Recently, a well-known hair and beauty company was exposed to have caused heated discussions due to illegal acts such as inducing consumers to spend large amounts, refusing to return the balance in the prepaid card and advertising false publicity, and the local market supervision department has filed a case against it. In addition to the above problems, when consumers receive beauty salon services, they often encounter that beauty institutions lack medical qualifications to carry out medical beauty services, or beauty salons use the "product + service" model to circumvent prepaid card supervision. As a consumer, how to distinguish between medical beauty and life beauty? When encountering "routine services", can you claim a refund?
1. All fees for providing medical aesthetic services without qualifications are refunded
Xiao Xu began to undergo surgical cosmetology of the eyebrows and eyes under the recommendation of a beauty salon, and carried out facial injection medical cosmetology, costing a total of 69,000 yuan. After doing a variety of medical beauty projects, a little bit of swelling began to appear on his face. She repeatedly went to the beauty salon to negotiate and deal with it, but the two sides did not reach an agreement. Xiao Xu sued the beauty salon to the court on the grounds of a service contract dispute, demanding that the beauty fee be returned and the follow-up treatment fee be paid.
After trial, the court held that civil juristic acts that violated the mandatory provisions of laws and administrative regulations were invalid. In this case, the business scope of the beauty salon was hairdressing, beauty and toiletries, and cosmetics retail, while Xiao Xu accepted all of them were traumatic and invasive medical beauty projects, and the beauty salon and its staff did not have relevant medical qualifications. Therefore, the medical beauty service contract between the beauty salon and Xiao Xu should be found to be invalid, and the property obtained by the beauty salon based on the medical beauty contract should be returned. The court finally ordered the beauty salon to return a small amount of beauty expenses. For follow-up treatment fees, they are not supported as they have not actually occurred.
What qualifications do beauty institutions need to have to carry out medical cosmetology? According to the judge of the Haidian District People's Court of Beijing Municipality, article 24 of the Measures for the Administration of Medical Beauty Services stipulates that no unit or individual may carry out medical beauty services without obtaining the "Medical Institution Practice License" and approved by the registration authority to carry out medical beauty diagnosis and treatment subjects. Article 19 stipulates that medical beauty services shall be under the responsibility system of the attending physician. Medical aesthetic programs must be carried out under the responsibility or guidance of the attending physician. It can be seen that ordinary beauty salons and those who are not qualified to practice medicine are not entitled to provide medical beauty services.
When choosing a medical aesthetic institution, in addition to seeing whether the other party has a business license and health license, consumers should also ask them to provide the "Medical Institution Practice License" and the qualification certificate of relevant personnel, otherwise it should be determined that they do not have the qualifications to engage in medical beauty.
2, embroidered eyebrows and lipstring, etc. are all medical beauty
According to the nature of the service provided, beauty can be divided into two categories: life beauty and medical beauty. The so-called life beauty, according to the provisions of the "Interim Measures for the Administration of Beauty Salon Industry", refers to the use of manual technology, equipment and equipment and with the help of makeup, beauty and skin care products, etc., to provide consumers with non-traumatic, non-invasive skin cleaning, skin maintenance, makeup modification and other services. Medical cosmetology, according to the Administrative Measures for Medical Beauty Services, refers to the use of surgery, drugs, medical devices and other traumatic or invasive medical techniques to repair and reshape the human appearance and the morphology of various parts of the human body.
Medical beauty is different from life beauty in that it may change the cellular structure of the human body, may cause corresponding damage to tissues, may have physiological effects on the body, and itself has certain risks. China according to the technical difficulty of medical beauty projects, the degree of medical risk that may occur, the implementation of hierarchical access management of medical beauty projects, the former Ministry of Health in 2009 issued the "medical beauty project grading management directory", according to the content of the directory, common lip lines, embroidery eyebrows, eye bags, acne picking, laser wrinkle removal, laser freckles, etc. belong to the scope of medical beauty. There are also such popular breast augmentations, open eyes, double eyelid cutting, liposuction, stretch marks repair, and injection of water light needles, hyaluronic acid and so on. In addition, there are medical aesthetic techniques in hair, such as hair transplantation.
In the course of hearing a case, the court will usually strictly follow the Catalogue of Graded Management of Medical Beauty Projects to determine whether the corresponding beauty services belong to the category of medical beauty. Therefore, when handling such dispute cases, the court generally examines from two aspects, one is whether the beauty salon institution has medical qualifications, and the other is whether the beauty services provided by it belong to the medical beauty project.
