Discussion on the application of “Protection of Consumer Rights and Interests”in medical and American disputes

I. Background

“The love of beauty, everyone has”, with the vigorous development of social economy, people's pursuit of beauty is becoming more and more intense, and the medical beauty industry has ushered in an unprecedented development climax. In the five years from 2017 to 2021, the number of visits to beauty hospitals surged by 139%, undoubtedly proving that the medical beauty industry has risen to become a high-profile hot industry, according to the China Health Statistics Yearbook. However, behind the rapid growth of the industry, related disputes have also frequently appeared and become the focus of public attention. The “White Paper on Consumer Rights Protection in 2022” reveals that since 2018, the number of complaints received by the Black Cat complaint platform in the medical and beauty industry has risen year by year, including more than 7,800 in 2022. Among them, a core and controversial legal issue surfaced: Should medical cosmetology dispute cases be included in the scope of application of the Protection of Consumer Rights and Interests? At present, there is no clear definition in Chinese law and judicial interpretation.

On this issue, there are two very different opinions in the industry. One side believes that medical cosmetology services mainly meet the pursuit of beauty and psychological needs of individuals, with the characteristics of life consumption behavior, and the independent choice of medical institutions and specific medical behavior is no different from that of ordinary consumers. The other side argues that, starting from the concept and characteristics of medical cosmetology, it is different from ordinary life cosmetology in terms of actors, qualification requirements, behavior patterns, purposes and administrative management. Moreover, in practice, medical cosmetology often has multiple purposes such as treatment and correction, and cannot simply be equated with general consumer behavior. In this regard, the author believes that when discussing whether the “Protection of Consumer Rights and Interests” is applicable to medical cosmetology dispute cases, it can not be generalized, and it is necessary to conduct in-depth analysis and judgment based on the characteristics and conditions of specific cases.

Second, the application conditions of the “Protection of Consumer Rights and Interests” in medical cosmetology dispute cases

In the case of medical cosmetology disputes, medical cosmetology patients often seek compensation from medical beauty institutions with the triple compensation rule in the “Protection of Consumer Rights and Interests”.

Article 55, paragraph 1, of the Law on the Protection of Rights and Interests of Consumers

Where a business operator commits fraud in providing a commodity or service, it shall, at the request of a consumer, increase the amount of compensation suffered by the consumer, and the amount of additional compensation shall be three times the price paid for the commodity or the cost of the service received by the consumer. If the amount of additional compensation is less than 500 yuan, it shall be 500 yuan. If the law provides otherwise, such provisions shall prevail.

The key elements are: operators, consumers, fraud. Then, whether the medical beauty dispute case applies to the triple compensation rule in the Protection of Consumer Rights and Interests Law needs to meet the above three elements.

01, medical beauty institutions have for-profit, in line with the identity characteristics of operators

In the Protection of Consumer Rights and Interests, there is no clear definition of business operators, according to its article 3, business operators are to provide consumers with goods produced and sold or provide services. However, Article 2 of the Anti-Unfair Competition Law stipulates that “business operators as mentioned in this Law refer to legal persons, other economic organizations and individuals engaged in commodity operations or profit-making services (hereinafter referred to as commodities including services).” Therefore, it can be determined that the operator is the citizen, legal person or other economic organization that provides the goods or services produced or sold to the consumer, and it is engaged in production and business activities for the purpose of profit and the other party corresponding to the consumer. Traditional medical institutions have certain social security and public welfare, and do not belong to operators. However, medical cosmetology institutions are profit-oriented and obtain profits by providing paid medical cosmetology services, which has the identity characteristics of operators.

02, medical beauty with consumer, medical beauty patients in line with the characteristics of consumers

According to the relevant provisions of the Law on the Protection of Consumer Rights and Interests, a consumer refers to a natural person who purchases or uses commodities or receives services to meet the needs of personal consumption. The usual medical treatment is for patients who have physical diseases and need treatment, and it is a necessity. The object of medical beauty is the people who have “beautification” needs for their own appearance or the shape of various parts of the human body, that is, the “beauty”, there is no problem that they have to do it, but the icing on the cake, so that it has a strong selectivity and voluntariness. In order to satisfy the beauty of the appearance of the purchase of products, accept services, should conform to the characteristics of consumers.

