Concept and standard adoption -- count building in insurance fraud crime in our criminal law article 198th as an example

Release date: 2011-07-29 Source: Internet

[keyword] crime concept of construction standards of crime of insurance fraud

Elements of our article 198th of the criminal law on the crime of insurance fraud by strict listing prove guilt way of expression, the objective behavior of crime of insurance fraud is defined in five cases: one is the insurant deliberately fictional insurance object, insurance claim; two is the policy holder, the insured or the beneficiary fabricates false or exaggerated loss on the occurrence of an insured accident degree, defrauds insurance money; the three is the insurant, the insured or the beneficiary fabricate non insurance accident, defrauds insurance money; four is the policy holder, the insured intentionally causing the loss of property insurance accident, defrauds insurance money; five is the insured, the beneficiary intentionally causes the death of the insured, disability or illness, defrauds insurance money. It should be said, article 198th of the criminal law of the strict listing prove guilt way of expression is consistent with the specific requirements, however, article 198th of the criminal law in the judicial practice is facing many difficulties, I believe that this is caused by the construction of crime of insurance fraud in China is not scientific. This article in view of this, as a systematic discussion of the concept of crime of position construction and specific standards.

Concept, construction of a crime

(a) the concept and nature of crime construction
Guilt is one of the core content of the penal code, in accordance with the former Soviet Union famous criminologist Telayining view, counts "can be said that every crime 'residence': here (in counts) planted to form all the factors of specific criminal acts." ⑴ what counts, the scholars have different definitions, the author thinks, the guilt is representation of elements of the criminal law provision relating to specific provisions of the crime. Crime construction, refers to the legislation in the criminal law of the provision of specific crime process type description. As a specific crime in the specific provisions of criminal law of vector elements, crime connotation of two parts of criminal law hypothesis and the behavior, not only play the rule of law, education, guide sign, prediction, evaluation and enforcement functions, but also play bearing the general provisions of criminal law provisions of general principles of role. In the study of crime, the most valuable is the reasonable construction of promoting counts, this is because the crime is the direct basis for conviction crime construction, scientific or not, not only directly related to the accuracy of conviction, but also related to the rationality of sentencing.
Counts -- specific crime "home" -- is an important part of the provisions of the criminal law, is also one of the core contents of the criminal code. Process counts construction, is a crime as the center, and then choose to describe the constitutive elements of the crime object, object of crime, subject of crime, subjective aspect, the circumstances of the crime, harm result, time of crime, crime and crime location, this process is not only a technical issue, but lawmakers exercise criminal legislation right, is the process of criminal legislation. In a sense, the provisions of general principles of criminal law is mainly the general principle of configuration about the construct crime and the legal punishment, criminal law is a detailed description of a specific configuration of the crime and the legal punishment. Crime and legal punishment is the content of the two part is the core of criminal law, is the direct basis for the conviction and sentencing of the crime and the legal punishment, constructing scientific or not, directly affects the accuracy of the conviction and sentencing. In the relationship between the indictment and the legal punishment, crime is a body set legal punishment, directly determines the level and range of statutory penalty, crime construction is the core of criminal legislation.
(two) values to count building
Count Building -- lawmakers to process type representation of the process -- lawmakers exercise criminal legislation to the crime in the criminal law of the type in the articles of. As a legislative process, legislative principles need to count building as the important criterion and its intrinsic quality, as a criminal activity legislation process, but also to the basic concept of crime construction of basic principle of criminal law and criminal law as the value guidance of contemporary crime construction and unique properties.
