Medical institutions with legal business qualificationsThrough the signing of contracts or agreements, one or some of the departments within the contractor are entrusted to the contractor for operationThe contractor shall pay a certain management fee or profit sharing to the medical institution.
The most striking feature is that the contractor has neither independent legal personality nor medical qualifications.
Case 1
Basic facts of the case
On May 10, 2019, Company A, as Party A, signed the Cooperation Agreement with Party B and Company B, stipulating that if Party B's surgical customer undergoes a loan surgery in Party A's clinic, Party B's liability and legal liability arising from medical accidents or disputes caused by non-Party A shall be borne by Party B and Party A shall have nothing to do with it. If Party A's medical institutions are suspend, closed or sealed as a result of this, Party B shall bear all the losses of Party A and shall give Party A a compensation of 3 million yuan.
Later, a dispute arose between Party A and Party B over the validity of the Cooperation Agreement, and Company B sued the court.
Court Views
1. The validity of the Cooperation Agreement.
The court held that a comprehensive judgment should be made in accordance with the rule path of identifying mandatory provisions, examining the object of regulation, and weighing legal interests, so as to determine whether the contract is valid.
First, identify the mandatory provisions. The identification of mandatory provisions can be grasped from two dimensions: formal standards and substantive standards. In order to facilitate identification, it can be judged from the aspect of formal standards first. The formal criterion is mainly to see whether a certain norm contains words such as "shall", "must", "shall not", "prohibit", etc. Generally speaking, all norms with the words "must" and "prohibited" are mandatory; Norms with the words "shall not" and "prohibit" are usually mandatory, but some are exceptions to adjudication, advocacy or semi-peremptory norms. When there is no formal criterion to identify, it can be determined on the basis of the substantive criterion, that is, the substantive aspects such as the object to be regulated by the provision and the legal interests to be protected are analyzed. In this case, Company B asserted that the Partnership Agreement violated the prohibition of Article 23, Paragraph 1 of the Regulations on the Administration of Medical Institutions, which specifically stipulates that "the Practice License for Medical Institutions shall not be forged, altered, sold, transferred or lent." According to the rules for identifying mandatory provisions, the "Regulations on the Administration of Medical Institutions" is an administrative regulation formulated by ***, which is clearly stated as "shall not be lent", and from the content of its expression, it does not belong to the adjudicative norms, nor does it have the meaning of advocacy and semi-mandatory, therefore, it can be judged that the clause is mandatory.
Second, examine the object of the specification. The object of mandatory regulation includes many aspects, including not only the expression of intent itself, but also the qualifications of the subject, the form of the parties to the contract, time, place and other elements, and even the performance of the contract. However, the violation of mandatory provisions by a certain normative object does not necessarily lead to the invalidity of the contract, and a determination should be made according to the specific content. First, the content of the contract is illegal. As the main form of transaction, the contract itself generally does not have any illegality, and the illegality of the content is mainly manifested in the illegality of the subject matter. If the content of the contract is illegal, it indicates that the act is prohibited by laws and administrative regulations, and in principle it shall be found invalid. Second, the qualification of the subject is illegal, and the elements of the contract such as the type, place, duration and quantity of the parties are illegal, but the constituent elements of the contract do not comply with the mandatory provisions, and the legal acts in the contract themselves are not prohibited by laws and administrative regulations, so in principle, they should not be found invalid. Third, when the content, subject qualifications and other elements of the contract are in accordance with the provisions of the law, but the parties perform the contract in an illegal manner, the validity of the contract will generally not be affected, and only the parties who have committed the illegal acts will be subject to administrative liability or even criminal liability. The contract in this case was a Cooperation Agreement signed between Company B and Company A, and the business cooperation model agreed by the two parties was that Company B would use a number of clinics on the first floor of a medical aesthetic clinic to carry out medical aesthetic activities for a fee, and could also borrow medical resources such as operating rooms and doctors from Company A, and even Company A made a commitment that A Medical Aesthetic Clinic would have legal operating qualifications during the cooperation period and the liability for breach of contract. However, according to the relevant provisions of the Measures for the Administration of Medical Cosmetology Services issued by the National Health and Family Planning Commission, units or individuals carrying out medical cosmetology activities shall apply to the health administrative department for approval and registration. In fact, Company B did not obtain any license qualifications and could not legally carry out any medical aesthetic activities. However, through cooperation with Company A, Company B contracted a number of clinics of A's medical aesthetic clinic, and A's medical aesthetic clinic provided it with legal operating qualifications and other convenient conditions, so that Company B could carry out medical aesthetic activities. Company A's act was essentially a disguised lending of the Medical Institution Practice License, and the Medical Institution Practice License was obviously a negotiable item prohibited by administrative regulations, and the parties were not allowed to use it as the subject matter for trading, so the content of the contract constituted an illegality. Since this case does not involve the qualifications of the subject and the performance of the act, this court will not mention it here.