The Medical Cosmetology Consumer Service Contract (Model Text) formulated and issued by the State Administration of Market Regulation affirms that the public's acceptance of the services of for-profit cosmetology medical institutions should be a consumer behavior and protected by the Law on the Protection of Consumer Rights and Interests. The medical attribute of medical cosmetology service should not affect the recognition of its consumption relationship.

When consumers buy medical cosmetology services for the purpose of pursuing more beauty, the original state does not affect life and health, does not seriously affect normal production and life, can be identified as consumer medical cosmetology, and should be protected by the law of consumer rights and interests.

03, the fraud of medical beauty institutions

According to the relevant provisions of the Civil Code, the following four conditions should be met to constitute fraud: (1) a party intentionally informs false facts or conceals true facts; (2) the other party thus falls into a wrong understanding; (3) the other party makes an untrue expression of meaning due to wrong understanding; (4) Fraud is improper.

In consumer medical beauty, as long as there is fraud in medical beauty institutions, it is applicable to the triple compensation rule in the Protection of Consumer Rights and Interests. Therefore, whether there is fraud in medical and American institutions has become the focus of dispute, if it can not be identified as fraud, it is not applicable to the triple compensation provisions in the Protection of Consumer Rights and Interests. Through case analysis, the author concludes that the fraudulent behavior is usually manifested in the aspects of institution qualification, personnel qualification, product use and advertisement.

01, institutional qualifications

For beauty institutions, it is necessary to obtain the registration of the health administration department and obtain the “Medical institution practice license” in order to carry out medical beauty activities. Before carrying out medical cosmetology projects after obtaining the “Medical Institution Practicing License”, cosmetology institutions and medical cosmetology departments should also carry out medical cosmetology projects by the professional society designated by the registration authority, and file with the registration authority. According to Article 16 of the Measures for the Administration of Medical Cosmetology Services, “Cosmetology medical institutions and medical cosmetology departments shall carry out medical services within the scope of diagnosis and treatment subjects approved by the health administration department according to their own conditions and capabilities, and shall not expand the scope of diagnosis and treatment without approval.” Aesthetic medical institutions and medical institutions with medical cosmetology departments shall not carry out medical cosmetology projects that have not been filed with the registration authority."

Medical beauty institutions, knowing that they do not have the qualifications of the corresponding institutions, still deliberately inform the beauty seeker or deliberately conceal the beauty seeker, leading the beauty seeker to fall into the wrong understanding, so that the beauty seeker to make the wrong decision, should be identified as fraud.

Jiangsu Province High People's Court issued 4 typical cases of special management of outstanding problems in the medical beauty industry: Zhang v. a cosmetic medical outpatient department beyond the qualification of the implementation of medical beauty surgery case