1 follow the legislative principle in China
Legislation needs to follow certain principles, because it "helps lawmakers to take effective way to put some will rise to the will of the state regime, lawmakers in certain ideological and theoretical level to understand and grasp the legislation, the legislation in the selected theory refers to the guide, along the development is conducive to the ruling party or the legislature direction; help lawmakers from the overall grasp of legislation, concentrated, prominent, stressed that reflect some will legislators; relationships help lawmakers coordinated legislative activities, the purpose and spirit of the legislation, legislative activities and legislation with its adjustment the object, there is a One principle runs through it all. spiritual character in the play". The counts of construction as a legislative process, natural to cling to the legislative principle in our country as the idea of value. According to the academic research, the current legislative activity of our country, to keep the four principles, namely the principle of rule of law, constitutional principle, democratic principle and scientific principle. The constitution principle of crime construction of the legislative exercise process for the review of constitutionality. The rule of law built up with the requirements of crime law. The principle of democracy requires not only the legislative purpose of democracy, legislation democracy and legislation procedure democracy. The principle of democracy in counts of the construction, the purpose of legislation democracy as the basis, as the core content of legislation for the protection of democracy, legislation democracy. The scientific principle, requires the construction of crime, in the scientific philosophy in addition, crime construction also need a series of scientific system and procedure as guarantee.
2 basic principles to criminal law
China's criminal law in 1997 established the three basic principles of criminal law, namely the principle of legality, criminal law the principle of equality, the principle of suiting punishment to crime. The basic principle of criminal law is to run through the whole criminal law norms, standards of criminal law spirit has the guidance and control of criminal legislation and criminal justice. The construction of criminal legislation of crime, which belongs to the dimension of the problem, should be the basic principle of criminal law as a spiritual principle. The principle of legality construction to meet the specific requirements of crime, in particular, the request shall be prescribed crime should be clearly defined in the indictment, has already been prescribed crime with clear, unambiguous requirements, in a specific crime constitution evaluation requirements, must be appropriate, accurate, which can be operated sex, prevent crime and fuzzy situation. In charge mode, the legal principle of crime and punishment requirements as far as possible to take the prescribed model prove guilt, and as far as possible to take the elements of narrative. The principle of suiting punishment to crime concept, requires unity of quality and responsibility in the crime construction, take a penalty crime, a crime a legislative mode, legislative mode to abandon much crime punishment, to avoid the different nature, the social harmfulness of different crimes in an article. The principle of equal application of criminal law requires equal protection of law, equality, equal to the crime punishment and criminal punishment, specific to the crime construction, requirements: first, the equal protection of the law, not only to protect the legal interest of the main part, the same method Yiyin man-made subject to different protection; second, to be objective and accurate definition of the subject of the crime, can not be artificially caused by different identity "counterparts (the same behavior) of different punishment (the same penalty)".
The 3 embodiment of the basic concept of contemporary criminal law
"The idea of criminal law in the deep or latent status in the criminal law culture structure, it is not necessarily related to the criminal legislation and the criminal judicature consistent, but the control and influence in the state and the effect rules of criminal law and criminal law operating system layer". The idea of criminal law is global and value guidance of the criminal legislation, criminal justice. The idea of criminal law science can specification to the criminal law and the implementation of scientific prediction and guidance. The criminal law from the social economic life and with its development and perfection of criminal law, only to rely on the concept of criminal law to the current or potential prediction, cognition and grasp of the criminal law, in order to adapt to social reality for proper assessment, to make the vertical and economy, decision-making, so as to make the criminal law norms are development and improvement. It counts as one of the core contents of the penal code, the criminal law basic principle should stick to the basis of the construction of a specific concept, according to construction of the corresponding counts.
With the internationalization of criminal law in our country by the international system level path of criminal law is increasingly to the spiritual concept of international criminal law emphasizes and conversion, and "in the development of human society, with a dual social structure change to the political state and civil society division of two yuan of social structure, the nature of the criminal law transformation from political criminal law the civil criminal law, awareness of the nature of criminal law by the political criminal law to civil law, criminal law concept" the concept is also quietly changing. The idea of criminal law reform, the protection of human rights, the modesty of the criminal law and form rationality first the concept of criminal law are being emphasized and highlighted, become the basic idea of criminal law criminal law of development direction of china. The protection of human rights in criminal law enginery from punishing crimes, protection of traditional society to the guarantee of human rights, taking into account the priority transition of social security. The restraining criminal law is the criminal from criminal and criminal penalty abuse to pursue the generalization, effective and non imprisonment penalty, penalty light punishment new understanding. Form rationality first is the criminal law rationality by paying attention to the substantive rationality, emphasizing the case of justice to the value goals emphasize stability prediction, the system of justice and criminal law's rationality conversion. Change the idea of criminal law is the market economy and the modernization of criminal law requirements, but also face a baptism in the spirit of the criminal law criminal law culture layer, is the transformation of a criminal law values and philosophy of criminal law, will produce profound influence and global to the criminal legislation, criminal justice, criminal construction should fully embody the new concept of contemporary criminal law.

