. Antonio Calvo Alonso-Cortès v Commission of the European Communities. Case T-29/93; European Court. Order of the President of the Court of First Instance of 2 May 1994. Elena Candiotte v Council of the European Union. Case T-108/94 R).

In a narrower sense, in Russian theory, self-employment was understood as a way of doing business, in which the actor does not create a legal entity and does not hire employees, in other words, carries out his activities individually ^[2].

Within the framework of this concept, the concept of "individual work activity" was often used in research as a substitute for the concept of "self-employment", and the self-employed were called individuals ^[3]. The category of individual labor activity has been known to scientists since 1977, when Article 17 of the Constitution of the USSR (adopted at the extraordinary seventh session of the Supreme Soviet of the USSR of the ninth convocation on October 7, 1977) allowed individual labor activity of citizens in the field of handicrafts, agriculture, consumer services, as well as other activities based on exclusively on the personal work of citizens and their family members. In the official methodological provisions, as a category of citizens, only "persons working on an individual basis" were present, which meant persons engaged in independent income-generating activities and not using hired workers (Methodological provisions on Statistics. State Com. Grew. Federation of Statistics. 1996).

It is also worth noting that the categories of "self-employed" and "entrepreneurs" were often distinguished separately from each other in ongoing social research. Although from the approaches presented by us, self-employment should either act as a generic concept in relation to entrepreneurial activity (broad), or as a specific concept within the framework of entrepreneurial activity (narrow). The confusion led to a number of difficulties related to the uncertainty of these concepts and their adequate differentiation, which was noted by the authors of the research themselves (General problems // Monitoring public opinion: Economic and social changes. 1993. No. 2. 1994. p. 7).

Note that the non-conceptualization of the concepts of "self-employment" and "self-employed" has been and remains a global practice of sociological, economic and legal research. This is demonstrated by the change in the definition of "self-employment" in the resolutions of the International Conference of Labor Statisticians. Mark Linder, analyzing international accounting methods for the self-employed, ironically remarked: "Of course, self-employment is hardly the first case when sociologists identify a group that they did not bother to define ..." ^[4].

Until 1998, self-employment as a legal category was not subjected to any significant theoretical discussion. Rare mentions in dissertations and articles served as an indication of foreign regulation ^{[5, 6]}.

The first uses of the concept of "self-employed" in the legal acts of the authorities.

The first legal acts that used the concept of "self-employment" were the Decree of the Presidium of the Supreme Soviet of the Russian Federation dated June 15, 1993 No. 5166-I "On the implementation of the decree of the Supreme Soviet of the RSFSR dated December 26, 1991 "On measures of the Supreme Soviets of the Republics within the RSFSR, regional, regional, cities of Moscow and St. Petersburg, the Autonomous Region, autonomous districts, city and district Councils of People's Deputies for the social protection of the poor during the period of price liberalization" and the Decree of the Government of the Russian Federation dated June 15, 1994 No. 683 "On the Federal Employment Assistance Program of the Russian Federation for 1994". The concept of "self-employment" is not disclosed in them, but it is used in the context of types of employment of citizens and is opposed to entrepreneurship, from which it can be concluded that self-employment refers to a type of profitable employment of citizens that is not related to entrepreneurship.

At the same time, in the Decree of the President of the Russian Federation dated August 9, 1994 No. 1668 "On the Federal Migration Program", the concept of "self-employment" was used as a meaningful part of entrepreneurship: "... the organization of self-employment of migrants in the entrepreneurial sphere, small business ...", and in the Decree of the Ministry of Labor of the Russian Federation dated January 22, 2001 No. 11 "On approval of the Regulations on monitoring cities and other settlements with a monoeconomical structure and high unemployment" was used as a collective category to designate citizens employed in the entrepreneurial sphere and personal subsidiary the farm.

At the level of acts of the subjects of the Russian Federation, this concept was first used in the Law of St. Petersburg dated December 16, 1996 No. 154-52 "On the Employment Program of the population of St. Petersburg and the budget of the State Employment Fund for St. Petersburg for 1996", where provision of self-employment and entrepreneurship of the unemployed is indicated as an expense item. Thus, in Article 3, "self-employment" and "entrepreneurship" are indicated as opposable categories, and in section 4 of the appendix to this law, "self-employment" is designated as an integral part of entrepreneurship: "training unemployed citizens in the basics of entrepreneurial activity, including: self-employment; small and medium-sized businesses." That is, in this act, one can notice the ambiguity of the concept of "self-employment".

