A Probe Into Some Issuse Of The Crime Of Insurance Fraud

With the continuous development of China's insurance market, insurance fraud crime also arises at the historic moment. Actor desperate criminal, malicious insured by concealing insurance risk; the implementation of fake insurance certificate materials, forge the insurance contract by using position convenience,all purpose are to extract high social insurance and commercial insurance or insurance expenses. Insurance relations involved party, policy-holder, beneficiary, insurance broker, insurance agent, insurance underwriter(insurance company) is likely to be and has the opportunity to implement the crime, and even social insurance services like hospital, medicine business operation entities are involved,jointly or separately commit insurance fraud crime.Insurance fraud not only a serious violation of insurance company property rights, but also cause more great harm to the development of the insurance industry in China. The article 198 of the 1997 criminal law in China set up insurance fraud alone, and made specific provision to the crime subject, the specific charges and the legal punishment, the clause has provided a legal basis to crack down on the crime of insurance fraud.However, the author found that in the long-term legal work, due to the criminal law for the regulation of insurance fraud has some problems and defects, insufficient theory and research on these problems and even void, so the new insurance fraud crime convicted and punished are in dispute. This article based on the author's own work experience, combined with the methods of literature analysis and comparison research, discuss on the problems existing in insurance fraud,in order to further standardize the application of the insurance fraud on the legislative or judicial, to provide some inspiration or thinking.Text has six parts: the first part is the domain of inside and outside for insurance fraud legislation comparison, through the comparative analysis of domestic and foreign criminal law for the subject of insurance fraud crime, crimes, legal punishment, etc., in the affirmation for insurance fraud in our country at the same time, points out some problems such as the prescribed in article 198 of the criminal subject scope is too narrow, the indictment stating the problems are not enough. These problems should use the experience of extraterritorial legislation, crime of insurance fraud subject complement, charges, etc..The second part discuss some problems of insurance fraud in China. The article 198 of Criminal Law limit the applicant, the insurance company, the beneficiary as insurance fraud crime subject, the scope is too narrow. The insurance contract relationship may not involve into consideration, the parties will not benefit for all sorts of insurance fraud behavior person convicted and punished, and will also more difficult for people of different identities collusion between common commit insurance fraud crime punishment.The third part discuss the problem of insurance fraud charges. The article 198 of Criminal Law adopted the way of clear explanation of indictment according to describe crime of insurance fraud, only five counts of description is not enough to cover all insurance fraud in the reality, no prospective specification effect,and leading to the situation for the judicial organs for new insurance fraud crime punishment to be in accordance with no law. This paper argues that it should be add a generality and reveals all the details clause in order to solve the problem in article 198.The fourth part talks about our country insurance fraud crime object is too narrow.This paper holds the opinion that the criminal object of article 198 of criminal law is limited to security shortcomings.Because the judicial practice, object of crime of insurance fraud often is not limited to insurance, and insurance fee, etc., in order to to crack down on the crime of insurance fraud more effective, so it is necessary to make insurance law as insurance fraud crime object.The fifth part explores the multiple identities personnel implementation of insurance fraud broken problem.For both the applicant or the insured company and the beneficiary, and staff of an insurance company or insurance broker, insurance agent, the person with double or multiple identities to penalties if the implementation of the insurance fraud problems. This paper argues that whether an actor should take the offender commits a crime using position for the crime and he/she divided into sin, that is the standard of insurance fraud and other charges. If the offender takes advantage of the position of insurance fraud, should be considered as job occupation crime and corruption; If the person did not use his convenience and commit insurance fraud behavior, should be considered as insurance fraud conviction and criminal punishment.The sixth part is the insurance problem by the standard of accomplishment offense and the attempted crime of fraud. This article believed that the insurance fraud is a kind of results rather than the behavioral offense, the attempted behavior exist, so it should be have a combination of behavior and the amount as the two core elements of the division to the accomplished offense and the attempted standard. Actor began to apply to insurance companies or social insurance center for payment of the insurance benefits, due to failing to succeed out of the factor of independent will, and the intent to fraud the insurance amount can not reached the legal amount can be considered as the form of insurance fraud attempt.