Specific standards, construction of two counts

In order to ensure the scientific nature of criminal legislation, criminal construction needs not only at the macro level to the legislative principle of our country, the basic principle of criminal law, the basic principle of criminal law as the value guidance, to maintain the basic direction of crime construction in line with the status quo of China's social and economic development and the rule of law, but also in the micro level, in the strict implementation of the standard conditions of crime construction, ensure the construction is reasonable, clear out of the crime and the basic requirements of. The rationality of crime constitution, specifically on the specific provisions of criminal elements need to be provided, the specific crime of no provisions of the elements is not specified. Clear "said such a basic requirements: the provisions of criminal law must be clear and accurate, make the person can know exactly what illegal content, and accurately determine the scope of criminal and non criminal acts, to protect the specification does not expressly conduct will not become the object of the norms applicable". In short, the specific crime specific requirements have been specified elements should be specific, definite. Operational requirements constructed counts meet at the present stage of China's economic and social development needs, in line with the status quo of the criminal law in our country, to in practice to implement, and not from the social reality. Counts of rationality, clear and maneuverability of the basic requirements, need in determining the specific crime, the crime type and standard clauses three links strict standards.
(a) to determine accurately the specific crime
This is the premise of the standard construction of a crime, constitute the basis of the correct understanding of factors determine the establishment in the legal interests of the crime on the function of the. Concerning the object of the crime, there are many theories, I agree with the law benefits. Law has its special function, "criminal law is not only the essential standard of criminal legislation, but also has effect on the assessment of legality of criminal legislation, criminal legislation to make up the complement, the final standard correctly understand the legislative spirit, accurate interpretation and application of the law in criminal law and judicial practice". The Marx also once said: "the interest only when it is the interests of the law in order to speak." Criminal law is the criminal legislation on the guiding image, thus to criminal legislation plays a leading role, this role is reflected in the whole process of criminal legislation, the criminal legislation is all about how to protect the legal interest and criminal law, is of various objective interests have the purpose of regulation, the direction of the. It is precisely because of the protection needs a legal interest, lawmakers to consider creating a new accusation, and according to the possible violations of the law behavior behavior, behavior subject, subjective state of mind and the specific needs of the selected specific time, place, the identity elements by the subject of crime, subjective aspect and objective hand. Therefore, interest is in the core position in criminal theory, determines the elements of the characteristics of the concrete crime. Counts of construction as a criminal legislation process should first of all be protected by criminal law the law clearly defined.
To accurately understand the specific constitution of crime but also on the specific crime rational screening. Guilt is the carrier elements specific crime, crime construction is the specific crime "built dwellings", therefore, the construction should be tailored according to the nature of crime, crime, the specific characteristics of social harmfulness, considering the specific crime, combined with the needs of China's traditional legal culture and the development of social economy, the specific constitution of crime elements of screening. Constitutive elements of crime includes the crime, the object of crime, object of crime, subject of crime, subjective aspect, the circumstances of the crime, harm result, time of crime, crime location and other factors. In many elements in the criminal law, criminal behavior is adjusting the social relationship of the media, but also the most powerful criminal norm space play a role, which is the core of the construction of crime. The object of crime, the subjective aspect, crime subject, crime, crime, the crime plot the time, venue is selective elements. Therefore, the construction is actually counts on criminal activity as the core, and then selectively elements of crime subject, subjective aspect of the crime, the object of crime, object of crime, crime, crime, crime means time place selective process described. This is in fact the process to determine the specific conditions of crime establishment, is also the process to determine the specific scope of crime, has the important significance in the construction of crime.
