CC BY
33UDC: 347 (042)(575.1)
Rakhimov Miryokub
Lecturer, Tashkent State University of Law E-mail: miryoqub.rahimov@gmail.com
CONSTITUTIONAL AND LEGAL STATUS OF SELF-EMPLOYED CITIZENS IN THE REPUBLIC OF UZBEKISTAN
Ab&ract. The article is based on the results of research work on the Study of the activities, constitutional and legal hiatus as well as self-employed citizens. The purpose of the Study is to analyze the essence of self-employment as a socio-economic phenomenon, the extent of its prevalence, the analysis of measures taken by the State to legalize the self-employed and create favorable conditions for their activities, as well as proposals for the development of current legislation. The analysis shows that self-employment is a special type of business activity, but it is difficult to be regulated by the State due to its predominantly «shadow» nature. The article further discusses how to improve the mechanism for legalizing the activities of the self-employed, taking into account the opinions and assessments of citizens working on the basis of self-employment.
Keywords: constitution, employment, platform work, work on demand, freelancer, special tax regimes, employment classification, informal work, social protection of self-employed persons, State regulation of self-employment, individual entrepreneurship.
Introduction
Employment can be definedas a socially useful activity of citizens associated with the satisfaction of personal and social needs and generating labor income (earnings). According to the Con&itution of the Republic of Uzbeki&an Article 37 everyone shall have the right to work, free choice of work, fair conditions of labour and protection again& unemployment in the procedure specified by law. Any forced labour shall be prohibited except for punishment under the sentence of a court or some other in&ances ^ipulated by law. Employment is the moS important characteri&ic of the economy and the well-being of the country's population while simultaneously representing a social problem. It was characterized by the exigence of an employment contract, a specific place of work, including premises for performing labor functions, regulated working hours and re& time, fixed wages and etc. Employees in the course of their entire working career, as a rule, rarely changed both the scope of their work (profession) and the place of work (organization, enterprise). Such "^andard" employment was accompanied by clearly
defined forms of social protection, which gave certain lability to the employee's life.
Nowadays, the general trend of the labor market is an increase in the prevalence of non-&andard employment, which is based on the mobility of labor resources and a decrease in the employee's dependence on the employer. For in&ance, temporary work, part-time work, remote work, job sharing, virtual enterprise and others are forms of non-&andard labor. "Non-&andard forms of employment are not new, but they have become a more widespread feature of contemporary labour markets. We need to make sure that all jobs, regardless of their contractual arrangement, provide workers with adequate and &able earnings, protection from occupational hazards, social protection and the right to organize and bargain collectively," said Deborah Greenfield, ILO Deputy Director-General for Policy [1]. Non-&andard forms of employment are difficult to control by the &ate, often representing "shadow" employment, which is not reflected in official documents. Another aspect is that it is very different in its characteri&ics from
&andard employment, where there is a lack of legal certainty of self - employment.
Among the self-employed, various groups of citizens are di&inguished, in particular by the criteria of official regi&ration of labor activity. Some self-employed people work on an informal basis; that is, they do not pay taxes or insurance premiums. At the same time, such citizens enjoy public goods free of charge. As a result, on the one hand, the &ate budget does not receive part of the possible revenues; on the other hand, self - employed citizens, being "in the shadows", deprive themselves of the right to receive a &ate pension in the future, since they do not make contributions to the State pension fund and their work experience is not regi&ered.
Therefore, we can call the main reasons for the need for the &ate to legalize self-employment. This is the need for additional tax revenues to the &ate budget and reducing the burden on social extra-budgetary funds. In addition, the transfer of the self-employed to the official economy can contribute to the development of their entrepreneurial initiative, as opportunities for self-promotion, lending, obtaining loans, finding clients. Considering the above mentioned, from September 1, 2019, the work of self-employed persons is legalized and a new category of activity of individuals appears as self-employed in Uzbeki&an.
In this regard, it is very important to determine the legal &atus of the self-employed persons in the same for the entire legislative sy&em, develop legal definition of self-employment criteria, the rights and obligations of the self-employed in the level of legislative degree. The lack of certainty in the legal &atus of the self-employed entails the threat of bringing them to admini&rative and tax liability for illegal business.
