A Study On Legal Issues Of Fraud In Export Credit Insurance

As a policy instrument for promoting the overseas investment and export adopted by every host countries,export credit insurance(hereinafter “ECI”,also named “export credit guarantee”)is increasingly making its significance felt for the vital role it plays.Meanwhile,the number of fraud cases in ECI grows rapidly.A survey of recent judgements from China's courts indicates that,many juridicial issues related to those cases remain underexplored and a number of relevant questions arises,which includes,among others,(1)How to apply ECI when its contracts conflict with the insurance contract law?;(2)How can we define the fraud in ECI,that is,what is the burden of proof and standard of proof?;(3)What are the legal consequences of the fraud?;(4)How can we design and perfect legislation in order to establish an anti-fraud system?;and(5)How can a financial bank protect its interest in cases of the financing under ECI? This thesis is aimed at exploring the myriad aspects of questions raised above.This thesis is divided into five chapters.Chapter One seeks to establish the requisite of the whole thesis,namely,the application of law or contract provisions.By analyzing the conflicting implications in the rulings of the Supreme People's Court over ECI-related cases and by reviewing the existing global legislation of ECI,this chapter argues that the ECI contract is applicable to the rules and principles of insurance law,and in cases where the ECI contract conflicts with the insurance law,the provisions of contracting parties ought to be applied prior to the insurance law.Chapter Two defines the two major forms of ECI fraud which are misrepresentation and concealment.After exploring the varied situations of misrepresentation and concealment,this chapter clarifies some key issues related to juridicial practices,including the burden of proof,the standard of proof and legal sequences of ECI frauds.Chapter Three focuses on the rationale,form and content of enquiries befor the ECI contract is completed via a close examination of 11 samples of application forms from the ECI agencies around the world.It is discovered that whatever those appllication forms contain,the existence and the financial conditions of the applicants are always included,which offers the insurer strong defense after ECI fraud takes place,especially in the concealing cases.Chapter Four is based on the experiences of the major anti-insurance fraud organization in US,Coalition Against Insurance Fraud(CAIF)and National Association of Insurance Commissioners(NAIC).It argues that the two anti-fraud models provide us a very comprehensive and advanced system of detection,prevention and punishment of insurance fraud,which can be adopted by anti-ECI fraud campaign.This chapter is followed by suggestions for China's anti-ECI fraud campaign in terms of macro systemic design.Chapter Five looks at ECI from the perspective of juridicial practices,analyzing the legal relationships between ECI agencies,applicants and financing banks.By a close reading and interpretation of relevant ECI related cases in practice,it underscores the risk of liabilty on the part of financing banks,insisting that financing banks must sign agreements on transfer of right of claim with the applicants because the risks they confront are much more enormous than ECI agencies do.