Study Of Insurance Fraud

The crime of insurance fraud is a special type of criminal fraud in the insurance field. In China,such a crime was punishable as an ordinary criminal fraud originally,but with the rapid development of the insurance industry, insurance fraud are rapidly growing, showing the growing number,increasingly large scales, the development trend of more and more serious harm. In response to the growth of insurance fraud, NPC Standing Committee passed the"PRC Insurance Law", and the"decisions of punishment the crime of breaking financial order"on June 30, 1995,which ordained the legislative model of the combination of accessory criminal law and separate criminal law,implemented a separation of insurance fraud and ordinary fraud,and provided a legal weapon for the fight against the crime.The 1997 criminal law amendment act followed the above contents. The author believes,that in view of insurance fraud practical research is still not deep enough,we should conduct an in-depth study on the legislative value of indepedence on accusation of the crime of insurance fraud,constitutive elements of crime, special form of insurance fraud,crime and noncrime, boundaries with related crimes, Punishment of the crime of insurance fraud,existing problems and improvement countermeasures on current legislation,which can not only provide guidance for the judiciary, but also provide an example for the legislation, that meanwhile through the systematic study of conviction,hope to promoting the study of criminal law theory constantly enriching and development. Out of the above considerations,the author writes the doctoral dissertation as the topic of"Insurance Fraud Study",which systematically researches the crime of insurance fraud on the length of nearly 290,000 characters.In addition to the introduction,the dissertation was divided into six chapters.The introduction narrates the background and significance of the topic selection, gives a brief summary of the current study,and explains the research methods and the three relationships which is base and deepening, necessary and reality,summary and reference to stress in the process of writing.The author researches the legislative value of indepedence on accusation of the crime of insurance fraud in the first chapter. Because the insurance fraud is a economic crime which damages seriously the insurance system,violates the basic principle of insurance through making use of the insurance contract in the field of insurance, it is necessary to systematically exposite the basic principle of the science of insurance as the research base of insurance fraud in order to provide a support for the whole study. The reality background to research insurance fraud in China is that the rapid development of insurance industry played a significant role in promoting economic and social development. The reality background and the particularity of subject,means,object in the crime of insurance fraud, the serious harm of the current insurance fraud,the significance of criminal law to improve the legal system for insurance provide an adequate basis for criminal punishment of insurance fraud,particularly for the legislative value of indepedence on accusation of the crime of insurance fraud,and criminal legislation timely responded the requirement of indepedence on accusation of the crime of insurance fraud.The second chapter researches the concept and constitutive elements of insurance fraud. Firstly, on the basis of analysing the concept of insurance fraud from as it was, it brings forward the concept of insurance fraud as it was, that is,the crime of insurance fraud is that for the purpose of illegal possession,the policyholders, the insured or the beneficiaries violate insurance regulations,defraud of relatively large amount of insurance money through deliberately making up fictitious insurance object, fabricating false reasons for the insurance accident or exaggerating the extent of their losses, fabricating the insurance incident which never occurred, willfully causing property damage in the insurance accident,or causing the insured death, disability or illness.On this basis, it carries out an analysis of the four constitutive elements of insurance fraud. In the object, it analyses the scientific nature of the double object including the insurance order and property ownership of insurer, and it expounds on the reasons why the criminal law doesnot regulate the harmful results of priciple object being violated and look defrauding the larger amount of insurance money as signs of accomplished offense of insurance fraud. In the objectivity,it proposes a method of integrating the qualitative and quantitative in the objectivity of insurance fraud, meanwhile, analyses the behavior characteristics of insurance fraud,on this basis, elaborates the five behaviors on the 198th of the Criminal law, and conducts in-depth studies on the difficult issues,such as using"underground insurance policy"for insurance fraud,giving up the right of subrogation by malicious collaboration,and so on.In the subject, it explains the general provisions of the insurance fraud subject, Unit, one company and the temporary offices of the preparation for a study of insurance fraud case,and researches the insurance fraud case of unit,one man's company, temporary agencies such as planning department. In the subjectivity, it analyses the need for"the purpose of illegal possession"and"illegal occupation"in the content,makes the points that insurance fraud is only a direct intention crime.The third chapter researches the three special patterns of insurance fraud such as ceasing pattern,pattern of quantity of crime,accomplice pattern. The crime of insurance fraud belongs to consequential offense,there is a pattern of criminal attempt. On the issue how to confirm the"start"time of criminal attempt,the author makes the points that it should be the"start"time point when people"claim", and the "control" point of view should be adopted on the sign of accomplishment. On pattern of quantity of crime,there are three patterns that is overlap of articles of law,implicated offense and see also.In the concurrence circumstances of insurance fraud, fraud, contract fraud,the author believes that the law should take the principle of special law derogating general law applicable legal requirements of insurance fraud. On the issue of implicated offense,the author believes that it is unreasonable that the current"criminal law"only regulates the fourth,the fifth actions in the five actions,hence it is necessary