I. SELF-EMPLOYMENT AS A SOCIO-ECONOMIC PHENOMENON
A self-employment is a form of receiving remuneration for their work directly from cu&omers, as opposed to hired work. The essence of self-employment is that a person finds paid work for himself to meet his personal needs and the needs of his family. Self-employment person receives remuneration for the material result of their work or services rendered or work performed. The main activity of the self-
employed is the sphere of consumer goods, services, and works. For example, home tutoring, services that care for children, works on arranging the landscape of suburban and personal plots of citizens, grazing and care of live&ock, car wash, minor car repairs, and others. Self-employed people can contact many cu&omers, thus avoiding financial and organizational dependence. The peculiarity of self-employment is that the employer and employee are combined in one person.
Data presented by &atus in employment is based on the 1993 International Classification of Status in Employment (ICSE-93). The ICSE-93 classifies jobs into five main categories, which can be grouped under two main types of jobs: paid employment jobs (employees) and self-employment jobs (employers, own-account workers, contributing family workers and members of producers' cooperatives). A sixth category is reserved for workers not classifiable by &atus [2].
Employees are all those workers who hold the type of jobs defined as "paid employment jobs", where the incumbents hold explicit (written or oral) or implicit employment contracts that give them a basic remuneration that is not directly dependent upon the revenue of the unit for which they work.
Employers are those workers who, working on their own account or with one or a few partners, hold the type of jobs defined as "self-employment jobs" (i.e., jobs where the remuneration is directly dependent upon the profits derived from the goods and services produced), and, in this capacity, have engaged, on a continuous basis, one or more persons to work for them as employee (s).
Own-account workers are those workers who, working on their own account or with one or more partners, hold the type of jobs defined as "self-employment jobs", and have not engaged on a continuous basis any employees to work for them. Members of producers' cooperatives are workers who hold "self-employment jobs" in a cooperative producing goods and services. Contributing family workers are those workers who hold "self-employment jobs" as own-account workers in a market-oriented e&ablishment operated by a related person living in the same household [3]. The main sign of self-employment is that the person works without entering into an employment contract with the employer.
According to the resolution of the Cabinet of Minivers of Uzbeki&an "On introduction of temporary labor certificate for self-employed citizens"from July 9, 2019, No. 566 self-employed citizens are physical persons independently engaged based on personal labor participation activities in the provision of services providing to individuals and legal entities directed to receive their labor income, not regi&ered as individual entrepreneurs and not using the employees in their activity, who apply for temporary labor permit in the prescribed manner with the right to record and incentive benefits [4]. Initially, in 2019, the li& of permitted self-employed activities is small and closed, and therewere only 24. This is similar to the regulation of sole traders — they can also only do what is ^ipulated in the legislation. Nowadays, there are 85 types of activities that are li&ed in the resolution of the Cabinet of Minivers of the Republic of Uzbeki&an "On approval of the li& of activities that individual entrepreneurs can engage in without forming a legal entity" dated January 7, 2011. Based on the decree of the President of Uzbeki&an, "On measures to simplify &ate regulation of entrepreneurship and self-employment," Parting from July 1, 2020, Uzbeki&an will introduce a procedure for regi&ering self-employed citizens according to an expanded li& of activities, the number of which has increased to 67.
If we pay attention to the figures, we can see that a number of serious changes have been made in the labor market in recent years in our country. In particular, the number of employed people increased by 1.5 times (8,8 million. from 13.5 million.up to 928.9 thousand), the number of employers increased by 4,5 times (from 203.2 thousand to 928.9 thousand) [5]. These data indicate an increase in the number of workers in the country. The number of self-employed citizens has also been increasing in recent years.
According to the Tax Office today, the number of those who prefer to engage in self-employment and independent activities is increasing day by day. Those who officially regi&ered as a self-employed person in the tax authorities to the &ate of September 23 reached 403 208 people.
The number of those who choose the direction of household services (hairdressing, manicure, cosmetology, pedicure, laundry and ironing at home, preparation of keys, sewing shoes, repair, painting, etc.) is relatively high - 113,049. The number of self-
employed in the field of services for the direction of agriculture (grazing live&ock, their care, planting and care of agricultural plants) is 87,231. As well as 74 086 self-employed persons approved the sphere of Social Services (home tutoring, looking after children and their care, household care, cleaning of rooms, folk medicine). 66,886 self-employed people are serving in the direction of indu&ry (wood architecture, plumbing service, electrical in&allation, pla&ic container, collection of iron tassels and collection of additional raw materials). 54,428 persons are working independently in the sphere of production and provision of services of public consumption goods (sale of agricultural products in the markets of bread, home pop-corn, ice cream, salads, cool drinks, buttermilk, manure and peasant). 7,476 self-employed citizens are regi&ered in the field of ICT (activity in social networks, development of software, mobile applications and websites, creation and processing of text) [6].
