Study On Some Problems Of The Crime Of Insurance Fraud

As the compensation to the modern economy, insurance plays an important role to maintain the social stability and promote the development. With the enhancement of consciousness in insurance, commercial insurance prevails swiftly in the world wide. However, the crime of insurance fraud is a traditional crime in the field of insurance, whose history is as long as the insurance. The crime of insurance fraud was born and developed with insurance. In the long time, the number of insurance fraud grows too fast, and the insurance fraud develops into"the epidemic disease"in the world-wide insurance industry, which has been forming a great danger to the development of insurance. Almost every country in the world suffers the claim of the insurance fraud. So how to deal with the insurance fraud in insurance business becomes a commonly important question to all the countries.The insurance in China starts later than that in other countries, and because the insurance industry was still not developed, the insurance fraud was not certainly serious. For a long time, the scholars don't pay much attention to it. In 1995, the Insurance Law begins to stipulate that anyone performances the insurance fraud will take his legal responsibility. But there is no specific stipulation in the old Criminal Law, the judicial organ deals with the insurance fraud according to the article 151 and 152, which is to be the general swindle crime.The behavior of insurance fraud is classified as an independent crime after separating from the general swindle crimes, and it is stipulated in the crime of disrupting the order of the socialist market economy when our country's criminal law was revised in 1997. Though the article 198 in the Criminal Law stipulates crime of insurance fraud clearly, there are different understandings of the article's content among the criminal scholars. Arguments are concentrated mainly on comprehension of the constitutive characteristics and the juridical cognizance of insurance fraud, which are the problems the writer will solve in this thesis.This thesis mainly contains three parts:In Part One, the writer does some the research on the constitution of the crime of insurance fraud, and expounds her own idea after deeply detailed discussion. By analyzing the meaning of"identity", the writer comes to the conclusion that the natural subject of the crime is the particular subject, and corporations can also be the subject of the crime of insurance fraud. But the seller, mostly the insurance company in practice, should be added so as to satisfy the need of the sever attack of the crime of insurance fraud. The behavior of insurance fraud can only been actualized on purpose as well as having the motive to occupy the insurance compensation illegally. Illegally obtaining the insurance compensation for indirect intention can't constitute this crime. About the behavior of the crime of insurance fraud, the writer enumerates the common forms in reality on the basis of five ways stipulated in law, which will be convenient in practice. Besides, the writer gives her own view on whether the behavior of making up facts or holding back the truth to swindle the labor insurance and the aged insurance can be judged as the crime of insurance crime.In Part Two, the writer discusses the problem of how to determine the crime of insurance fraud. The mode of consequential offence has been applicable to the insurance fraud crime in criminal law. Therefore, the attempt exists in the crime of insurance fraud, which make the commencement of the swindle behavior is very important. From the writer's point of view, when the applicant makes the claim to the insurance company is regarded as the commencement of the crime of the insurance fraud. On the problem of the yardsticks of the crime of insurance fraud's accomplished offenses, the writer thinks when the applicant gets the compensation money, the crime is accomplished. Then the writer makes an analysis on the number of compensation. The situation of the discontinuance for the insurance fraud has two instances: one is an active discontinuance, and the other is negative discontinuance.The Last Part comes to the joint crimes of insurance fraud. The joint crime is very common in the crime of insurance fraud, and the identity of the dealer makes the crime more complicated. In this thesis the writer divided the joint crime into three forms: firstly, the common people and the insured make a conspiracy to do the crime, which will be regarded as the crime of insurance fraud without any doubt. Secondly, the insured and the intermediary organization cooperate to finish the crime. In this situation, only when the intermediary organization has the same intention with the insured, they are all regarded as the crime of insurance fraud. Thirdly comes to how to identify the nature of the behavior of colluding between the clerk of insurance company and the criminal of the crime. Also, there are so many arguments on this and the writer will propose her own suggestion on the basis of analysis of every theory.The aim of this thesis is to more comprehensively, effectively and drastically fight the crime of insurance fraud, by the way of theoretically analyzing and discussing the crime of insurance fraud, and solve the problem in the identification of the crime of insurance fraud.