In federal legislation, the concept of "self-employment" was first used in the fifth appendix of Federal Law No. 115-FZ dated August 15, 1996 "On Budget Classification of the Russian Federation", in which the organization of assistance to self-employment of unemployed citizens was indicated as a type of expenditure of state budgets. There is no information in the law and appendices about what exactly is meant by this or what "self-employment" means.

The concept of "self-employment" appeared directly in the text of the law only in 2005, when the amendments that entered into force on 01.01.2005, the Law of the Russian Federation of April 19, 1991 No. 1032-1 "On Employment of the population in the Russian Federation" was supplemented with provisions on the duties of federal authorities in terms of the development of entrepreneurship and self-employment among the population. The concept is not disclosed, but the discrepancy between the concepts of "self-employment" and "entrepreneurship" is evident from the presented text. However, paragraph 10 of paragraph 8 of Article 7.1-1 of the wording of this law dated 01.01.2012 indicated that the promotion of self-employment of unemployed citizens includes financial assistance to citizens during their state registration as a legal entity and individual entrepreneur. That is, the financing of citizens during their registration as entrepreneurs was designated as promoting self-employment, which contradicts the previously considered provision using self-employment and entrepreneurship as non-matching categories.

In subsequent years, the concepts of "self-employment" and "self-employed" continued to be used in a number of laws. In Federal Law No. 209-FZ of July 24, 2007 "On the development of small and medium-sized enterprises in the Russian Federation", in paragraph 6 of Part 2 of Article 6, one of the goals of the state policy in the field of development of small and medium-sized enterprises was stated "ensuring employment of the population and the development of self-employment". According to O. Y. Pavlovskaya, self-employment in this case should be understood as an independent organization and conduct of entrepreneurial activity ^[7]. Following this, these concepts began to appear in the laws of the subjects of the Russian Federation on employment issues. Thus, the Law of Moscow dated October 1, 2008 No. 46 "On employment of the population in the city of Moscow" contains definitions of "self-employment", "self-employed". Self-employment in the law refers to the independent organization and conduct of entrepreneurial activities carried out in accordance with federal legislation (part 1 of Article 18 of the Law of Moscow dated October 1, 2008 No. 46). For the purposes of this law, self-employed persons include: employers, independent workers, unpaid family workers, members of a production cooperative.

It is worth mentioning that a category extremely similar to the concept of "self–employed" was contained in the first edition of the Law of the Russian Federation dated April 19, 1991 No. 1032-1 "On employment in the Russian Federation" - "citizens who independently provide themselves with work." This category was not disclosed in the law, but it was indicated that it includes, among others, entrepreneurs, self-employed persons, including farmers, as well as members of production cooperatives. Previously, it was contained with the same description in the Fundamentals of the Legislation of the USSR and the Republics on employment of the population dated January 15, 1991 N 1905-I, from where it got into the Employment Law without changes in the text along with other types of employed population specified in the Fundamentals.

The Constitutional Court. The beginning of judicial interpretation.

The full-fledged beginning of the legal interpretation of the concepts of "self-employment" and "self-employed" can be called 1998, when the Constitutional Court of the Russian Federation (hereinafter – Constitutional Court of the Russian Federation) in its Resolution dated 02/24/1998 N 7-P "In the case of verifying the constitutionality of certain provisions of Articles 1 and 5 of the Federal Law of February 5, 1997 "On the rates of insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the State Employment Fund of the Russian Federation and the Funds of Compulsory Medical Insurance In 1997, "in connection with complaints from a number of citizens and requests from the courts," he addressed the concept of "self–employed" to the category of persons paying insurance premiums outside of employment relations - individual entrepreneurs engaged in private practice, notaries, as well as lawyers. In subsequent acts, the Constitutional Court of the Russian Federation reveals in more detail the concept of "self-employed", defining him as a citizen who wished to carry out his activities on the basis of self-organization, without registration of labor relations (Definition of the Constitutional Court of the Russian Federation dated February 7, 2008 N 226-O-O).