(two) specific crime types and reasonable
After the elements determine the specific crime, also need the specific content of the concrete crime selected are reasonable classification, which is a type of process elements of the specific crime, plays an important role in this process. First of all, the specific crime reasonable type is to realize the balance between crime and punishment requirements. After clearly defined in the scope of the crime, the crime in society is not immutable and frozen, but differ in thousands of ways, complex, showing their respective features, as the case may be in the crime subjective aspect of the crime or intent, or out of negligence, the behavior of elements, different means in different degree, cruel, on the subject of crime, and because the age range, the intelligence degree are different, and there is no capacity or a person with limited capacity of. The specific circumstances of crime, social harm will have different. The principle of suiting punishment to crime concept, requires unity of quality and responsibility in the crime construction, elements of specific crimes classified quality directly influences the nature of crime and crime can truly unified. Secondly, the reasonable elements of the specific type of crime is the need of the legal. As the definite principle important content of the principle of legality, specific to the crime construction, requires that the construction be clear, specific crime. Counts in the course of the construction of specific crime content on the reasonable classification, form numerous will belong to the same charge to sort out, classify complex, the uniform crime, is to further clarify and refine, is the proper meaning clear principle.
The type of reasonable requirements include two meanings. One is the type of the standard for the reasonable. The criminal law of the social relations adjusted by characteristics differ in thousands of ways, complicated, types of standard is not reasonable, will find it difficult to count accurately classified, put all the crime took place in the social life are collected. Two is the unity of type based on the standard. If the crime constitution types should adhere to a reasonable standard is to construct the tight net of justice, the law be loose but never miss, then in the crime construction emphasis on crime types follow the unified standard, is the requirement to establish stringent law makes the crime can be punished, so that the criminal law in the face of social harm behavior can the full response at the same time, within a specific offence, accurately determine the nature of behavior type, and the social harmfulness of different types of concrete act of a crime in a proper evaluation, provide the basis for sentencing separate grade.
(three) the specific crime explicitly stated
After determine the elements of the crime and the reasonable classification, the cultural elements of the crime described count building at the end of a ring, a ring is also often overlooked. Clarity is an important content of the principle of legality, the basic requirements for construction and crime, crime construction clear of the most intuitive, the most important requirement is that the description is clear, unambiguous. To achieve this requirement, mainly by way of legislation of crime in Syria name count building, with simple counts, citation counts and blank counts as a supplement; dominated by narrative elements in the description of the specific crime elements, with the normative constitution element to supplement; use of legal language specification in the indictment statement.
First of all, should be adopted in order to prove guilt, simple counts, citation counts and blank counts as a necessary complement to the legislative mode. According to the description of different forms, counts can be divided into simple counts, recounted counts, citation counts and blank crime. Simple crime refers to the criminal law, the provision, only for the specific crime are simple, concise description of the crime. The detailed description of the simple counts no specific elements of crime. Prove guilt, which describe the facts about the crime in the criminal law crime of specific provisions. Citation counts, refers to the elements of the crime to illustrate through other terms refer to the provision of criminal law and to determine the specific crime. Blank description of crime, is refers by reference to the provisions of other laws and regulations, elements of the crime to illustrate and determine the specific crime. Undoubtedly, the above four types of crime, state crime stated maximum, the specific crime provisions detailed, specific, most can meet the specific requirements of the principle of legality. Simple counts, citation counts and blank counts as the basic types of crime also has its rationality of existence, does not violate the requirements of the principle of legality. However, simple counts, citation counts and blank crime does not prove guilt that elements have specific, clear rules for specific crime, but need to refer to other criminal punishment terms, according to other regulations, even is the means of legal interpretation, to elements of a specific crime. Starting from the specific angle, prove guilt is undoubtedly the most clear requirements in line with the principle of legality, is one of the most common crime in criminal law provision, should be a crime types of first consideration is the construction of crime.