Finally, the legal benefit measurement. After the validity or invalidity of the contract is preliminarily determined through the above-mentioned links, the validity of the contract shall also be finally determined through the legal benefit measurement test and correction. The measurement of legal interests usually includes four aspects: first, whether the legal interest protected exceeds the legal interest of freedom of contract; second, the consequences of the violation; third, whether the issue of transaction security protection is involved; Fourth, whether the contract has been performed. In this case, the administrative regulation on the basis of which the validity of the contract was determined was the Regulations on the Administration of Medical Institutions, the legislative purpose of which was to strengthen the management of medical institutions, promote the development of medical and health undertakings, and protect the health of citizens. If the operator of a medical institution is allowed to freely enter into a contract with others and lend the "Medical Institution Practice License" without authorization, it will inevitably lead to the inability of the regulatory department to effectively manage the medical institution, and the personal health of citizens cannot be guaranteed, which will ultimately damage the public interest. Therefore, from the perspective of the comparison of legal interests, it is obvious that maintaining public health order and protecting citizens' personal health is higher than protecting freedom of contract. From the perspective of the consequences of the illegal acts, although the lending of the "Medical Institution Practice License" in this case does not constitute a criminal act, it clearly constitutes an administrative violation, and even the imposition of administrative penalties on the parties is not enough to curb such illegal acts. From the perspective of transaction security protection, although the Regulations on the Administration of Medical Institutions only prohibit medical institutions from lending the Practice License for Medical Institutions, as a borrower, it should also be regulated by the provisions, and cannot borrow other people's certificates to engage in illegal medical activities knowing that it has not obtained a practice license, so there is no need to consider the issue of transaction protection of Daie Company in this case. Finally, from the perspective of contract performance, the premise of contract performance ** contract illegal defects is that the illegal act is minor, and the determination of validity will not harm the public interest. In this case, the act of lending the "Medical Institution Practice License" fundamentally harmed the public interest, and the illegal act was serious in nature, and the contract could not be defected through the performance of the contract. Therefore, taking into account all aspects of the legal benefit measurement, it can be determined that the Cooperation Agreement is an invalid contract.
Through the above analysis, it can be seen that the Cooperation Agreement signed between Company B and Company A should be invalid because it violates the mandatory provision of Article 23, Paragraph 1 of the Regulations on the Administration of Medical Institutions.
2. Civil liability after the contract is invalid.
In this case, Company B and Company A, as commercial entities, should have known that they should have applied to the competent health authority for an administrative license to engage in medical cosmetology services before they could engage in business activities, but the two companies still borrowed the Medical Institution Practice License in disguised form through contracting, so that Company B could carry out medical cosmetology activities. Therefore, both Company B and Company A were at fault at the time of signing the contract and should bear civil liability, and the economic losses of the two should be borne separately. According to the principle of fairness, after balancing the interests of both parties, the court held that Company B had no right to request Company A to return the contract fee of RMB 2 million it had paid, except that it could request Company A to return the deposit of RMB 200,000 it had paid, and accordingly, Company A had no right to request Company B to compensate for any losses. As for Company A's claim that Company B should compensate for the occupancy fees from March 20, 2020 to June 19, 2020, the court held that the parties had confirmed that Company B had moved out on March 24, 2020, and that Company B had not caused actual losses to Company A, so this court did not support this part of its counterclaim.