Of course, &ati&ics is a very important source of information about employment, but opinion polls give a better idea of the extent of self-employment, in particular, not only about the inclusion of citizens in self-employment, which is their main job but also about the possibility of working in this way in addition to the main work under an employment contract.
The scientific literature presents various approaches to defining the concepts of "self-employed" and "self-employment". Some scienti&s consider these concepts in a broad sense, where the essence is independent activity (i.e., carried out "personally"). Therefore, according to this approach, all self-employed people are self-employed.
For example, E.Abramov considers self-employment in a broad sense: by self-employed, she means "owners of small, micro-enterprises, entrepreneurs engaged in self-employment without a legal entity, employed in households»[7]. This formal approach combines, in fact, completely different groups of employees with different goals and principles of activity into one general category. Such authors as N.Volovskaya also adhere to a broad approach, considering self-employment to be primary for entrepreneurship since it contains such properties as "activity, initiative, independence, risk, creativity, organization» [8].
Measuring self-employment is very difficult because the boundaries between self-employment and employment as well as between paid and unpaid
work, are &ill unclear. Simply put, there are two types of employees, and two types of contracts: employees and self-employed. The main difference between them is that employees earn by working for the employer, while self-employed work on their own, for their own account, and they also can employ[9].
Above mentioned definitions of self-employment focus on its various aspects and features; however, they complement the information available in the scientific community about this complex and ambiguous phenomenon. In our opinion, self-employment as a form of economic activity is an entrepreneurial activity, but with its own characteri&ics. It is conducted by individuals independently, at their own risk, using their own initiative when making decisions, provided that they attract their own resources, without using the labor of employees. At the same time, self-employment can be not only the only way to earn income but also additional earnings during the time free from performing duties under an employment contract.
II INTERNATIONAL EXPERIENCE IN REGULATING THE ACTIVITIES OF SELF-EMPLOYED CITIZENS
According to experts, the phenomenon of self -employment covers a significant part of the working population. According to the International labour organization (ILO), as of November 2019, self-employed workers (non - salaried-own - account workers) accounted for 33,7 % of the total number of employees worldwide [10]. It should be taken into account that the share of self-employed people varies from country to country, which, in particular, depends on their level of economic development. For example, in the United States, self - employment was 3,8 %, in Germany - 5.3%, in France - 7,2 %, in Spain -10,6 %. The share of self - employed people in developing countries is significantly higher, for example, in Iran-36.2%, in India - 62,2 %.
The problem of accounting for the number of self-employed people is related to the different under&anding of this phenomenon in foreign countries and is considered depending on the national context. For example, in the Czech Republic, an entrepreneur is a person who carries out economic activities independently, at their own expense and at their own risk in order to generate income and
profit. In this group, people who hire employees are defined as entrepreneurs, and people who work alone in their own business are classified as "own-account workers" - self-employed.
In France, self-employed workers include self-employed workers without employees, employers, agricultural workers, and people working in a family business. The presence of a significant number of self-employed provides for legislative regulation of their activities. For example, a number offoreign countries have their own tax sy&em for the self-employed. In the United States, the self-employed pay the Self-employment tax, which includes payments to social security and the health care sy&em, a combined 15.3%. At the same time, the minimum non-taxable income is set.
Similar taxation ofthe self-employed can be found inthe UK, where the self-employed muä pay Income tax and contributions to the National Insurance sy&em (National Insurance contributions). At the same time, tax payments for the self-employed also depend on the amount of income received. Belarus has e&ablished single tax rates for individuals who are not regi&ered as individual entrepreneurs and who carry out various types of professional activities. The amount of rates depends on the type of activity that the self-employed person is engaged in, and also varies depending on the regions and di&ricts. For example, in Minsk, self-employed people working in the field of hairdressing and cosmetology services muä pay about 3,000 rubles per month in terms of Russian rubles in 2019 while self-employed tutors-about 1000 rubles per month.The Republic of Kazakh&an has introduced a single aggregate payment for the self-employed since January 1, 2019. This tax replaces four payments: individual income tax and social payments to social, social and medical insurance funds and pension payments to the Unified accumulative pension Fund.