Secondly, we should set to descriptive elements, elements with the normative elements as a necessary complement to the crime. Descriptive elements and normative elements is a relative concept. Elements of nature, is a kind of only the specific crime do pure narrative description, without any value judgments and subjective of crime way. Elements of normative, refers to the specific crime subjective and value judgment in terms of crime constitute expression. The crime punishment legal principle advocated at the beginning, code supremacy is respected, judicial discretion is restricted, the judge had to comply with the law, have the subjective judgment is not allowed, this time clearly by special emphasis on crime, constitute the basic outline of the crime type description, is regarded as a kind of pure narrative, not allowed to subjective and value judgment. With the in-depth theoretical research, law supremacy myth is broken, the value judgment of judges is considered necessary to supply the code, allowed in a certain range, the connotation of clarity are constantly changing, clear requirements gradually to the principle of evolution, and by a legislative requirements evolution as a the principles of criminal law, legislative and judicial activities at the same time adjustment. Clearly the principle of legislators in the legislation as long as law enforcement officers and ordinary people to provide enough clear criteria can be, and this "clear enough criterion" is allowed by law interpretation at. From the clear requirements to the evolution of the principle is clear, the normative elements gradually face the process. Today, elements of normative constitutes the basic types elements corresponding to a narrative, and to be sure, but from a specific point of view, narrative elements is the first consideration should count in the construction.
Thirdly, law should regulate. Legal language is explicitly clear in the meaning of the title, clear requirements to achieve, "from the criminal legislation, criminal law should be used to avoid common people can understand, ambiguous text sentence, so that people can accurately predict the consequences of their own behavior and the judicial personnel, become effective and reliable behavior the pointer, to prevent the abuse of discretion of judicial organs". ⑻ Montesquieu also said: "the law terms, for each individual to be able to arouse the same concept." To make clear legal language structure characteristics of expression should be accurate, science of crime. Lawmakers must be for people to understand and follow the language, therefore accurate expression of the will of the legislators, the legislator should as far as possible, "the exact words to use to find, and to give these words to their original and usually meaning". I have of course, can not be absolutely clear legal terms, legislative technology using fuzzy legal language is indispensable. In legislation, the relationship between the flexible and rigid should use appropriate legal language processing good law. In the implementation of the principle of legality, pursuing criminal rule of law, legislators should avoid ambiguity, strong elasticity or lack of the specific content of the language in the legal text. The criminal law punishment terms in China, similar to the "serious", "if the circumstances are especially serious" legal term is more common, the lack of a clear, specific connotation, to a certain extent, contrary to the clear legal language requirements.

Reflection and reconstruction of the three, China's Insurance Fraud Crime

(a) the reflection of China's Insurance Fraud Crime
The article 198th of the criminal law is the specific provisions for the crime of insurance fraud, on the ideas of localization to the counts of construction and the specific standards, there are many unreasonable places in China's insurance fraud crime, has seriously affected the scientific legislation. "A difference in legislation, justice is a", the crime of insurance fraud flawed legislation directly leads to the crime of insurance fraud is not only in the judicial practice faces many difficulties, and in theory also debated. The author thinks, many problems of China's insurance fraud in understanding, and the crime of insurance fraud crime construction unreasonable.
1 of the insurance fraud crime is not accurately determined
The object of the crime of insurance fraud, from a realistic point of view, the author thinks that the object of the crime of insurance fraud is the insurance gold. The reason is: lists the five kinds of behavior of our article 198th of the criminal law on the crime of insurance fraud in the ", contains the defrauds insurance money" this element, obviously, China's insurance fraud is taken by the criminal legislation mode, is different from the crime of insurance fraud behavior patterns of criminal legislation. In this legislation mode, the crime of insurance fraud is to "cheat insurance gold" as the standard of accomplishment, not get insurance gold case, even cause enormous damage to the order of the insurance transaction, also does not constitute a crime.
