Про оціночні поняття у Проєкті Трудового кодексу України

The article examines the use of evaluative concepts in the draft Labour Code of Ukraine. The article analyzes the Ombudsman’s comments on the draft Labour Code of Ukraine related to the use of the evaluative concepts of “good faith”, “reasonable”, “moral foundations of society”, “immoral offense”, and “loss of trust”. It is emphasized that the use of evaluative concepts in the provisions of legislation is necessary, due to the functions performed by this particular legal technique, since it is evaluative concepts that ensure flexibility, elasticity, comprehensiveness of legal regulation, and stability of legislation. Attention is drawn to the inexpediency of determining the content of an evaluative concept by formulating a definition, since the corresponding logical operation does not turn such a concept into an absolutely defined one. It is underlined that the attempt to transform an evaluative concept into an absolutely defined one by establishing its scope is not only impractical but also harmful to the legal regulation of social relations, as it eliminates the uniqueness of using the phenomenon of the evaluative concept as a means of legal technique. Attention is focused on the role of judicial practice in specifying evaluation concepts. It is indicates, that the use of the evaluative concepts of «immoral offense» and «loss of trust» in the norms regulating the grounds for termination of the employment contract on the initiative of the employer is not a novelty of the draft Labour Code of Ukraine and is based on sustainable approaches that have been formed in the process of applying similar grounds enshrined in the Labour Code of Ukraine. Much attention is drawn to the fact that in the draft Labour Code of Ukraine had improved the procedure for dismissing an employee caused by his or her culpable actions (due to loss of trust, for committing an immoral offense), which is based on the principles set out in ILO Termination of Employment Convention, 1982 (No. 158). It is concluded about that the provisions of the draft Labour Code of Ukraine containing the evaluative concepts of “in good faith”, “reasonably”, “moral foundations of society”, “immoral offense”, “loss of trust” won’t be weakening the rights and guarantees of employees compared to current legislation.