Research On Offenses Counting Problems Of Insurance Fraud

In recent years along with the rapid development of Chinese insurance industry,the crime situation of insurance fraud has been increasingly severe in our country, sohow to contain and prevent this crime also becomes an urgent problem at the moment.Because the crime means of insurance fraud is very complicated and interdisciplinary,this paper discusses its offenses counting problems in combination with some typicaljustice cases by the methods of inductive reasoning and empirical analysis.Firstly, the legislation of insurance fraud in our country is introduced. This kindof criminal behavior not only causes great damage to insurer, but also harms theinterest of insured and policy-holder. It violates citizens’ personal rights or propertyrights with serious social harmfulness. International legislation on insurance fraudmainly includes “charges independence”,“charges subordination” and “subsidiarycriminal law”, then our country belongs to “charges independence” at present.Because a prerequisite for compensation is the happening of insurance accident,insurance fraud generally contains means behavior and purpose behavior. Moreover,some logical relationships maybe exist between them. The first paragraph of Article198provides five insurance fraud actions. In accordance with the second paragraph, ifthe latter two actions constitute other crimes at the same time, this behavior should becombined punishment for multiple crimes. Insurance fraud has many issues in theaspect of offenses counting for these two paragraphs.Secondly, offenses counting criterions and the crime number forms of insurancefraud are elaborated. Offenses counting criterions include objectivism standard,subjectivism standard, constitutive elements standard, crime constitution standard andso on. For conforming to the judgment essence, crime constitution standard isselected as basic criterion by comparison. Afterwards, the specific crime numberforms of insurance fraud are introduced briefly. Including law concurrence,imaginative joinder and implicated offense, these special criminal patterns whichclose to insurance fraud are emphasized. Thirdly, the offenses counting conflicts of insurance fraud caused by naturalperson are analyzed. Insurance fraud is based on insurance contract and separatedfrom general fraud. When it occurs law concurrence with fraud or contract fraud, theprovisions of insurance fraud ought to be applied in priority. The commencement ofthis crime is that actor begins to apply for insurance money. If actor just makes theinsurance accident and doesn’t ask for compensation, he should be punished asimaginative joinder offense. If actor takes the first three means to insurance fraud, heis likely to violate the crime of providing false documents and that’s when he shouldbe punished as implicated offense. Defrauding relatively large amounts of insurancemoney is the accomplished standard of this crime. If actor takes the latter two meansto make insurance accidents, means acts constitute other crimes but insurance fraud isattempted, he should be combined punishment for several crimes of means acts andinsurance fraud.Finally, the offenses counting conflicts of insurance fraud caused by unit areconsidered. The key to distinguish between unit crime and natural person crime iswhether unit member’s behavior reflects unit own will or not. Natural person in thename of unit and wholly owned one-man company by natural person are in form thesubjects of unit crime. For the former, criminal behavior is dominated underindividual will and doesn’t reflect unit will. For the latter, one-man company can’tform unit interest apart from the shareholder’s personal interest and in fact the will ofone-man company is the only natural person shareholder’s declaration of will.Therefore, in both cases we should treat them as natural person crime. When unittakes the latter two means and the crimes of means behavior are only for personalliability on the basis of criminal law, unit should be sentenced to the crime ofinsurance fraud. To the natural persons who organize, plan or implement criminalbehavior in the unit, they should be combined punishment for several crimes ofinsurance fraud and means behavior.