A Probe Into Some Issues Of The Crime Of Insurance Fraud

Widely existing in the insurance industry of various countries, insurance fraud is a criminal phenomenon, the emergence of which is closely linked with the development of insurance industry, and as the economy grows and the financial industry develops, crimes of this type also tend to worsen. Given the highly adverse impact of insurance fraud on social stability and economic development, criminal legislation of our country established insurance fraud as an individual crime in 1997, with the subject, facts and punishment of the crime provided all in detail. With research on actualities of domestic insurance fraud as well as the cases in foreign countries, this thesis firstly analyses the cause, harm and legislative countermeasures of insurance fraud, showing the necessity of separating the crime of insurance fraud from other crimes. Then the thesis records the evolution of criminal legislation of insurance fraud of our country and actualities of legislation, and by contrasting legislation on insurance fraud in Criminal Law, Insurance Law, other regulations and judicial interpretations, affirms links among the regulations extant. The highlight of this thesis is the discussion on accomplished offense and unaccomplished offense, single count and several counts, and complicity relating to insurance fraud. On the issue of accomplished offense and unaccomplished offense, it is considered that the person charged with insurance fraud shall be declared guilty only when the consequences prescribed in the legal provisions concerned occur, therefore insurance fraud include the state of unaccomplished offense. The beginning time of the crime is when the criminal begins to concoct stories or conceal the truth. If the insurance fraud is unaccomplished, the amount involved is the criterion for being guilty or not. However, if the insurance fraud is accomplished, the amount defrauded is the criterion. On the issue of single count and several counts, the thesis argues that if a person takes the insurance fraud activities as is described in the first three items, Section 1, Article 198 of the Criminal Law, and commits other crimes in the same insurance fraud activities, he/she should be sentenced for the crime which is more serious than others, according to the conviction rules on implicating criminal in the Criminal Law Principle; if a person has completed the preparatory work of insurance fraud, but not starting applying for indemnity, he/she should also be sentenced for the crime which is more serious than others; if an insurance accident is organized by an entity, and commits other crimes in the same insurance fraud activities, while the subject of the crimes can not be an entity, the entity should be committed the crime of insurance fraud, and the head of the entity and other persons who are responsible for the activities should be committed concurrence of offenses. On the issue of complicity, the thesis holds that under the circumstances that policyholders colludes with staffs of insurance companies, the staffs should be committed embezzlement if they have complicity as staffs of insurance companies, or be committed the crime of insurance fraud if they have complicity not as staffs of insurance companies. In addition, by means of literature, demonstration and comparison, the thesis demonstrates some limitations in the legislation of the crime of insurance fraud as follows: Criminal Law define the subject of the crime of insurance fraud as common subject, which goes against conviction andpunishment in various cases of insurance fraud, and increases difficulties to handle complicity had by persons with different positions; the Criminal Law describes the behavior of insurance fraud item by item by means of narrative facts about a crime, without covering all means of insurance fraud in reality, and thus is of no use in classifying new means emerging with the passing of time, which is not conducive to fight crime; the punishment of insurance fraud, one of the crimes of financial fraud enacted individually by the Criminal Law, is lighter than that of crime of swindling as well as other crimes of financial fraud as well, which is obviously unreasonable. Considering the limitations of legislation stated above, this thesis suggests that the Criminal Law should define the subject of the crime of insurance fraud as common subject, extend its description to cover more comprehensive means of insurance fraud, and enhance the upper limit of punishment of the crime of insurance fraud at least to that of crime of swindling and other financial fraud.