| According to the White Paper on the Medical Beauty Industry in 2020,the market size of the medical beauty industry has reached 195 billion yuan,ranking first in the world.However,the legal and compliant medical cosmetology institutions only account for 12% of the whole industry,and the legal doctors with three complete certificates only account for 28% of the whole industry,thus increasing the number of medical cosmetology disputes.Through the study of the current legal provisions and the analysis of judicial practice,the author found that there are still some defects in the relevant legal provisions of medical cosmetology disputes.Therefore,this paper will use empirical analysis,comparative analysis,literature review and other comprehensive methods to carry out the study,and put forward corresponding suggestions on the relevant legal provisions of medical cosmetic disputes.Medical cosmetology belongs to the medical profession,but it has its particularity.Medical cosmetology is both medical and consumer,involving knowledge of medicine,aesthetics,psychology and other disciplines.It aims to beautify appearance,but is not conducive to health.Based on the analysis of big data of medical cosmetology disputes in the past 10 years,this paper found that private hospitals accounted for a large proportion of medical cosmetology disputes,and the trial period was long.There are also many factors that cause medical cosmetology disputes,including law,medical source and beauty seekers themselves.At present,the legal provisions on medical cosmetology disputes in China are mainly distributed in different levels and different natures of legal norms such as the Regulations on Handling Medical Malpractice,the Civil Code,and the Law on the Protection of Consumer Rights and Interests.This paper analyzes the legal provisions of medical cosmetology disputes one by one,analyzes the legal principles and supplemented by practical cases.If the beauty seekers are not harmed by their inherent interests in the medical cosmetic disputes,the disputes can be applied to the contract part of the Civil Code.If they are harmed,the contract part of the Civil Code and the tort liability part can be applied to the disputes.The academic community has not reached a consensus on whether the Consumer Rights Protection Law and the principle of punitive damages can be applied on the basis of the medical service contract.If the judges in the application of the law,there will be different cases of the same case.At present,the legal provisions related to medical cosmetology disputes have the following problems."Regulations on Handling Medical Malpractice" The scope of application of medical malpractice is narrow,the calculation base of damage compensation is out of The Times,the compensation is one-size-fits-all,the upper limit is low,and it is difficult for people seeking beauty to get compensation.It is difficult to guarantee the expected benefits of the action of breach of contract in the civil code,the limitation of the principle of "fault liability" applied to the action of tort,the unreasonable standard of fault judgment of "medical level theory" and the limitation of the subject.The legal nature of the Law on the Protection of Consumer Rights and Interests is not clear,and the application of punitive compensation system is limited.In view of the above situation,this paper puts forward the following suggestions.The Regulations on the Handling of Medical Malpractice should expand the scope of application of medical malpractice,discard the standards that are not in line with The Times and re-set the base of compensation,and include death compensation and subsequent remedy in the compensation of accident,and increase the multiple of compensation.The Civil Code typifies the medical contract,clarifying the applicable subject,rights and obligations,etc.The fault principle of tort action applies to the presumption of fault under special circumstances,that is,the medical institution and the beauty seeker clearly make a preoperative agreement on the medical cosmetic results,and a stricter presumption of fault should be applied to reduce the burden of proof of the beauty seeker.In other cases,considering the unknown nature of medical behavior,the fault liability is still applicable.The fault judgment of tort action adopts the standard of "reasonable doctor",which is more flexible in application.In the context of "multi-point practice",doctors in commercial medical cosmetology institutions should take part of the responsibility for medical cosmetology accidents.Medical cosmetic disputes should apply to the "Consumer Rights and Interests Protection Law",beauty seekers will be identified as consumers,to protect the vulnerable beauty seekers;Adopting the theory of "two requirements",the beauty seeker only needs to prove the damage result to identify the medical institution fraud,and attaches importance to the rights and interests of the beauty seeker.In addition,attention should be paid to the improvement of other relevant systems,including the establishment of medical cosmetology insurance system,the improvement of medical cosmetology dispute resolution mechanism,the construction of professional trial collegial panel and the construction of third-party mediation team composed of professionals. |
PDF Full Text Request