3. Package medical beauty as life beauty or bear criminal responsibility
Ordinary beauty does not have a therapeutic effect, if the beauty salon institutions "cross-border" medical beauty packaging into life beauty, what legal responsibilities need to be borne?
The judge of the Haidian District People's Court of Beijing Municipality introduced that the first is civil liability. Article 49 of the Law on the Protection of Consumer Rights and Interests stipulates that where business operators provide goods or services that cause personal injury to consumers or other victims, they shall compensate for reasonable expenses incurred for treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, and income reduced due to lost work. Where disability is caused, compensation shall also be made for the cost of assistive devices for the disabled and compensation for disability. Where death is caused, funeral expenses and death compensation shall also be compensated.
If an employee of a beauty salon institution knows that he or she does not have medical qualifications, but still promises to provide beauty services with medical effects, causing consumers to purchase and receive services, and meets the constituent elements of fraud, the beauty salon will be found to constitute civil fraud. Article 55 of the Law on the Protection of Consumer Rights and Interests stipulates that where a business operator provides goods or services fraudulently, it shall increase the compensation for the losses suffered by the consumer at the request of the consumer, and the amount of the increased compensation shall be three times the price of the goods purchased by the consumer or the cost of receiving the service; if the amount of additional compensation is less than 500 yuan, it shall be 500 yuan.
Consumers can claim that the business operator compensates for personal and property losses, but at the same time require the business operator to bear the compensation of "one refund and three compensation" based on fraud. In practice, where a consumer claims damages, the consumer should be required to prove the result of the damage, the causal relationship between the damage and the service.
The second is criminal liability. Xiao Qin went to a beauty salon to consult about liposuction surgery, and after the employee Xiao Zhang explained, she agreed to apply for a membership card and transferred 16800 yuan on the spot to perform liposuction surgery. Xiao Zhang and three other employees prepared the supplies needed for the operation and the anesthetic "lidocaine" and injected Xiao Qin. During this period, her body suddenly convulsed, and she died after being sent to the hospital for rescue. During the rescue, employee Xiao Zhang and three other people cleaned up the scene of the beauty shop and destroyed the relevant surgical items, while instructing all employees to leave the store and delete the surveillance video records. After investigation, the store's business scope is beauty services, wholesale and retail, and it has not obtained a medical institution practice license. The operator is Xiao Zhang, and all employees have not obtained the qualification of practicing as a doctor and are not qualified to engage in medical beauty projects. After trial, the court held that the "lidocaine" injection involved in this case was a prescription drug and that a person with medical qualifications could only prescribe it. Xiao Zhang and the other three violated the state's management system for medical and health work, endangered public health order, and engaged in medical activities without authorization without doctor qualifications, resulting in the serious consequences of the victim's death, and the acts of the three of them constituted the crime of illegal medical practice according to law, and should be investigated for criminal responsibility and are joint crimes. In the end, the court convicted the three employees of illegal medical practice and the crime of helping to destroy evidence, sentenced them to fixed-term imprisonment ranging from 12 to 3 years, recovered 490,000 yuan in compensation for the three people in accordance with the law, and returned 16,800 yuan of illegal gains of the operator Xiao Zhang to Xiao Qin's legal heirs.
Beauty institutions usually package medical beauty as life beauty, and employees are often suspected of committing illegal medical practice. The crime of illegally practicing medicine is stipulated in article 336 of the Criminal Law, which refers to a person who has not obtained a doctor's practice qualification to illegally practice medicine, and if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than 3 years, criminal detention or public surveillance, and shall also be fined or fined; if the physical health of the patient is seriously harmed, he shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 10 years and shall also be fined; if the death of the patient is caused, he shall be sentenced to fixed-term imprisonment of not less than 10 years and shall also be fined.
There are also administrative responsibilities. A local health commission found that from December 2015 to April 2019, a beauty salon company carried out diagnosis and treatment activities without obtaining a "medical institution practice license", and had not been punished for this, and had practiced for more than 3 months, with illegal income of nearly one million yuan. The beauty salon company violated the relevant administrative laws and regulations, and the health department finally decided to confiscate the illegal gains of the company and fined it 10,000 yuan.
For the administrative legal liability of beauty salons to package medical beauty into life beauty, the health administrative department of the people's government at or above the county level usually orders them to stop practicing activities, as well as confiscate illegal gains, drugs and instruments, and may impose a fine of less than 10,000 yuan according to the circumstances.
