| The controversy over the characterization of the fraudulent use of medical insurance funds by designated private hospitals has always existed in judicial practice.Although on April 24,2014,the Standing Committee of the National People’s Congress promulgated the legislative amendments to Articles 30 and 266 of the Criminal Law,it failed to stop the controversy over the characterization of the fraudulent use of medical insurance funds by private hospitals.On the contrary,the legislative interpretation of Article 30 and Article 266 of the Criminal Law has exacerbated the controversy over whether the act of fraudulent use of medical insurance funds by designated private hospitals is defined as fraud or contract fraud.In this paper,the case of Tu and others was selected for analysis,and the focus of controversy,in this case,was sorted out.We hope to provide some references for judicial practice.This article is divided into three parts.Part Ⅰ: Introduction to the case and the focus of the controversy.The author firstly makes a brief statement on the basic facts of the case of Tu and other member’s fraud;secondly,the focus of this case is summarised as whether M City Hospital B was established as a unit crime,and whether each participant in M City Hospital B constituted a crime.Part II: Analysis of the case.The author focuses on the two aforementioned controversial points and analyses the facts of this case in the light of the characterization of the criminal act of defrauding the medical insurance fund,the determination of the subject of the offense of the crime of defrauding the medical insurance fund,and the determination of the joint crime in the crime of defrauding the medical insurance fund.In the part of determining the subject of the offense of the crime of fraudulent use of medical insurance funds,we adopt the view of organizational responsibility theory and believe that the criminal process of fraudulent use of medical insurance funds in this case has formed an internal system in Hospital B of City M.At the same time,Hospital B of City M has not formulated an internal supervision and management system,so this case should be considered to constitute a unit crime.In this case,Tumoujiang had the dominant power over the implementation of the fraudulent act of taking medical insurance funds and should be found to be a positive offender,while Tu mouhong and the directors of the departments were accomplices and the rest of the ordinary doctors did not constitute a crime;the facts of this case were subsuming the constitutive elements of fraud and contract fraud respectively,and combined with the results of other courts’ judgments in similar cases,it was concluded that this case should constitute the crime of contract fraud under the current Criminal Law in China.Part III: Suggestions for consideration.Due to the special nature of the act of defrauding the medical insurance fund,the existing criminal law,legislative interpretations,and judicial interpretations do not allow for the identification of the act of defrauding the medical insurance fund in judicial practice,thus leading to confusion in the identification of the act of defrauding the medical insurance fund in judicial practice.It is hoped that in judicial practice,an accurate determination of the fraudulent use of medical insurance funds can be made,so as to avoid the imposition of different penalties in such cases. |
