保险诈骗罪疑难问题的司法认定

Judicial Determination of Difficult Problems of Crime of Insurance Fraud

保险诈骗罪的犯罪主体应为一般主体,刑法有必要将保险人在保险业务活动中的诈骗行为归入保险诈骗罪。单位可以成为保险诈骗罪的主体,但不能成为有些如故意杀人等犯罪的主体。保险诈骗罪中的"虚构保险标的"既包括编造完全不存在的标的,也包括编造与实际存在内容不一致的标的。复保险、隐瞒保险危险和事后投保骗取保险金等行为均可能归入保险诈骗罪"故意虚构保险标的"行为范围之中。对冒名骗赔行为应以诈骗罪定性,但需作具体分析。在投保人或受益人不是被保险人的情况下,被保险人用自损方式骗保的行为不能以保险诈骗罪处理。故意扩大保险事故骗取保险金的行为应归入"故意造成财产损失的保险事故"法定行为方式之中。保险诈骗罪中存在着片面共犯情况,对单方面有意帮助他人犯罪者可以成立共犯。

The subject of crime of insurance fraud is general subject. The insurers＇ fraudulent acts committed in their insurance service should be stipulated by the criminal law as crime of insurance fraud. Although a unit cannot be the subject of such crime as intentional murder, it can be the subject of crime of insurance fraud. The crime of insurance fraud is committed by fabricating insurance objects, which include not only fabrication of non-existing objects, but fabrication of existing objects that are not in accordance with their actual situation. Such acts as double insurance, concealment of insurance risks and defrauding insurance proceeds by covering insurance after occurrence of insurance events can possibly be deemed acts of fabricating insurance object in the crime of insurance fraud. The act of defrauding insurance proceeds under an assumed name or identity should be treated as crime of fraud, but this conclusion should be achieved after concrete analysis. The act of defrauding insurance proceeds by self-harming by the insurant can not be regarded as the crime of insurance fraud if the policy holder or the beneficiary is not the insurant. The act of defrauding insurance proceeds through intentional expansion of insurance accidents by the insurant should fall within the jurisdiction of ＂willfully causing insurance accident＂. Unilateral accomplices can exist in crime of insurance fraud; they could be treated as co-offenders if there is evidence to show that they have the intention to help the other offenders.