It is worth noting that, although the Constitutional Court of the Russian Federation considers the self-employed based on their broad interpretation (as self-employed), it limits this interpretation to the fact that they have an obligation to pay insurance payments. As a result, the Constitutional Court of the Russian Federation gives a specific interpretation of the concept of "self-employed", taking into account the specifics of each law under consideration and the circle of persons subject to compulsory social insurance under this law. Thus, the Constitutional Court of the Russian Federation, considering self-employed citizens as subjects of compulsory social insurance, in its acts refers lawyers to this category (Definition of the Constitutional Court of the Russian Federation dated October 27, 2022 N 2716-O), private practicing notaries (Definition of the Constitutional Court of the Russian Federation dated December 1, 2009 N 1553-O-P), individual entrepreneurs (Definition The Constitutional Court of the Russian Federation dated May 29, 2014 N 1116-O), jointly private practicing notaries and lawyers (Definition of the Constitutional Court of the Russian Federation dated May 12, 2016 N 1144-O), individual entrepreneurs, private practicing notaries and lawyers (Resolution of the Constitutional Court of the Russian Federation dated January 28, 2020 N 5-P), as well as individual entrepreneurs, private practicing notaries, lawyers and heads of peasant (farm) farms (Resolution of the Constitutional Court of the Russian Federation dated December 23, 1999 N 18-P). This causes contradictions between the acts of the Constitutional Court of the Russian Federation, when in one case notaries engaged in private practice, heads of peasant (farm) farms, lawyers and individual entrepreneurs are designated as self-employed (Definition of the Constitutional Court of the Russian Federation dated December 23, 1999 N 18-P), and in another case self-employed and individual entrepreneurs are directly opposed: "This Moreover, it concerns differences in legal regulation in relation to self–employed citizens, on the one hand, and individual entrepreneurs, on the other" (Ruling of the Constitutional Court of the Russian Federation dated November 9, 2017 No. 2515-O).

From a functional point of view, the concept of "self-employed" is used in the acts of the Constitutional Court of the Russian Federation as a euphonious replacement for the construction of "persons who provide themselves with work", contained, in particular, in Federal Law No. 165-FZ dated 07/16/1999 "On the basics of compulsory Social Insurance". In confirmation of this, we can cite the Resolution of the Constitutional Court of the Russian Federation dated January 28, 2020 No. 5-P, where in paragraph 3.1 the concepts of "self-employed" and "self-employed persons" are used as synonyms.

In the above-mentioned approach of the Constitutional Court of the Russian Federation, there were exceptions found in the refusal definitions of the Constitutional Court of the Russian Federation, in particular, in the Definition of the Constitutional Court of the Russian Federation dated February 7, 2008 N 226-O-O, a broad interpretation of the concept of "self-employed" without insurance framework was used: "citizens who wished to carry out their activities on the basis of self-organization, without registration of labor relations, i.e. self-employed citizens", in the same broad meaning "self-employed" is used in the Definition of the Constitutional Court of the Russian Federation dated 07/17/2007 N 565-O-O.

The interpretation of the concept of "self-employed" given by the Constitutional Court of the Russian Federation, in the next few years began to be used in legal research ^{[8, 9]} (primarily through the analysis of decisions of the Constitutional Court of the Russian Federation), in the practice of arbitration courts (Resolution of the Federal Arbitration Court of the North Caucasus District of February 12, 2001 N F08-3777/2000-1098A in case N A22/1201-99/8-29/ Ar23), and subsequently the courts of general jurisdiction (the Appeal ruling of the Civil Court of the Kursk Regional Court dated August 07, 2013).

The state policy of legalizing the activities of the self-employed.

The campaign launched by the state to legalize the activities of unregistered entrepreneurs will have a significant impact on the development of scientific research in the definition of the concept of "self–employed", the starting point of which can be called December 27, 2013, when the List of instructions for the implementation of the Message of the President of the Russian Federation to the Federal Assembly of the Russian Federation dated December 12, 2013 (hereinafter - the List of Instructions) was signed. In this List, the Government of the Russian Federation was instructed to ensure that the legislation of the Russian Federation is amended, including the application of the patent taxation system by self-employed citizens (paragraph 1.27 of the List of Instructions dated December 27, 2013, No. Pr-3086). There is no definition of the concept of "self-employed" in the List of assignments. But it can be assumed that in the List the concept of "self-employed" is used in a narrow sense, as a person engaged in entrepreneurial activity individually, without creating a legal entity and hiring employees.

