| Insurance fraud is a severe economic crime. A rigorous and explicit legal definition of insurance fraud is given in Article 198 of our 1997 Penal Code. Article 183 gives a rigorous definition of the professional crimes committed by insurance company employees. Moreover, Article 229 says that if someone provides fake documents for the insurance fraud, even though this person has no subjective intention to conspire with the insurance fraud, the appraiser, the witness, and the assessor of the insured accident, this person is committing the crime of providing fake documents. Since insurance fraud takes many different forms and can be extremely complicated, the definition of the crime in our Penal Code has various shortcomings and limitations.This thesis will discuss the character, cause, and legislation of insurance fraud. Having consulted the theory and practice of other countries' legislations on insurance fraud, as well as researches by the experts and scholars in our country, I give an in-depth analysis of the concept, constitutive characteristics, identification, and punishment of insurance fraud, as well as problems in our legal practice of insurance fraud laws. I shall also give suggestions about how to improve our legislation on insurance fraud.The structure of the thesis is as follows:Part 1 is entitled "A Survey of Insurance and Insurance Fraud." I shall introduce the basic concept of insurance, the characters of insurance such as its being compensational, contractual, mutual-beneficial, and the classifications of different kinds of insurance. I then survey the situations of insurance fraud domestically and abroad, as well as that of the legislations on insurance fraud domestically and abroad. I also discuss the characteristics of the people committing insurance fraud: their being subjectively deceptive, the diversity of the criminals, the severity of the consequences of the crime, the various methods of their crime, the combination of intelligence and cruelty of the criminals, and the non-transparency of their criminal acts.Part 2 is entitled "The Constitutive Characteristics of Insurance Fraud." I give a synthesis of various definitions of the crime offered by scholars in our country. I eventually define the crime as follows: insurance fraud is the act of the insurer, the insured or the benefactee defrauds a large amount of insurance money through breakinginsurance laws, deception, lie, and so on. I then give detailed and in-depth discussion of the object of the crime, the objective feature of the crime, the subject of the crime and the subjective features of the crime. I agree with the "Particular Subject Thesis" and the "Complex Object Thesis." But I also offer some of my own views.Part 3 is entitled "The Identification and Punishment of Insurance Fraud." First, I discuss the distinction between crime and non-crime. Then, I discuss the distinction between insurance fraud and fraud, between insurance fraud and contract fraud, between insurance fraud and corruption. Right after this, I discuss the important distinction between "the finished" and "the unfinished" stages when we identify the process of the crime. Finally, I discuss the punishment for insurance fraud.Part 4 is entitled "Thoughts on How to Improve our Legislation on Insurance Fraud." I think that it is an internationally common practice to mention explicitly the subjective intention in the definition of insurance fraud, but there is no mentioning of subjective intention in out Penal Code. I suggest that we add the definition of subjective intention when we revise our Penal Code. Our Penal Code gives insurance fraud less severe punishment than other crimes of fraud. I believe we should give more severe punishment in order to maintain the coherence of our penal code and make the punishment really fit the crime. Our Penal Code defines the subject of the crime as particular subject; I suggest that we expand the subject of the crime into general subject. With regard to the methods of the crime, our Penal Code lists very concrete and spec... |