The court held that the focus of the dispute in this case is whether the cosmetic medical outpatient department constitutes fraud and whether the case applies the provisions of the Consumer Rights and Interests Protection Law on punitive damages. As a provider of medical services, cosmetic medical institutions should have the corresponding qualification. When performing “costal cartilage + prosthesis rhinoplasty” for Zhang, the cosmetic medical outpatient department only has the qualification of secondary one and secondary one of the cosmetic surgery projects announced by the Ministry of Health. Without obtaining the corresponding qualifications for performing the fourth grade surgery of costal cartilage transplantation rhinoplasty as stipulated in the “Measures for the Management of Surgical Classification of Medical Institutions (Trial)” and the “Jiangsu Province Surgical Classification Directory (2017 edition)”, the above situation will obviously affect whether Zhang will perform surgery in the outpatient department, and the aesthetic medical outpatient department did not inform Zhang of the situation. It should be found to constitute fraud. In this case, the cosmetic medical outpatient department is a business medical cosmetic institution, and Zhang goes to the outpatient department for cosmetic surgery for the purpose of beauty, which has a strong purpose of living consumption, which is in line with the definition of consumers in the “Protection of Consumer Rights and Interests” and belongs to the scope of adjustment of the law. Because of the cosmetic medical outpatient department fraud, Zhang as a consumer to request its liability for punitive damages, the people's court should support. The court of first instance then ordered the cosmetic medical clinic to return the cost of Zhang's rhinoplasty surgery and pay three times the punitive damages. The focus of the dispute in this case is whether the cosmetic medical outpatient department constitutes fraud and whether the case applies the provisions of the Consumer Rights and Interests Protection Law on punitive damages. As a provider of medical services, cosmetic medical institutions should have the corresponding qualification. When performing “costal cartilage + prosthesis rhinoplasty” for Zhang, the cosmetic medical outpatient department only has the qualification of secondary one and secondary one of the cosmetic surgery projects announced by the Ministry of Health. Without obtaining the corresponding qualifications for performing the fourth grade surgery of costal cartilage transplantation rhinoplasty as stipulated in the “Measures for the Management of Surgical Classification of Medical Institutions (Trial)” and the “Jiangsu Province Surgical Classification Directory (2017 edition)”, the above situation will obviously affect whether Zhang will perform surgery in the outpatient department, and the aesthetic medical outpatient department did not inform Zhang of the situation. It should be found to constitute fraud. In this case, the cosmetic medical outpatient department is a business medical cosmetic institution, and Zhang goes to the outpatient department for cosmetic surgery for the purpose of beauty, which has a strong purpose of living consumption, which is in line with the definition of consumers in the “Protection of Consumer Rights and Interests” and belongs to the scope of adjustment of the law. Because of the cosmetic medical outpatient department fraud, Zhang as a consumer to request its liability for punitive damages, the people's court should support. The court of first instance then ordered the cosmetic medical clinic to return the cost of Zhang's rhinoplasty surgery and pay three times the punitive damages.

02. Personnel qualification

According to the Measures for the Administration of Medical Cosmetology Services, the attending physician responsible for the implementation of medical cosmetology projects must be qualified as a medical practitioner and registered with the registration authority of medical practitioners; Have working experience in related clinical discipline. Among them, responsible for the implementation of the aesthetic surgery project should have more than 6 years of clinical work experience in aesthetic surgery or plastic surgery and other related professional; Responsible for the implementation of cosmetic dentistry projects should have more than 5 years of professional clinical work experience in cosmetic dentistry or stomatology; Responsible for the implementation of aesthetic Chinese medicine and aesthetic dermatology projects should have more than 3 years of clinical work experience in TCM and dermatology respectively; It is also necessary to undergo professional training or further study in medical cosmetology and be qualified, or have been engaged in medical cosmetology clinical work for more than 1 year. Personnel engaged in medical cosmetic nursing work shall have the qualification of nurses and be registered with the nurses registration authority; Have more than 2 years of nursing work experience, and through medical beauty nursing professional training or refresher and qualified, or have been engaged in medical beauty clinical nursing work for more than 6 months.

In medical and American institutions, it is not uncommon to publicize South Korean experts to visit China. According to the Interim Administrative Measures for Foreign Doctors' Short-term Medical Practice in China, foreign doctors' short-term medical practice in China must be registered and obtain a short-term medical Permit for Foreign Doctors. Xinhua News Agency reported a case in July 2019 in which a Korean beauty “expert” conducted a professional interview in a five-star hotel and injected “high-end” beauty injections, while the so-called foreign experts had been engaged in beauty cleaning and other work in Korean beauty salons. In this case, the medical beauty agency clearly constitutes fraud.

The Intermediate People's Court of Xinxiang City, Henan Province issued eight typical cases of consumer rights protection: Duan v. a medical beauty company and Li Mou medical service contract dispute

The Court held that: First of all, this case is a contract relationship of medical services, the purpose of Duan's medical treatment is to shape and change beauty rather than to treat diseases, which has obvious consumer color. The purpose of the medical beauty company's diagnosis and treatment is to make profits, and it has the characteristics of operator identity. The nature of its medical beauty service is different from that of the medical service conducted by non-profit medical institutions to restore the health of patients. Therefore, it should be adjusted by the protection law of consumer rights and interests. The medical beauty company can not prove that it has achieved a clear, detailed, and sufficient obligation to inform, to conceal the main surgeon of Duan no doctor qualification, and the medical record shows that the anesthesia record is not consistent with the actual degree of anesthesia, which obviously belongs to the concealment of the true situation to mislead consumers to accept medical services, which constitutes fraud, so the punitive compensation provisions of the consumer rights and interests protection Law should be applied. To be paid triple damages by the medical beauty company. Therefore, the court ordered the company to return the beauty service fee of 27,848 yuan and pay three times the compensation of 83,544 yuan.

