Disagreements
On the facts of this case, law enforcement officials held three different opinions during the discussion of the case.
The first opinion is that the parties in the business premises display expired cosmetics, should be recognized as the sale of expired cosmetics. The behavior violates the "Product Quality Law" Article 35, should be punished according to the provisions of Article 52 of the law, that is, ordered to stop selling, confiscate the illegal sale of products, and impose illegal sale of products twice the amount of the value of the fine; illegal income, and confiscate the illegal income; the circumstances are serious, the revocation of the business license; constitutes a crime, shall be investigated for criminal responsibility. But because the parties in the use of the process is not charged and the product has not been used, so the case should be calculated according to the purchase price of the value of the amount and in accordance with the above provisions of the penalties. The second opinion is that the party in its business premises display expired cosmetics, a violation of the "Cosmetic Hygiene Supervision Regulations" Article 13 (5), should be in accordance with the "Cosmetic Hygiene Supervision Regulations Implementing Rules" Article 46, paragraph 1 (c) of the provisions of the treatment, that is, the penalty is to suspend production or cease operation of cosmetic products 30 days within the penalty, the operator and can be sentenced to confiscate the illegal income. Operators and can be punished by confiscating the illegal income and illegal income of two to three times the fine penalty. However, because the case has not been seized with the sale of expired cosmetics illegal income, and therefore should be ordered to stop operating cosmetics for a certain number of days and will be supervised the destruction of expired cosmetics. The third opinion that "Product Quality Law" and "Cosmetic Hygiene Supervision Regulations" does not provide for the use of beauty salons and other units of expired, spoiled cosmetics how to deal with the law enforcement agencies should not be a separate charge for the use of cosmetics behavior is recognized as a sales practice. Administrative organs should be in accordance with the spirit of jurisprudence of the law shall not be authorized to do, shall not make the relevant penalty decision, but can order the expired cosmetics to be harmless destruction.Analysis
The author agrees with the second opinion.
But want to accurately determine the beauty salon, hotel use of expired cosmetics can be punished, and how to punish, should correctly understand the following aspects. First, the administrative law enforcement agencies seized beauty salons, hotels, display, inventory expired, spoiled cosmetics, in the absence of direct use of cosmetic evidence seized, whether the parties to the use of expired, spoiled cosmetics? To understand this problem, we should understand the administrative penalty of the parties to the violation of law should be proved to meet what standards. In the evidence of jurisprudence and the current three major procedural law, the facts of the case usually have three kinds of standards: First, the standard of proof beyond a reasonable doubt, that is, for the proof of the object or violation of the facts, has been excluded from the common sense or based on the suspicion or deduced from the evidence that the parties to the existence of unlawful acts have reached the level of certainty. Second, the clear advantage of the standard of proof, also known as clear and persuasive or clear and convincing standard. Usually can be understood as the existing evidence to prove the existence of illegal facts of the possibility or relevance of the party far greater than the possibility of non-existence, that is, the existence of the corresponding evidence of illegal facts. This standard is usually used by administrative organs to prove the existence of illegal acts or facts. The reason for the adoption of the standard of proof, mainly taking into account the administrative organs of administrative law enforcement efficiency and administrative law enforcement means of limited, its purpose is to quickly restore the administrative order destroyed by the party. Specific to this case, the party in the business premises display expired cosmetics, combined with its beauty salon services and the use of the product to maintain hair color and other facts, it can be determined that the party to provide customers with hair shampooing and conditioning services, the possibility of using the expired cosmetics is far greater than the possibility of not using. In accordance with the obvious advantage of the standard of proof, the administrative organs can be recognized that the parties have used expired, spoiled cosmetics violations. Third, the advantage of the standard of proof, also known as the high degree of probability, high probability standard. The standard is mainly applicable to civil litigation, that is, the party with the burden of proof to prove the fact that the evidence provided to prove the existence of the fact is greater than the possibility of non-existence, that is, to complete the proof of proof, in the absence of evidence to the contrary should be ruled in favor of the party. The case to take advantage of the standard of proof, combined with the administrative organs seized the relevant facts, in the absence of evidence to the contrary, the premise that the parties can also be found to exist in the use of expired products of the illegal behavior. Second, as mentioned above, beauty salons, hotels in the business premises display expired cosmetics, can be recognized as the use of expired cosmetics, but the use of cosmetics without additional charges, whether it can be further recognized as the use of business or sales behavior? The author believes that the use of cosmetics behavior is recognized as business or sales behavior there is no legal obstacle and has a legal basis. First, the beauty salon, hotel as a market entity, the pursuit of profit is its nature, the use of cosmetics to provide customers with appropriate services, the cost of cosmetics will inevitably be added to the services it provides and accounted for the corresponding price or value. Second, with reference to the newly revised "Drug Administration Law" Article 119 provides that even if the use of drugs in the provision of medical and other services, there is no additional charge for drugs, can still be "in accordance with the sale of" penalties, the field of cosmetics can be referenced to this provision of the presumption of law. Third, the former Ministry of Health in the "hotels, hotels on the use of cosmetics related issues of the Reply" (hereinafter referred to as "Reply") in the clear approval, hotels, hotels in the use of cosmetics should be recognized as business practices, the illegal income of such cosmetics should be based on the purchase price and the market price of similar cosmetic products to determine. Fourth, newly released "Cosmetics Supervision and Administration Regulations" Article 42 provides that beauty salons, hotels, etc. in the operation of the use of cosmetics or provide consumers with cosmetics, should fulfill the obligations of the cosmetic operators under these regulations. Therefore, in accordance with the obligations must be responsible for the jurisprudence, the parties should bear the legal responsibility of cosmetic operators. Third, beauty salons, hotels, the use of cosmetics in the absence of another charge, the value of its products, how to calculate the amount? As mentioned above, beauty salons, hotels as a market entity, it is bound to provide services to the cosmetics used in the corresponding cost of services, so it can be used in accordance with the cosmetic charges are recognized. In its use of cosmetics without price, in accordance with the "Reply", according to its purchase price and the market price of similar cosmetics to determine the value of the goods or illegal income. In law enforcement practice, the determination of the market price, the administrative law enforcement departments can be based on the sales price of similar products more than three operators for the average calculation. In summary, I believe that beauty salons, hotels, the use of expired, spoiled cosmetics, should be based on the "Cosmetic Hygiene Supervision Regulations Enforcement Rules," Article 46 qualitative penalties. Cosmetics Supervision and Administration Regulations" after the implementation of such cases can be characterized according to the provisions of Article 42 of the Regulations, according to the provisions of Article 60 of the Regulations dealt with according to law.