保险诈骗罪司法认定若干问题探析

Study on Judicial Cognizance of Crime of Insurance Fraud

我国刑法关于保险诈骗罪的规定采用的是结果犯模式,只有行为人实施了法定的保险诈骗行为,并取得或控制了数额较大的保险金,才构成本罪的既遂。鉴定人、证明人、财产评估人的行为为保险诈骗罪的实行犯创造条件的,可构成共犯中的帮助犯。保险公司的工作人员内外勾结骗取保险金的行为,实质上只是各行为人共同利用保险公司工作人员职务上的便利而实施的骗取保险公司财产的职务侵占或者贪污行为,只可能构成贪污或者职务侵占罪。

There exist some problems with the frequently-happened crime of insurance fraud, especially in its judicial practice. As far as the differentiation of its attempt state and accomplished state is concerned, the article argues that the stipulation of the crime of insurance fraud in our criminal law adopts the aftermath module, that is, only when the statutory action of insurance fraud has been carried out, and, thereby, a large amount of risk has been paid by the insurance company, will the action be recognized as an accomplished crime. And the article also claims that the employees in an insurance company who colluded with the suspect should be recognized as committing the crime of graft or usurpation. In the end the modules of the crime and its penalty are discussed. All of these will be of great significance in judicial practice.