4. Package sales can also claim to refund the balance
In June this year, the Beijing Municipal Bureau of Commerce and the Beijing Municipal Bureau of Market Supervision and Administration implemented a model contract for prepaid services in the beauty salon industry, which set up performance guarantee measures such as business operator commitments, special accounts for capital depository, performance guarantee insurance, and bank guarantees.
In order to evade the supervision of prepaid cards, many beauty salons have begun to market with the sales model of "high-priced products + free services". If the goods have been sold, can the consumer still claim a refund?
Xiao Li went to a beauty institution for body treatment, and the staff recommended a health care drug to her, saying that the product was combined with massage techniques and would achieve the best results after 10 treatments. Since then, under the repeated sales of the staff, Xiao Li has spent a total of 294,000 yuan to purchase this drug, including various series of boxes. Xiao Li went to the beauty institution 6 times to receive massage and other treatments, and found that he did not achieve satisfactory results. Subsequently, she sued the beauty institution to return 294,000 yuan on the grounds of forced consumption, misleading publicity and unreasonable prices. The beauty salon disagreed with Xiao Li's litigation claim, saying that the contract between the two parties was true and valid, and there was no fraud. The products involved in the case are at a national price and are sold everywhere.
After trial, the court held that from the perspective of legal relationship, this case is more in line with the characteristics of the legal relationship of the service contract, and the service contract has personal exclusivity. Now Xiao Li has made it clear that he will no longer continue to receive services, the contractual relationship in this case has in fact been unable to continue to perform, and Xiao Li's request for a refund of the amount paid is reasonable, but the part of his approved consumption should be deducted. After accounting, Xiao Li has spent a total of 100,000 yuan, and the beauty salon should refund the remaining amount of 194,000 yuan.
In the package sales model of "product + service", the product itself covers the service process, the service behavior of the service provider depends on a specific product or thing, the goods are to provide means or conditions for the service, and the service provider uses the goods in order to complete the service, and the essence of the contract is still the service relationship. Therefore, the beauty salon service contract is collaborative and personally exclusive, and the consumer should be allowed to unilaterally terminate the contract.
The judge of the Haidian District People's Court of Beijing Municipality reminded——
Do three good things, away from "routine service"
First, rational consumption. Consumers should be cautious about prepaid services and products with large recharge, and for prepaid recharges with a rebate nature, beware of merchants running away with money. Leave a good certificate when purchasing products and services, record the identity information of the entity of the operator and the counterparty to the contract, and prevent the beauty salon from being unable to confirm the subject of the lawsuit when the beauty salon cannot confirm the subject of the lawsuit after frequent name changes.
Secondly, when consumers buy "product + service" packages, they should pay attention to the quality of the product itself. In the "Regulations on the Supervision and Administration of Cosmetics" implemented on January 1, 2021, cosmetics are divided into special cosmetics and ordinary cosmetics, common cosmetics for hair dyeing, perming, spot removal and whitening, sunscreen, anti-hair loss cosmetics, and cosmetics that claim new effects are special cosmetics, and the state implements registration management for special cosmetics. Where beauty salons use or provide cosmetics to consumers in their business, they shall perform the obligations of cosmetics business operators. Cosmetic labels are prohibited from explicitly or implicitly having medical effects, and operators must not prepare cosmetics on their own. If consumers find that the beauty salon has the above-mentioned violations, they can report to the drug supervision and management department, and the beauty salon will face administrative penalties such as ordering corrections, warning fines, and suspending production and business.
Finally, scientific supervision, increase the intensity of punishment, so that "routine services" have nowhere to hide. In November 2021, the market supervision department formulated and issued the "Guidelines for the Enforcement of Medical Beauty Advertising", and various localities have also issued interim regulations on the handling of consumer disputes by the beauty salon industry with local characteristics, and established a people's mediation committee for disputes in the beauty salon industry. However, it is not difficult to find that problems such as low administrative penalties and low industry self-discipline standards still exist. For example, for the abuse of medical equipment for cosmetic violations, the fine is only 10,000 yuan, which is no deterrent compared with hundreds of thousands of beauty fees. Therefore, strengthening the level of industry self-discipline, improving administrative punishment standards, and improving relevant policies and regulations will be the action direction of the competent departments to ensure that consumers stay away from "routine services" in the future.
Image from Visual China, IC Photo