Research On Issues Of Insurance Fraud Crime

The crime of insurance fraud is a kind of serious crime of economic fraud. When revising the criminal law in 1997, our country separated it from the ordinary fraud and regarded it as a single crime. It was also regulated strictly and clearly in law. However, so many problems happened. Owing to the lawmaker's limited knowledge about the crime of insurance fraud and its own complicated characteristics, there is much difference on understanding it in theoretical circle.This thesis aims at the common and difficult problems in the characteristics of its composition and specific recognition with such methods as comparison analysis and law analysis, using the basic theory of the criminal law ,combining with the practice of criminal justice as well as analyzing the definitions and characteristics of the crime of insurance fraud, comparatively studying the legislation at home and abroad, I think ,the lawmaking mode that the crime of insurance fraud which is independently stipulated in penal code is worthy of being affirmed, and is in accordance with the real condition of this fact that up to the present moment China's judicial system is lack of the realization of the crime of insurance fraud and the staff has limited knowledge in enforcing the law.In addition, this thesis analyzes the action made by suicide except five legal action of the crime of insurance crime, and respectively puts forward some ways to solve four kinds of suicide: common suicide, collusion-suicide, attempted suicide and forced suicide. That's, two conditions can not be cognized as the crime of the insurance fraud since the insurance contract has been established within 2 years or more than 2 years combining with the clause 65 of the insurance contract. Before the insurer the beneficiary and the insurant have no intention to collude, both the insurer and the beneficiary qualitatively determine the action that the insurer defrauds the company of the death pension, laying that the suicide of the insurer is the death from the accident. The writer thinks that it can not be classified in the fifth mode of Article 198 in the criminal law but in the second mode of Article 198. to the attempted suicide, people should make it clear whether the insurant can make a claim to the insurer. If the insurant doesn't make any claim to the insurance company for the injures after the attempted suicide, the insurer can't be investigated any responsibilities. If the insurant fails to kill himself and defrauds the insurance company of the pension for death in terms of the injures, he or she will be investigated the law liabilities in accordance with the second mode of Article 198,to the fact that the insurant is forced to kill himself or the insurer and the beneficiary instigate,help or force the insurant to kill himself,and then the insurant makes a claim to the insurance company. In view of it, this thesis will accurately cognizes the penalty or liability to the insurant as per the above-mentioned facts.This thesis has given the definition of each kind of the crime, and differentiates this one and that one of the crime of insurance fraud. Between the crime and non-crime, firstly, the writer emphasizes on whether the two questions: comparatively larger amount and the purpose of illegal possession become the necessary elements about which at present people have the biggest disputes. As the current law stipulates the crime of insurance fraud as amount-related offense, in judicial practice, there are so many calculating standards such as criminal amount obtained, criminal amount oriented and criminal amount paid and all the criminal amount are analyzed. This paper points out that only criminal law oriented can become the way to solve attempted crime in the crime of insurance fraud. Then, between this crime and that one, the writer respectively explains the relations and differences between the crime of insurance fraud and common fraud,the crime of insurance fraud and contract fraud, which can provide clear way to the further difficult problems in judicial cognizance.Just to this viewpoint that whether the crime of insurance fraud needs the purpose of illegal possession, at present, the theoretical circle also has a great dispute. Comparing the legislation at home and abroad,the writer believes that our legislation of the crime of insurance fraud should take the purpose of illegal possession as the essentials ,but due to many disputes in practice, also puts forward a viewpoint that purposeful composing elements should be clearly stipulated in the criminal legislation of the crime of insurance fraud.Presently, in practice great disputes also exist in the action of fraud that the insurance staff,expert witness and belongings-evaluating staff perform. When stating that the insurance staff and insurer jointly collude to act,at first, the writer analyzes the meaning the joint crime and the duty crime, and thinks that due to the behavioral traits such as the dual particularity of main body and action dualism, the joint crimes caused by the insurance staff and insurer become very complicated among the judicatory cognizance. The representative viewpoints at home and abroad are now:principal deciding theory, uniform conviction theory, utilized duty theory, perpetrator deciding theory and key-role deciding theory while the five viewpoints ,to some degree, have different defects. Principal deciding theory misinterprets the theoretical function of principal and aliases that the meaning of regulating the principal mainly does not lie in conviction but in sentencing, therefore, the defect is so obvious. uniform conviction theory ignores the fact that the insurance staff, as a special identity, can play a probable role in joint crime, in the joint crime of insurance fraud,the insurance staff play a false part of claim while this part ,to the insurance staff, has the characters of both corruption and position encroachment .it also lacks of evidence to convict all the joint crimes as the crime of insurance fraud. Utilized duty theory notices that the insurance staff play a decisive role in the course of the joint crimes, comparatively, it is more reasonable than the above-mentioned ones .however, this theory exaggerates the influence of the insurance staff, as a special identity, to the character of the joint crime and ignores the condition that the insurance staff take part in the joint crime without duty. So the conclusion of this theory is certain one-sided. Perpetrator deciding theory ignores the labor division between the insurer and the insurance staff during the crime. If the insurance staff in the non-state-owned insurance company use the position to collude the insurer for cheating the insurance amount, the joint crime of position encroachment comes into being. But its legal penalty outweighs the position encroachment. Thus, the insurer is punished according to the latter one because of his identity of the insurance staff. So it is hard to match it with the victim accordingly. Comparatively, key-role deciding theory is the most reasonable to handle the crime, anyway, it has the common defects as the principal deciding theory, because this theory is supposed that only one key-role exists in the joint crime. So it is also hard to judge whether the key-role is complicated in practice. If both the insurance staff and the insurer collude each other for the purpose of illegal possession of the insurance, they both have the behavioral domination and then become the joint principal offense. At this time, judging which is the key role is very difficult, and we can't use this theory to explain clearly. By comparison analysis, the writer puts forward such suggestion that using the reasonable factors of the utilized duty theory and the key-role deciding theory accurately cognizes it.Among the crime of insurance fraud made by the expert witness,authenticator and belongings-evaluating staff ,the writer puts forward and analyzes Item 4 of Article 198 in criminal law and regards it as attention clause and explains its function. so people can differentiate the expert witness,authenticator and belongings-evaluating staff and so on. and definite them as accessory and unilateral accomplice. The insure is the principal crime and the expert witness,authenticator and belongings-evaluating staff are accessory offenders who mean that they provide the evidence. If the expert witness deliberately supply a certain condition to the insurer for fraud, and the action comes up to the composing elements, at this time, once the legal right is infringed or threatened. Both belong to the joint crime of the insurance fraud. The expert witness,authenticator,belongings-evaluating staff and the insurer of the crime of the insurance fraud probably become unilateral accomplice. The negative theory and positive theory exist whether at home or abroad, this thesis analyzes the defects of negative theory, it is impossible to indulge the criminal if as the negative theory says that the punishment is composed with the false documents by the staff of the intermediary organization. The writer believes that in practice the unilateral accomplice probably exists ,but in the judicial practice it is really very hard to prove that under the condition of the expert witness of the insurance accident not consulting the insure to be prepared for swindling compensation while knowing that the insurer secretly provide the false document after swindling the compensation. However, people can't deny this possibility. And further explain the theoretical basis of composing the joint crime through positive theory.