to eliminate the contradiction by the way of establishing the principles of joinder of punishments for plural crimes on implicated offense. In addition,there are means acts which can independently constituting a crime in the crime of insurance fraud,preparatory acts of insurance fraud,accomplice of insurance fraud in 4 198th of the current"Criminal Law"and the overlap of articles of law in 1 the 229th of the"Criminal Law"which is the crime of providing falsified certification. On the above two conditions of concurrence, the perpetrator should be charged and punished by the commited accusation by means acts which can independently constituting a crime and insurance fraud. In the research of accomplice pattern,it focuses on the issue of one-sided accomplice.The author exposites the infraction to legal interest of one-sided accomplice, the function of criminal law to maintain social order, the significance of innovation in theory, the retroaction to the legislative intent and so on,makes the points that the 4 198th belongs to a special provision for one-sided accomplice, and goes on to state that one-sided accomplice should be given its rightful place in the accomplice crime system,and the response of current legislation also indicates the development prospects of one-sided accomplice in fact. Meanwhile, it studies the related issues of indirect guilt. The author believes that those who have no identity can be used to implement insurance fraud by those who have identity,but those with identity cann't be used to carry out insurance fraud by those without identity,the fraud of those without identity under the existing"Criminal Law"can constitute fraud.The author studies the definition of insurance fraud in the fourth chapter. On the boundary of crime or noncrime of insurance fraud,the author centered on the issue which"shuaiying insurance fraud"expands to launch the research.On the subject of processing the cases with contradicts matter which insurance cheat and insurance fraud overlapping, the author launches the elaboration from the independence and characteristic of criminal law as well as the legislation original intention of"Insurance Law"why stipulated contradicts matter,and so on , proposed that the perpetrator of the crime should be held criminally on insurance fraud,if his behavior would offend the law about the crime of insurance fraud. But on the boundary between insurance cheat and insurance fraud, we should focus on the difference of three aspects,that is subjective intent, objective aspect and legal consequence. Meanwhile,the author carries on the analysis about the limits among insurance fraud,common fraud and contract fraud.The fifth chapter carries on the research on punishment issue for the crime of insurance fraud. First it describes the general penalty for insurance fraud,on the basis of which, carries out an analysis about the amount of insurance fraud,the issue of aggravated offense by circumstances, the applicable laws and regulations about the criminal fine of insurance fraud and expropriation. On the identification of amount,the author states that it should be determined according to the amount of the proceeds of crime on the conditions of accomplishment of a crime,but it should be determined in accordance with the amount of the act, while not paid premiums deducted from the amount of crime. In addition,the author puts forward a viewpoint that the insurance fraud is aggravated offense by circumstances,and carries out a preliminary study on the identification of"serious circumstances"and"particularly serious circumstances".In the application of penalties, the author focuses on the analysis of the criminal fine and the confiscation of property. On the criminal penalties for accomplice crime of insurance fraud,the author makes the viewpoint that the amount of accomplice crime should be determined in accordance with the"amount involved",meanwhile,the amount of accomplice crime between natural person and danwei should be determined in accordance with their respective statutory sentence and minimum term and the amount standard of statutory. Finally, the author explores the criminal penalties for the crime of insurance fraud in preparation,attempted crime,desistance of crime.The author launches a systematic study on legislative improvement of insurance fraud in the sixth chapter. Firstly,the author dividually introduces extraterritorial legislation on the crime of insurance fraud, and conducts a comparative study with legislation conditions of insurance fraud in China.Extraterritorial criminal legislation on insurance fraud basically adopts three models including,"Charges subordination","charges independence"and"subsidiary criminal law".The legislation model of"Charges subordination"is not reflected the unique on the crime of insurance fraud in the subject,target,means of crime,social harm and so on,which is short of warning and deterrent function. In varying degree,there are some problems,such as simple regulations on charge in an indictment ,single infraction object,lack of integrated protection on insurance system in the legislation model of"charges independence".The shortcomings of the legislation model of"subsidiary criminal law"which has been adopted by very few countries is its subsidiary which is not conducive to form the criminal legal awareness,being very significant for curbing crime,and goes against playing the preventive function of criminal law. On the creation of the specific law, because the countries adopted the legislation model of"charges independence"basically use the model of behavioral offense,offense to intent and so on,which show very different comparing with insurance fraud in our country. On this basis,the authors believes that it is necessary to seriously consider those issues whether it is subordination charges or specific subordination,what is the value of the legislation mode which Criminal Code and subsidiary criminal law combined,whether the model of accomplishment of a crime should adopt the model of behavioral offense or the model of consequential offense.Then,the author expounds the significance of legislation improvement and the priciples which should be adhered to,focuses on the analysis of legislation defects such as subject of crime,object of crime,charge in an indictment,satutory sentence,and so on,and put forwards the specific ideas for improvement of legislation.Finally, the author proposes the specific ideas that the concept of the crime of insurance fraud should be remodeled,and legislation should be improved.