In the first years after the publication of the List of Assignments, such, in terms of regulating self-employment, did not arouse much interest among scientists, which is not surprising, given the lack of specific measures on the part of government agencies at that time aimed at fulfilling this assignment.

In 2015, an interdepartmental working group was formed in the government to implement the instructions, headed by Business Ombudsman B. Y. Titov. The working group began to review the status of sole proprietors and adapt it for the self-employed. By the end of 2015, a group led by B. Y. Titov had prepared a draft law providing for simplified registration of the self–employed as sole proprietors on the principle of "one window", the abolition of scheduled inspections in relation to them and the establishment of a single payment in the amount of up to 20 thousand rubles (of which 10 thousand rubles is a contribution to the FIU, and the remainder is a regional one tax). The patent would cover 45 types of activities. The Ministry of Finance of the Russian Federation has developed another option to consolidate the status of the self-employed. The Ministry of Finance proposed to consider the self-employed as citizens working in the field of residential cleaning, repair and tutoring services.

However, even before that, on July 27, 2015, the Main directions of the tax policy of the Russian Federation for 2016 and for the planning period of 2017 and 2018 were published on the website of the Ministry of Finance, which contained the following: "individuals who do not have employers and carry out certain types of individual, income-generating activities (self-employed persons)." In the "Strategy for the development of small and medium-sized enterprises in the Russian Federation for the period up to 2030", approved by Decree of the Government of the Russian Federation dated 06/02/2016 No. 1083-r, a different approach was chosen. According to this document, the self-employed include citizens who carry out income-generating activities and are not registered as individual entrepreneurs. Soon, by Order of Rosstandart dated 06/9/2016 No. 600, GOST 12.0.004-2015 (Interstate Standard) was introduced. The system of occupational safety standards. Organization of occupational safety training. General provisions), which stated that a self–employed person is a person who is self-employed in providing services under contracts of a civil nature, including in the form of individual entrepreneurship. The above–mentioned documents reveal the general idea set out in the List of Assignments: a self-employed person is an individual who independently (individually, outside of an employment relationship) carries out profitable activities. At the same time, different ways were chosen to legalize the activities of these individuals.

At the same time, legal scholars began to make attempts to form author's interpretations of the concept of "self-employed", as well as to analyze existing concepts. The researchers did not adhere to a single approach to the disclosure of this concept, for the most part the self-employed were defined as persons who independently provide themselves with income-generating activities, the specific features of which each author already named his own: providing and organizing their own activities, which acts as their main source of income ^[10]; compensated performance of a certain function outside of labor relations ^[11]; implementation of activities based on personal labor participation in the provision of services, performance of works for individuals aimed at systematic profit-making, without registration as individual entrepreneurs and hiring employees ^[12]; doing business alone, without employees and with the payment of insurance premiums ^[13].

An important milestone is the emergence of special legal definitions aimed at formalizing the concept of "self-employed" and its search in new norms regulating the profitable activities of individuals who are not registered as individual entrepreneurs. The first special legal definition was based on paragraph 7.3 of Article 83 introduced into the Tax Code on 11/30/2016 N 401-FZ, which establishes the right to register as taxpayers individuals who are not sole proprietors and provide services for personal and household needs without employing employees, and stimulating this registration paragraph 70 of Article 217, exempting from Personal income tax income from the provision of services such as child and sick care, tutoring, cleaning and housekeeping. Thus, on the basis of these norms, E. S. Kryukova and V. D. Ruzanova define the self-employed as individuals who are not individual entrepreneurs, providing services specified in the law to another individual to meet personal, domestic and (or) other similar needs of the latter, without attracting assets other than their labor ^[14] without involving employees.