Case 2
1. Brief facts of the case
On May 15, 2019, Lu, a consumer from outside the province, reported that he received medical cosmetology surgery in the operating room of a medical cosmetology institution in the city on March 28, 2019 under the introduction of a local middleman, Meng, and the surgeon was Jiang, the "president" of a plastic surgery hospital in South Korea. After the failure of Lu's operation, he questioned the qualifications of Jiang and a medical cosmetology institution in the city, so he reported to the Comprehensive Supervision and Law Enforcement Bureau of the Municipal Health Commission and asked for investigation and punishment. After the preliminary investigation, the Comprehensive Supervision and Law Enforcement Bureau of the Municipal Health Commission immediately organized supervisors to supervise, inspect, investigate and collect evidence from Jiang, the person in charge of a medical beauty institution in the city and a company in the city.
(1) Inspect the situation
On March 28, 2019, Li, a staff member of the inquiry, lent the operating room of the institution to Jiang, the person in charge of a company, for the implementation of "mid-face wrinkle removal" without charging any fees.
(2) Case handling
On June 18 and 28, 2019, the Municipal Health Commission issued the "Advance Notice of Administrative Punishment" and the "Administrative Penalty Decision" to Jiang, the person in charge of a company, and a medical cosmetology institution, respectively.
The handling of Jiang, the person in charge of a company: "Jiang is a non-physician, practiced independently in a medical cosmetology institution in the city on March 28, 2019, and charged 60,000 yuan for surgery" violated the second paragraph of Article 14 of the Law of the People's Republic of China on Medical Practitioners, and was ordered to make immediate corrections, confiscate 60,000 yuan of illegal gains, and impose an administrative penalty of a fine of 60,000 yuan in accordance with Article 39 of the Law of the People's Republic of China on Medical Practitioners.
The handling of a medical cosmetology institution: "The institution did not implement the medical quality and safety management system in accordance with the regulations, lent the operating room to a non-physician Jiang to carry out medical cosmetology surgery without authorization, and failed to fill in the surgical records and other medical records as required" violated Article 10 and Article 15, Paragraph 1 of the "Regulations on the Prevention and Handling of Medical Disputes", and was given a warning and fined 5,000 yuan in accordance with the first and fourth items of Article 47 of the "Regulations on the Prevention and Handling of Medical Disputes".
Jiang, the person in charge of a company, and the parties of a medical cosmetology institution waived the hearing and consciously performed the administrative punishment decision.
The total amount of fines and confiscations in each case was 170,000 yuan.
Basic Health Care and Health Promotion Act
Article 39, paragraph 4, medical and health establishments must not lease or contract medical departments to the outside world. Non-profit medical and health establishments must not distribute or indirectly distribute income to funders or organizers.
Article 100: Where the provisions of this Law are violated by any of the following conduct, the competent department of people's health at the county level or above is to order corrections, confiscate unlawful gains, and impose a fine of between 2 and 10 times the amount of unlawful gains, and where the unlawful gains are less than 10,000 yuan, it is to be calculated as 10,000 yuan; The directly responsible managers and other directly responsible personnel are to be given sanctions in accordance with law
(1) ** The establishment of medical and health institutions and other organizations to invest in the establishment of medical and health institutions with non-independent legal personality;
(2) Medical and health establishments lease or contract medical departments;
(3) Non-profit medical and health establishments distribute or indirectly distribute income to funders and organizers.
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