Study On The Application Of Law To Insurer Fraud Cases

Article 28 of the law of the People’s Republic of China on the protection of consumers’ rights and interests,newly amended in 2013,stipulates the obligations of operators of securities,insurance,banking and other financial services,article 55 stipulated the business operators providing goods or services which commit fraud shall increase compensation for losses incurred in accordance with the request of the consumer,the increased compensation amount shall be three times the amount of the price of the goods purchased by the consumer or the fee of service received by the consumer.Since then,there has been a constant discussion in the theoretical world about whether consumers in the financial fields of securities,insurance,banking can claim punitive damages in the event of fraud in accordance with the provisions of the Consumer Law.In judicial practice,judges are also in a dilemma when facing this problem,and the results of judgments in different courts are completely opposite.Existing academic research has attributed the root of this problem to the lack of the concept of "insurance consumer".Therefore,scholars have proposed many "insurance consumer" concepts starting from the "consumer" concept of the "Law of the People’s Republic of China on the Protection of Rights and Interests of Consumers",and This is the logical starting point,and a series of formal logical reasoning have been carried out in an attempt to find a clear answer to this question within the framework of the existing legal system.From practice,the effect is not obvious.Formal logical reasoning is prone to two insurmountable problems: first,the legal formal language itself is vague and lagging,and the clarification and interpretation from this starting point is uncertain;Different people put forward opposite explanations,and the commentator only extracts the reasons that are beneficial to his own interpretation scheme.This article attempts to demonstrate and explain this issue from a brand-new perspective,based on the legislative purpose of the Consumer Law and the institutional function of punitive compensation.For a long time,the understanding of the "Law of the People’s Republic of China on the Protection of Rights and Interests of Consumers" was confined to "consumers" as vulnerable groups and deserved special protection.However,the purpose of the Law of the People’s Republic of China on the Protection of Rights and Interests of Consumers "" should also be to correct the imbalance between the "consumer" and the "operator".The concept of "consumer" should not be a static inherent concept,and specific judgments need to be made in individual cases.In the future,the concept of "consumer" should be open and changeable.Due to information asymmetry,prominent inducement and other characteristics of insurance consumption,the insurance consumer can easily cause damage to the rights and interests of the operator due to fraud.Punitive compensation is an irreplaceable constraint on the inner constraints of the operator and makes up for the conventional expected loss of the insurance consumer Role.For these reasons,punitive damages should apply to insurer fraud.In the trial practice,the question of how to apply the punitive compensation system specifically,namely,how to determine the insurer’s fraud and how to calculate the punitive compensation? It is directly related to the function and social effects of punitive damages.On the basis of combing the existing legal norms and doctrines,this article believes that the determination of fraud in the "Law of the People’s Republic of China on the Protection of Rights and Interests of Consumers" should start from the obligations of the operator and be specific to the insurer’s fraud.It should adopt fraud behaviors-deliberate judgment standards for fraud.China’s "Law" takes "commodity price" and "service cost" as compensation bases and adopts a fixed multiple calculation method.It is inconsistent with the function of the substantive punitive damages system.Based on the model of punitive damages in the case of necessity,this paper discusses how to reasonably determine the amount of punitive damages in the case of insurer fraud by taking "loss as the compensation base" and combining various factors under the condition of the upper limit.