The following special legal definition of the concept of "self-employed" was based on paragraph 2 of paragraph 1 of Article 23 of the Civil Code of the Russian Federation (Part One), introduced by Federal Law No. 199-FZ of July 26, 2017 "On Amendments to Articles 2 and 23 of Part One of the Civil Code of the Russian Federation". This norm establishes the possibility of establishing in the law the conditions for citizens to carry out entrepreneurial activities without state registration as an individual entrepreneur. Thus, "from the point of view of Article 23 of the Civil Code of the Russian Federation, the self-employed can be characterized as an individual engaged in entrepreneurial activity without state registration as an individual entrepreneur" ^[15]; "in relation to the current civil legislation, self-employed citizens should be defined as individuals engaged in entrepreneurial activity without state registration as an individual entrepreneur" ^[16]; "now the Civil Code of the Russian Federation in relation to the so-called self-employed citizens allows the occupation of certain types of entrepreneurial activity without state registration as an individual entrepreneur" ^[17].

The adoption of Federal Law No. 422-FZ "On conducting an experiment to establish a special tax regime "Tax on professional income" (hereinafter - Law No. 422-FZ) led to a shift in the discussion of the regulation of the activities of the self-employed within the framework of this law. On the basis of its norms, the third special legal definition of the concept of "self-employed" was formed. Scientists propose to define the concept of "self–employed" according to the requirements that are presented for the payer of professional income tax (hereinafter referred to as the NAP payer), thus identifying the self-employed and NAP payers who are not individual entrepreneurs. Thus, N. V. Tonkikh and A.V. Babintseva propose to understand the self-employed as citizens "participating in socially useful work based on personal initiative, independence and responsibility, receiving labor income from their personal officially registered in the status of "self-employed" labor activity. Conducting work in the status of "self–employed implies the absence of employees under employment contracts and receiving annual income in amounts not exceeding the amounts established by federal law (currently 2.4 million rubles per year)" ^[18]. In this sense, the concept of self-employed began to be treated as a certain tax status. This leads to a double interpretation of the concept of "self-employed", both including individual entrepreneurs-NAP payers ^[19] and excluding them ^[20].

Subsequently, federal authorities began to use a special legal definition. Thus, the Order of the Ministry of Economic Development of the Russian Federation No. 121 dated March 17, 2021 "On approval of the methodology for calculating the indicator "Number of self-employed citizens who have fixed their status, apply the special tax regime "Professional Income Tax" (NAP) and received support measures ..." contains the following definition of the concept of "self-employed citizens": These are individuals, including individual entrepreneurs, who apply the special tax regime "Professional Income Tax" in accordance with the procedure established by Law No. 422. In the same sense, the self-employed are indicated in the Letter of the Ministry of Finance of the Russian Federation dated December 20, 2021 No. 02-08-10/103863, the Order of the Federal Tax Service dated July 2, 2021. N ED-7-20/620@ "On approval of the Methodology for calculating the indicator "Number of self-employed citizens who have fixed their status and apply the special tax regime "Professional Income Tax" (NAP)" of the federal project "Creating favorable conditions for self-employed citizens to carry out activities", included in the national project "Small and medium-sized enterprises and support individual entrepreneurial initiative".

Modern judicial practice.

In the absence of a unified legal definition in modern judicial practice, this term is used ambiguously and contextually. In one case, the courts indicate paragraph 3.18 of GOST 12.0.004-2015, in which a self-employed person is designated as self-employed in providing services under contracts of a civil nature, including in the form of individual entrepreneurship (Definition of the IC in civil cases of the First Cassation Court of General Jurisdiction dated August 29, 2022 in case No. 8G-17879/2022[88-19615/2022]). In another, they refer to the explanations contained in the Letter of the Ministry of Labor and Social Protection of the Russian Federation No. 16-1/B-87 dated March 03, 2020, according to which a "self–employed citizen" is an entity engaged in income-generating activities and not registered as an individual entrepreneur (Definition of the Chertanovsky District Court of Moscow dated June 01, 2021 G. in case No. 11-0294/2021). In the third case, the courts refer to the order of the Ministry of Economic Development of the Russian Federation No. 121 dated 03/17/2021, in which individuals, including individual entrepreneurs, applying the special tax regime "Professional Income Tax" are named self-employed (Decision of the Dolgoprudnensky City Court of the Moscow Region dated January 25, 2023 in case No. 2-68/2023). In the fourth case, the courts refer to the Strategy for the Development of Small and Medium-sized Enterprises in the Russian Federation for the period up to 2030, approved by Order of the Government of the Russian Federation No. 1083-r dated June 02, 2016, which refers to the self-employed citizens engaged in income-generating activities and not registered as individual entrepreneurs (Decision of the Moscow District Court of Cheboksary Of the Chuvash Republic – Chuvashia dated August 25, 2022 in case No. 2-3156/2022). In other cases, the courts, when determining the self-employed, refer to the acts of the Constitutional Court (Resolution of the Eighteenth Arbitration Court of Appeal of June 1, 2021 N 18AP-7916/21 in case N A07-13344/2020).

