Research On Difficult Issues In Judicial Determination Of Insurance Fraud Crime

At the present stage,the main actors of insurance fraud activities are becoming more and more complex and diversified,and the means of conduct are becoming more and more cross-cutting and diversified.In the face of the new situation of insurance fraud crime with the development of the insurance industry,China’s Criminal Law does not accommodate all of them and make clear provisions,and it is difficult to form a unified opinion on the views and interpretation of the legal provisions in the theoretical field,resulting in different judicial decisions on the crime of insurance fraud and inconsistent conviction standards in practice,and even the phenomenon of different sentences in the same case.The main purpose of this article is to study the judicial application of the crime of insurance fraud by reviewing cases on the website of the Chinese Judicial Documents,to summarize the controversial issues in the judicial determination of this crime,and then to start from these difficult judicial determination issues,to refine the existing theoretical views of the academia,to analyze the existing cases in reality,and to give ideas to solve these controversial determinations,in the hope of providing some reference for the judiciary to convict according to the law.This article is divided into five parts.The first part is the presentation of the problem,listing the dilemma of judicial application of the crime of insurance fraud.Firstly,the first focus of controversy is introduced through Case 1:whether the subject of insurance fraud is limited to special subjects,i.e.whether the general subject committing insurance fraud can negate the crime of insurance fraud,and the general provisions of China’s Criminal Law on the subject of insurance fraud and the dilemma of the application of the provisions in practice.Secondly,the second controversial point is introduced through Case 2:when the insured party and the insurance company staff collude with each other to obtain insurance money,the issue of whether each subject is convicted of insurance fraud or misappropriation of office,and the legal documents from 2015 to the present(March 2022)are analysed to summarise the judicial authorities’ views on the "internal and external collusion" type of insurance fraud.The case also analyses the legal instruments from 2015 to the present(March 2022)and summarises the different views of the judicial authorities on the criminalisation of "internal and external collusion".Finally,Case 3 leads to the third controversial issue:the criminality and decriminality of insurance fraud under the crossover of criminal and civil law,i.e.the distinction between insurance fraud in general and insurance fraud and the determination of cases involving the indefensible provisions of the Insurance Law.The second part addresses the problem of defining the scope of the subject matter of insurance fraud.Firstly,the "general subject theory" and the "special subject theory"of the subject of the crime are reviewed.Secondly,the reasons for the inconsistency in the scope of the subject matter are analysed through case law.Finally,it is clarified that the crime of insurance fraud is a genuine status offence and the controversial cases in practice should be resolved in accordance with the "special subject theory".The third part addresses the issue of determining the guilt of the various perpetrators in the "internal and external collusion" type of insurance fraud joint crime.Firstly,it is pointed out that the multi-faceted nature of the constituent features of the offence is the root cause of the inconsistency in the standard of conviction,and that the mechanical application of judicial interpretations by the judiciary is the direct cause of this.Secondly,the theoretical views of "unified conviction","separate conviction" and"compromise conviction" are analysed.Finally,it is clarified that the"core role theory"meets the practical needs,but in applying this view,the subjective intent of the perpetrator and the degree of use of the insurance company staffs job convenience should be fully considered to determine the core role in the joint crime,and when applying this doctrine,it can be combined with the theory of imaginary competition to convict the perpetrator.The fourth part is a solution to the issue of guilt or innocence of insurance fraud under the cross-vision of criminal and civil law.Firstly,the distinction between fraud in general and insurance fraud should be made by taking into account whether the perpetrator has the subjective purpose of illegally appropriating the insurance money and whether the objective amount of the crime reaches the standard of a large amount.Secondly,the mainstream view on cases involving the indefensible clause of the Insurance Law should be reflected upon,and it should be clear that the judicial determination of such cases should be changed.The fifth part is the concluding remarks,which summarizes the solution to the difficult problems of judicial determination of insurance fraud discussed in this paper,and gives the ideas for the determination of the three controversial cases in the first chapter based on the findings of this paper.