In Germany,persons are self-employed if they practice one of the following professions but are not employed in a company:
1. Doctor, veterinarian, dentil, lawyer, tax consultant, notary, engineer, architect, interpreter (these professions are also called "catalogue professions"/"Katalogberufe".)
2. Teacher, lecturer, journals, musician, author, designer, arti&, as well as other scientific, literary, arti&ic or education-related professions (these occupations are also called "Tätigkeitsberufe" or "Activity Professions".)
3. designers, ^ructural engineers, photographers, graphic arti&s or similar technical or creative professions (these professions are referred to as "AhnlicheBerufe" or "similar occupations".)
The tax office can tell persons whether they are considered to be self-employed ("Freiberufler") or not when you regi&er there. If they are not sure whether they are self-employed, ju& ask the &aff at their local Tax Office directly- they will help persons with accurate classification. On Behordenwegweiser, a person can find the Tax Office responsible for his.
III STATE REGULATION OF SELF-EMPLOYMENT IN UZBEKISTAN
There are different sides between self-employed persons and workers. For example, we cannot use mediation in feature of self-employed persons as were labor relations. Mediation is defined as a process where the parties to a dispute in labour relations: the employer and the labour union - invite a neutral third party, the mediator, to help them resolve their differences [11]. In addition, self-employed persons are not divided into certain categories by their legal &atus. Sh.Ismailov said that the features of the legal regulation of labor of certain categories of employees are directly related to the rules of differentiation in labor law [12]. Also, self-employed persons cannot work as a part-time employee. Part-time employees' labor functions are performed in their free time from the main work and employee enters into an employment relationship on the basis of an employment contract [13]. In addition, we cannot usethe application of disciplinary sanctions for self-employed persons. M.Karimjonov said that labor legislation provides for additional guarantees for certain categories of employees; however, there are some exceptions when applying disciplinary penalties to this category of persons [14]. Disciplinary sanctions only application in labor relations.
On September 1, 2020, Uzbeki&an will introduce a new category of activity for individuals - the self-employed. This is a radically new &atus for individuals who now perform work and services in the shadow economy - their remuneration is not taxed.Now the &ate gives you a chance to get out of the shadows, regi&er as self-employed and receive benefits and preferences with the acquisition of a new ^atus.Self-employeddoes not pay the tax to incomes of physical persons, cannot hire employees, does not
maintain documentation of its activities, does not hand over the reporting of income do not file a tax return (if only on a voluntary basis), are not required to open bank accounts.
At the same time, companies that enter into contracts with the self-employed do not pay a single social payment from the remuneration amount. A self-employed person can provide services or perform work for other individuals or legal entities, entering into paid employment relations with them and leaving the gray zone. Legalization of the self - employed is a unique solution for Uzbeki&an in the legislation, and we have not had such a solution yet. The goal of this decision is not to replenish the treasury by charging regi&ration fees, but to legalize and remove the self - employed from the shadows in their own intere&s.
Self-employed are individuals who provide services/execution of works for individuals and legal entities regi&ered as entrepreneurs and do not use the work of hired workers.An important point we cannot identify ourselves as self-employed to do this; we need to go through the regi&ration procedure with the labor authority and get a temporary labor certificate. It should be noted that in relations between client and self-employed persons cannot arise labor disputes, and it will be civil disputes only. L.Rahimqulova said that parties involved in individual labor relations will always be employees [14].
The regi&ration procedure can be found in the Regulations on the procedure for issuing temporary employment certificates for self-employed citizens. To get a certificate, you need to submit an application. You can submit it in person to the labor authority, send it through your representative, by regi&ered mail, or online. To regi&er, you can contact any di&rict's labor authority, and regi&ration will not be linked to the place of permanent residence. Before regi&ering, you need to decide what type of work you want to do. The li& of permitted self - employed activities is small and closed - there are only 67 of them. This is similar to the regulation of sole traders-they can also only do what is ^ipulated in the legislation.
Among the permitted activities tutoring at home (and you can conduct both individual and group classes), supervision and care of children, the sick, the elderly, housekeeping services, cleaning of office and residential premises. It also legalized one of the mo& shadowy activities - car washing and polishing.