The courts also use the concept of "self-employed" in a special legal sense. Firstly, the definition is based on the norm of clause 7.3 of Article 83 of the Tax Code of the Russian Federation, respectively, the courts define a self-employed person as an individual who is not an individual entrepreneur and provides services to individuals for personal household and other similar needs without employing employees (Appeal decision of the Zabaikalsky Regional Court dated June 02, 2021 in case No. 22-1092/2021). Secondly, the courts identify the self-employed with professional income tax payers who are not registered as individual entrepreneurs (Resolution of the Seventh Arbitration Court of Appeal dated April 6, 2023 N 07AP-1864/23 in case N A67-2192/2022).

Often, the courts, indicating that the participant in the dispute is self-employed, do not disclose this concept or do not clarify it. In some cases, it is possible to understand that we are talking about payers of professional income tax from the content of the court order. For example, in the Decision of the Intellectual Property Rights Court of November 17, 2022 in the case N SIP-620/2022, the concept is not disclosed, but in the subsequent text of the decision, the court refers to the provisions of Federal Law No. 422-FZ of November 27, 2018 "On conducting an experiment to establish a special tax regime "Tax on professional income", from which it can be understood in what meaning the concept of "self-employed" is used. In other cases, it is not possible to determine which self-employed people are in question, for example, as in the Decision of the Intellectual Property Rights Court dated February 22, 2023 N C01-2652/2022 in the case N A40-6782/2021, although it can be assumed that we are talking about the same category of persons.

It is likely that the identification of the self-employed and professional income tax payers, due to the prevalence of this interpretation, is already taken for granted by the courts, therefore, when using the concept of "self-employed", the courts do not specify it. The Constitutional Court of the Russian Federation gave a restrained confirmation of this. So, in 2022, citizen Silaeva was not allowed to participate in the elections due to the fact that in the documents she indicated her occupation as "self-employed" and not "a taxpayer of professional income tax", as it was written in the tax certificate (The decision of the Kuntsevsky District Court of Moscow dated August 05, 2022 in the case N 02a-0836/2022). The Constitutional Court of the Russian Federation, in a Resolution dated May 30, 2024, No. 27-P, recognized this requirement as unconstitutional, since it violates the electoral rights of citizens, creating artificial obstacles to participation in elections and restricting voters' right to receive reliable information about candidates. The Constitutional Court pointed out that the widespread use of the category "self-employed" in many presidential, government, departmental and other legal acts adopted both at the legislative and by-law levels, often designating the self-employed as individuals applying the NPD, but, as a rule, not referring to them as individual entrepreneurs, in conjunction with the provisions Federal Law No. 422-FZ of November 27, 2018 means, in fact, the official legal recognition of the institution of self-employment of citizens as a taxable activity that brings them income. This interpretation may become a guideline for future decisions of the Constitutional Court of the Russian Federation.

In rare cases, the courts have defined this concept in other meanings. For example, in the Decision of the Justice of the Peace of the judicial district No. 1 of the Sverdlovsk district of Perm, Perm Territory, dated June 3, 2020, No. 5-523/20; the Decision of the Osinsky District Court of Perm Territory dated January 25, 2022 in case No. 12-5/2022 and the Decision of the Leninsky District Court of Krasnodar, Krasnodar Territory dated June 19, 2019 in the case N 2a-5493/2019 the courts point to a "broad understanding of the self-employed", based on which self-employed citizens include: 1) individual entrepreneurs; 2) lawyers, notaries, arbitration managers, appraisers, mediators and other persons engaged in private practice in accordance with the established procedure; 3) other citizens who, as a rule, perform work or provide services under civil law contracts and receive remuneration for this. The Decision of the Osinsky District Court of the Perm Territory dated January 25, 2022 in case No. 12-5/2022 states that currently, taking into account current legal norms, the concept of "self-employed persons" is used in a narrow sense and covers only citizens who perform work or provide services under civil law contracts and receive for it the reward. In another case, the court, as a definition of the concept of "self-employed", indicated the definition contained in the Draft Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation on the Issue of Determining the Status of Self-employed Citizens", prepared by the Ministry of Justice of the Russian Federation on 05/29/2018 (The decision of the Zheleznodorozhny District Court of Khabarovsk, Khabarovsk Territory from On September 08, 2022, in case No. 2-3300/2022).

