Study On The Application Of Law In Insurance Fraud Cases

In the insurance contract relationship,according to the provisions of Article 16 of the Insurance Law,the applicant has the obligation to tell the truth in the process of concluding the contract,but in practice,the applicant intentionally violates the obligation of telling the truth and makes false statements to the insurer or conceals the truth,which constitutes insurance fraud.For this fraudulent situation,the Insurance Law stipulates that the insurer enjoys the right to rescind the contract from the perspective of violating the obligation of telling the truth,but it is limited by two years of exclusion period.Compared with the Civil Code,the Insurance Law is a special law,and its application has priority,but it does not exclude the application of the general rules of the Civil Code.Throughout the whole civil legal system,for "fraud",the Civil Code and the original Contract Law stipulate the system of cancellation of defects of intention,and the defrauded party has the right to cancel it.However,the Insurance Law,as a special law of the Civil Code,does not clearly stipulate whether the insurer enjoys the cancellation right in the event of insurance fraud,but only stipulates that the insurer enjoys the cancellation right.Therefore,the understanding of this problem has formed two main views in theory,namely "choice theory" and "exclusion theory",and the judicial practice also has different understandings.Therefore,under the background of insurance fraud,how to deal with and apply the concurrence of the two rights becomes the focus of controversy.In addition,the conjoint issue of rescission right and rescission right discussed in this paper is limited to the insurance fraud situation.For the rescission right arising from other situations,including the insurer’s major misunderstanding,obvious unfair contract and coercion,there will not be conjoint with the rescission right stipulated in Article 16 of the Insurance Law,and its exercise is not controversial,so it is not discussed in this paper.Insurance fraud is not a special legal concept.It generally refers to the fraudulent behavior carried out by the policyholder during insurance,which mostly exists in the field of personal insurance."Insurance Law" does not stipulate the concept of fraud and identification requirements,in theory or in practice,it is determined with reference to the constituent requirements of civil fraud.With regard to insurance fraud,this paper firstly analyzes typical cases in practice through empirical analysis and shows the focus of disputes in the case of insurance fraudulent personal insurance contract,that is,the conjoint applicable rules for the cancellation right and cancellation right of insurance contract and whether the cancellation right can still be applied after two years of exclusion period.The judgment results are basically divided into two viewpoints.First,although Article 16 of the Insurance Law stipulates that the insurance applicant has the right to rescind for violating the obligation of truthful disclosure,it does not specify the right to rescind for excluding the civil fraud system.Fraudulent insurance meets the constituent elements of the right to rescind contract.Compared with the right to rescind insurance,the two have some overlap in the constituent elements of the right,but both have their own unique elements and different legal effects.They should not be mutually exclusive;Another viewpoint of judgment holds that the Insurance Law is a relation between special law and general law compared with the Civil Code.Since the insurance law has special provisions on this issue,it should apply the specific provisions of relevant provisions and exclude the application of the system of revocation right in civil law.Secondly,it combs and develops academic views through literature analysis.At present,there are two main views on this issue,"choice theory" and "exclusion theory",and at present,"exclusion theory" is the mainstream view in judicial practice and academic circles.Finally,on the basis of learning and absorbing relevant theories,domestic legislative practice and foreign legislative experience,the author puts forward the legislative suggestion that only under serious fraud insurance,the insurer can cancel the insurance contract according to the defect system of intention in the Civil Code,and improves the supplementary applicable rules of the cancellation right from the physical and procedural aspects.In order to maintain the principle of maximum integrity of insurance,implement the principle of balance of consideration,balance the legitimate rights and interests of both insured parties,prevent the insured from taking risks in order to defraud insurance money,prevent the insurer from excessive abuse of rights and extensive insurance for the pursuit of performance,encourage them to actively perform the underwriting obligations,timely exercise of rights,and greatly reduce or eliminate such insurance contract disputes.We will promote the healthy operation and development of the insurance industry.