Those who wish to regi&er with the tax authorities
as self - employed persons can do this remotely and for free-ju& use the Soliq mobile app or log in to the taxpayer's personal account. For identification in the Soliq app, a person will need to enter the personal identification number of an individual or use an electronic digital signature and his phone number. The individual's credentials will be automatically entered into the regi&ration form. The self-employed mu^ choose the type of activity. If there are several types of activities, you can also display this information.
In conclusion, you mu^ specify the place of activity - the region and di&rict (city) and confirm your intention to regi&er with the tax authorities as self-employed. According to the results of regi&ration, data on self-employed persons are entered in the unified regi&er of taxpayers, and the user is sent a matrix bar code (QR code) certifying the fact of regi&ration. If you want, you can print the help with the QR code.
Having passed the official notification regi&ration the self-employed will be able to work legally, as well as to process and &ore all their orders received from cu&omers. Based on the order, you can create a receipt and send it to the client if necessary. At the end of each month, based on completed orders, the self-employed can calculate social tax, keep records of their income and expenses. Detailed information about income and expenses is generated for any desired period of time - in one click.
According to paragraph 3 of presidential decree -4742 self-employed persons pay social tax for 2020 in the amount of at lea& 50% of the basic e&imated amount - this is 111 500 soums. The amount of tax is fully allocated to the extra-budgetary Pension Fund. Based on that, the amount of earnings for calculating the pension is determined.
If the self-employed person decides to renew their &atus, they will need to re-apply to the place of regi&ration. The number of reque&s for an ID is unlimited. The uniqueness of this regi&ration is that when persons become self-employed, they are entitled to a pension for age, disability and loss of a breadwinner. The period of employment will be counted as the length of service, regardless of whether the self-employed person actually performed some work and services or re&ed for their own pleasure.
The tax is also paid remotely via a mobile app or any mobile payment sy&em. The process is similar to paying taxes for individuals. Persons can
now fulfill their tax obligations without visiting the tax authorities. Currently, the range of services and opportunities for self-employed citizens is expanding. A number of current features and amenities are under development. For example, you will be able to advertise your services on popular electronic platforms, as well as receive payment from cu&omers for services rendered (P2P). Viewing ratings and comments left by consumers will help you get feedback from your cu&omer base. In addition to the Android version of the mobile app, an IOS version is being created.
For whom is this especially relevant?
As we wrote above, one of the activities for the self - employed is tutoring. There are a lot of ads on online platforms for individual or group classes in languages, exact sciences, and art education. Citizens who make such ads are at risk. The tax inspector can accuse them of illegal business activities and bring them to admini&rative responsibility and tax liability for concealment of revenue from the sale of goods (works, services), as well as under violation of the procedure for using cash regi&ers and payment terminals for accepting payments. Now it's easier we sign a contract, transfer money to the card to the self-employed. You will also be able to pay in cash by receiving funds through a Bank. Issue a ^atement or expense order, attach a signed contract, a copy of the self - employed person's regi&ration-all legal formalities for paying cash from the organization's cash regi&er will be met.
CONCLUSION
The results of the &udy allow us to make a number of sugge&ions that need to be paid attention to in the process of regulating the activities of the self - employed.Because the pandemic showed some loopholes in the labor legislation, and at the same time became the basis for the emergence of new relations [16]. Self-employment should be considered a separate form of a small business with separate legislative acts, which would allow legislating the self-employed's legal &atus and their corresponding rights and obligations. The legislation regulating the activities of employees and entrepreneurs does not fully meet the requirements for organizing the activities of the self-employed, taking into account the peculiarities and specifics of
their activities. In addition, special attention should be paid to various information, legal, financial, and other assi&ance to the self-employed in legislative activities. According to the survey, the lack of legal information significantly affects the re&riction of business activity of citizens. Also, the results of the &udy showed that the main difficulties of self - employment are the complexity of search orders (works, projects), un&able employment, self -
resolution of problems, lack of legal protection, guarantees for remuneration, lack of opportunities to use social guarantees, benefits, difficulties in obtaining loans, loans, etc. Therefore, a well-thought-out sy&em of &ate support measures related to organizing the activities of the self-employed, for example, assi&ance in finding orders, legal protection, could be a good incentive for their work in the legal field.
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