Research On Identification Of Fraud Crime In The Field Of Social Basic Medical Insurance

In recent years,fraud crimes have occurred frequently in the field of social basic medical insurance.On April 24,2014,the interpretation of Article 256 of the Criminal Law of the People’s Republic of China was passed by the Standing Committee of the National People’s Congress,which defines social basic medical insurance fraud as the crime of fraud.However,in judicial practice,there are still some disputes in the identification of fraud in the field of social basic medical insurance.In order to maintain the authority of the legislation that “insurance fraud should be punished”,it is necessary to further study the identification problems in judicial practice on the basis of the existing legislative interpretation.Firstly,there are many differences between the crime of fraud in the field of social basic medical insurance and the crime of insurance fraud in the field of commercial medical insurance.Social basic medical insurance is a kind of social welfare policy relationship between the state and the insured groups,while commercial medical insurance refers to the rights and obligations of both parties in an insurance contract,which belong to different fields.Social basic medical insurance involves a wide variety of subjects,including the insured patient,the medical party,the medical insurance party,etc.Summing up the content of the behavior under each subject can lay a research foundation for the identification of the criminal responsibility of the relevant subject in the fraud.Secondly,among the social basic medical insurance frauds that should be punished,the insured patients’ behaviors mainly include four kinds of frauds: fraudulent use of medical insurance card,excessive prescription,forged medical certificate and use of medical insurance fund to pay for non-medical expenses.The nature of fraudulent use of the medical insurance card by the insured party should be judged by combining the administrative illegality and the criminal nature.For the analysis of the fraudulent use of medical insurance fund by the insured party to pay for non-medical expenses,the paper puts forward a new thinking about the limit of criminal law adjustment so as to clarify the criminal legal liability of the insured party in the fraud crime of the basic social medical insurance fund in different behavior contents.Thirdly,there are mainly three kinds of social basic medical insurance frauds on the part of the medical party,i.e.fraud based on fictional facts,fraud based on concealing the truth,and fraud based on excessive medical treatment.In the fraud based on fictional facts of the medical party,the paper analyzes whether one or both parties of the contract have the qualification of administrative subject and whether the content of the contract can reflect the attribute of administrative relationship,and holds that the service agreement of designated medical treatment insurance belongs to administrative contract.In the case of fraud based on concealing the truth of the medical party,the paper introduces the German Implied Deception theory to analyze the identification of the obligation of information description in the crime of fraud by omission.It proposes that the monopoly and privacy of the information collected by social security agencies should be considered comprehensively.In the analysis of the excessive medical treatment of the medical party,the paper advocates that when identifying the crime of excessive medical treatment fraud,the criminalization of administrative illegal acts should be reasonably restricted.Finally,due to the special status of the medical insurance institution,the social basic medical insurance fraud of the medical insurance institution often involves the identification of the identity of accomplice as well as the identification of the crime of malfeasance and fraud.The different nature of joint crime identification can be distinguished according to their use of the ‘special status’.Moreover,the paper puts forward that the judgment standard of ‘property control theory + large amount” should be adopted for a completed crime and discusses the possible crime concurrence relationship within the same behavior.