03, product

Medical products, including drugs, medical devices, etc., are also controversial issues often involved in medical cosmetology dispute cases. For medical products, medical beauty institutions shall truthfully inform the beauty seekers and use them within the legal scope, and cannot falsely inform or conceal the truth, otherwise it will be identified as fraud.

(2020) Chuan Minshen 254 Trial Supervision civil Ruling

The court held that the instructions for the use of LV bone cement submitted by a certain cosmetic hospital clearly stated that the indication of the product was: suitable for internal fixation of prosthetics implanted in joint replacement. The scope of application of the medical device registration certificate involved in the product is also consistent with the above. In addition, an email reply from the Chinese agent of the product involved in the case said that the product could not be used for facial cheekbone filling repair. Certain beauty hospital knows the scope of use of LV bone cement but deliberately did not inform Ye Mou of the real situation, resulting in Ye Mou to make the wrong expression of meaning and agreed to implement the relevant surgery, the above behavior of certain beauty hospital constitutes fraud.

04, advertising

It is not uncommon for medical cosmetology institutions to have false advertising and exaggerated effects. The Guidelines for Law Enforcement of Medical Beauty Advertising issued by the General Administration of Market Regulation require that medical beauty advertisements shall not violate laws and regulations on drugs, medical devices, advertising and other laws and regulations, and advertise drugs and medical devices that have not been approved or filed by the drug administration department. It is not allowed to publicize diagnosis and treatment subjects and service items that have not been approved and recorded by the administrative department of public health; It is not allowed to publicize the effect of diagnosis and treatment or make assurances about the safety and efficacy of diagnosis and treatment. If a person seeking beauty is misled by the advertisement of the medical beauty agency and chooses the service of the medical beauty agency, it can be considered that the medical beauty agency has fraud.

The Supreme People's Court issued one of the 10 typical cases of consumer rights protection: a dispute between Zou and a medical and beauty institution over infringement liability

The court held that: First of all, this case belongs to consumer medical cosmetology, Zou is a healthy person, in order to meet the needs of the pursuit of beauty and receive beauty services, with the characteristics of consumers; The operation purpose of the medical beauty institution is to obtain profits, and it has the characteristics of an operator. Where a consumer accepts services from a business operator for daily consumption, it shall be subject to the regulation of the Law on the rights and Interests of Consumers. After investigation, the medical beauty agency has been repeatedly punished for false publicity activities such as inconsistent medical advertising content with the advertising content approved by the health administrative department, and untrue advertising words. Zou was misled by the above-mentioned advertisements and accepted services. Therefore, the medical beauty agency has fraudulent behavior of false publicity, and the provisions on punitive damages under the Protection Law of Consumer Rights and Interests should be applied. By the medical beauty agency three times compensation for Zou's surgical costs. Secondly, there was fault in the diagnosis and treatment behavior of the medical beauty institution, but Zou's repair behavior in other medical beauty institutions after the operation has indeed changed the results of the medical side, and the court then ruled that the medical beauty institution compensated Zou for a total of 74,948 yuan in accordance with the fault liability ratio of 60%.

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In consumer medical cosmetology dispute cases, beauty seekers are often in a relatively weak position due to the limitation of professional knowledge and economic ability. Dehe Hantong Law Firm always adheres to the spirit of the rule of law and pays attention to the protection of consumer rights and interests. We believe that through the reasonable application of the Law on the Protection of Consumer Rights and Interests, the legitimate rights and interests of beauty seekers can be more effectively protected and the standardized and orderly development of the medical beauty industry can be promoted. This not only reflects the development requirements of modern market economy, but also the construction of harmonious society