Study Of The Basic Problem Of Insurance Fraud

Insurance defrauding is a kind of traditional crime in the insurance domain, it's history is almost as long as insurance, and it not only was born with insurance but developed with insurance, which has endangered the insurance development. In order to combat the crime of insurance fraud effectively, the 198th article of the Criminal Law of China prescribes the offense of insurance fraud independently. However, there are still some problems worth study in the aspects of it's legislation and practice. The paper deals with certain common ones and makes specific analyses with the aim of providing service for the criminal legislation and judicial practice. This paper falls into 4 parts as fellow:Part 1 is entitled "A Survey of the Crime of Insurance Fraud." I mainly discuss the basic definition of insurance defrauding, Insurance defrauding means the actions of applicants, assured and beneficiary fabricating insurance objects, insurance accidents and reason, and overstating the extent of damage or making insurance accident in order to defraud insurance compensation illegally; then I introduce the situation and features of the crime of insurance fraud domestically and abroad, survey then analyze the legislation of the crime of insurance fraud ,especially the history of legislation in China.Part 2 is entitled "The Constitutive Characteristics of the Crime of Insurance Fraud", to which I give a detailed and in-depth analysis and propose my opinion. In my opinion, the objects encroached upon by the crime of insurance defrauding are complicated ones, such as insurance regulations of our country and property right of insurance company; objective aspect is cheating insurance company out of its property using means of fabricating insurance object, insurance accident and accident cause, exaggerating extent of damage or creating insurance accident and so on; The criminal subject of insurance defrauding is special one, which must be applicant, assured or beneficiary. Both of natural person and unit can be the subject of this crime. Insurance defrauding only can be the direct intention in subjective side and has criminal purpose by the way of defrauding insurance compensation illegally.Part 3 is entitled "The Problem in the Identification of the Crime of Insurance Fraud." In the practice of judicature, the prime standards believed should be clear, which belong to the crime of insurance defrauding or not, that is to say whether or not the amounts defrauded are more enough and conform to the legal standard, the behavioral persons have the intention of defrauding insurance compensation or not; in subject, Only conforming with the factors above can the crime of insurance defrauding be constituted, otherwise it can not be punished as crime. The crime of insurance defrauding belongs to the result crime, so it has accomplished and attempted forms, If the behavioral person gets more insurance compensation by defrauding, it constitutes accomplished crime of insurance defrauding. If the behavioral person has started the crime, which is unsuccessful, not because of the reason of the behavioral person's intention itself, it should belong to attempted crime; The key of making a distinction between preparation and attempt of fraud of insurance is that we should fix the starting of practicing behavior. The author thinks, only the behavior which making insurance and insurance regulations of our country in danger is the starting of this crime's practicing behavior; When the amounts of crime of insurance defrauding is believed, it should be clear that it is one crime or some crimes. When somebody commits the crime of defrauding, which perhaps has arsonist, the crime of breaching a dike,spreading poison, intentional committing homicide, intentional inflicting injury, unlawful detaining custody and mistreating at the same time, he should be punished with all the crimes according to the stipulations of the second item in the Article 198 Article of 1997 Penal Code. When a person carries out the defrauding, forges certificates, seals of state organs at the same time, he 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. So about common crime which over two persons commit, the act of cheating insurance company out of its property with the collaboration of the inside and the outside should be determined by practicing behavior at first, and then they should be sentenced for the crime which is more serious than others; The judger, certifier of insurance accident and the property evaluator supply the false certificate documents intentionally and offer the defrauding conditions, he should be punished as the accomplice of insurance defrauding according to the stipulations of Penal Code. The article also has discussed the line between the crime of insurance defrauding and that of defrauding,contract defrauding,corruption,post invading and supplying false certificates etc, from which the crime of insurance defrauding could be understood and know ledged clearly.Part 4 is entitled "Thoughts on How to Improve our Legislation and Justice on the Crime of Insurance Fraud." In this part, I fully affirm the advantages of the legislation of 1997 Penal Code, analyze the shortcomings of the legislation of 1997 Penal Code, and then propose my suggestion. For example, I think that this crime must have illegal possession and that not only the special subject but also the insurants should be one of the subjects of this crime; the legal punishment of it should be enhanced; the manifestation style should be perfected. The author hopes that this article could combat and reduce the crime of insurance defrauding effectively, and make the insurance develop at the normal way and supply powerful guarantee for the economic construction in our country.