Different interpretations of the same concept are a serious problem for law enforcement, especially in the absence of clear legislative definitions. The concept of "self-employed" is a vivid example of this. Judicial practice demonstrates a number of errors related to its use:

1. Mixing of the "self-employed" as a payer of professional income tax (NAP) and an individual providing services for personal needs without registering an individual entrepreneur (clause 7.3 of Article 83 of the Tax Code of the Russian Federation). Such substitution of concepts is found not only in court decisions (for example, the decision of the Pervomaisky District Court of Murmansk dated March 30, 2023 in case No. 2a-919/2023), but also in the current instructions on maintaining judicial statistics (Order of the Judicial Department at the Supreme Court of the Russian Federation dated June 25, 2021 No. 124 "On approval of Instructions on the maintenance of judicial statistics"), which indicates the systemic nature of the error.

2. Identification of the "self-employed" within the meaning of Law No. 422-FZ with the concept of "self-employed" used by the Constitutional Court of the Russian Federation. Such an error, made, for example, in the decision of the Eighteenth Arbitration Court of Appeal dated June 1, 2021 N 18AP-7916/21, led to an incorrect qualification of the activities of NAP payers.

3. References to irrelevant documents: in attempts to define "self-employed", courts, considering cases involving payers of professional income tax, often appeal to documents unrelated to the special tax regime, for example, to the Strategy for the Development of Small and medium-sized Enterprises in the Russian Federation for the period up to 2030 (Decision of the Samara District Court the Samara City Court of the Samara Region dated March 20, 2024 in case No. 2-255/2024), which further exacerbates the confusion.

The reasons for these problems are obvious: the lack of a clear and unambiguous definition of the concept of "self-employed" in the current legislation, the lack of a unified approach by law enforcement agencies to its interpretation and the lack of elaboration of the issue in legal research.

Conclusion

The study revealed that the concept of "self-employed" is relatively new to Russian science and legislation. But during its existence, it has managed to go through a significant evolution. Initially, the concept was used to denote the type of employment of citizens, implying independent income-generating activities. Over time, it has acquired a more specific meaning related to specific legal norms and tax status. Today, the concept of "self-employed" can be found in laws, by-laws and court decisions, where it has different interpretations, sometimes contradicting each other. This indicates the complexity and versatility of this concept, which continues to develop and refine in the scientific and law enforcement spheres.

However, a clear delineation of concepts and their unambiguous interpretation is a necessary condition for the effective operation of the legal system and the protection of the interests of all participants in legal relations. Systemic measures are needed to eliminate legal uncertainty and ensure uniform application of legislation. Many scientists propose to fix the legal definition of "self-employed" at the federal law level as a solution. In our opinion, the introduction of the concept of "self-employed" with its definition in the federal law will provoke difficulties in applying the laws of the subjects of the Russian Federation and by-laws that interpret it differently. It will be more effective for the Supreme Court of the Russian Federation to develop clarifications on the use of terminology related to self-employment in order to form a unified law enforcement practice. In any case, it is necessary to determine who the self-employed are.

Paragraph 2 of paragraph 1 of Article 23 of the Civil Code of the Russian Federation establishes the fundamental possibility of an individual to carry out entrepreneurial activity without state registration as an individual entrepreneur, thereby opening the way for regulating specific organizational and legal forms of entrepreneurial activity, including the "Professional Income Tax". With this in mind, we consider it justified to define the concept of "self-employed" based on the provisions of Article 23 of the Civil Code of the Russian Federation. Thus, assuming that new types of self-employed may appear, whose activities will be regulated by this norm. However, it should be emphasized that this position is not exceptional. The concept of "self-employed" has a wide and sometimes contradictory content, which requires an individual approach to its interpretation, depending on the context and purpose of use.