Beyond the law level, considering from the reality point of view, the author thinks that the object of the crime of insurance fraud is a complex object, its main object is the order of the insurance business, the secondary object is the insurance and insurance, the reason lies in the following three points. First, the crime of insurance fraud is a special form of fraud, will infringe the ownership of public or private property, it should be no objection. While the ownership of public or private property is a more abstract concept, the crime of insurance fraud occurred domain specific relations in the insurance business, the violation of private property ownership should be specified as insurance and insurance. As already mentioned, the object of insurance in China as the crime of insurance fraud, is obviously reflected in legislation. The problem is, insurance fraud in our country neglects the protection of insurant insurance premium. The crime of insurance fraud is the insurance transaction, to defraud insurance contract interest for the purpose of the crime. Insurance fraud is not only the customer fraud insurance company, also may be the insurance agencies, insurance agent, insurance broker fraud customer insurance, two party has no essential difference. The crime of insurance fraud is not customer insurance into the scope of protection, not only leads to the legislation on the crime of insurance fraud crime object definition is not clear, but also resulted in the imbalance of the criminal law, against the principle of equality. Second, the crime of insurance fraud is a typical financial crime, in the financial crime, according to the violations of the law can be divided into different and the destruction of financial management order crime and the crime of financial fraud. The violations of the law is the state of the financial management order, relates to the relation of management between the state and the individual subject, which belongs to the national law benefit category; the latter is a violation of the financial transaction order, mainly related to the transactions between the individual and the individual relations, which belongs to the category of social benefits. The crime of insurance fraud is clearly a violation of the transactions between the individual and the individual order. Therefore, one of the objects of insurance transaction order is violated by the crime of insurance fraud. Third, insurance fraud as an objective to defraud insurance or insurance premiums, but this process for the order of insurance trading violations is enormous, and in front of the entire insurance industry trade order, the ownership of public or private property is in the secondary position. Therefore, the main object of crime of insurance fraud is the order of the insurance business, the secondary object is the ownership of public or private property.
On the objective aspect of the crime of insurance fraud, from a realistic point of view, constitute elements of our article 198th of the criminal law on the crime of insurance fraud by strict listing prove guilt way of expression, the objective behavior of crime of insurance fraud is defined in five cases. According to the principle of legality, in practice only belong to five kinds of situations of article 198th of the criminal law constitute the crime of insurance fraud, in addition, whether in the criminal object, the subjective aspect of crime and subject of crime and social harmfulness and five kinds of legal case how consistent in essence, does not constitute the crime of insurance fraud.
From the view of necessity, legislative mode strictly enumerative prove guilt is the principle of legality specific content requirements, but the crime of insurance fraud means diversity, far from the list of legislative model can cover. In practice, there are also other insurance fraud to the behavior way: (1) driving without a license and insurance exclusions from insurance fraud, not by five kinds of behavior criminal law the crime of insurance fraud is contained; (2) the "first after the accident insurance", "double insurance" and other common insurance fraud. Though a few scholars think, can be "deliberately fictional insurance object" contained, but many of the scholars in their exclusion from the "deliberately fictional insurance object". We therefore, our article 198th of the criminal law should add "reveal all the details in terms of fraud" in other ways in the list of the behavior mode.
On the subject of insurance fraud in China, from a realistic point of view, China's current Criminal Law Article 198 take on the crime of insurance fraud is a special subject of the legislative model, subject to the crime of insurance fraud is limited to the insurant, the insured or the beneficiary. This legislation mode in practice exposed many shortcomings. First, not to the insured, the insured and beneficiary of non insurance legal relationship, and the insurer, insurance agent, agent into the subject of crime of insurance fraud, not unified resulted in the application of the law. In judicial practice, there is a general subject of crime of insurance fraud, the insurance contract insurance, such as property insurance, both parties to the transaction after the transfer of the insurance object, not to transfer registration, the new property owner in the property after be or get out of danger, the original contract between the insurance fraud, not in accordance with the insurance settlement of the crime of fraud. In addition, in the judicial practice, because of the crime of insurance fraud is defined as a special subject, the existence of a large number of the same case only because of different actors and different processing conditions. Second, not to the insurer, insurance agent, agent into the scope of regulation of the crime of insurance fraud, imbalance caused by the legal protection. In judicial practice, there have been a lot by the insurer to take various deception insured, the insured or the beneficiary of the insurance money case, even the criminals fake insurance company and its staff by deception, insurance, serious impact on the insurance transaction order. And
In view of this, some scholars from the right angle, proposed our country insurance fraud crime legislation pattern advocate general subject, the reasons are as follows. First, in the judicial practice, many of the insured is beyond insurance and non insurance beneficiary person insurance fraud, and the insurer, insurance agent, insurance broker fraud behavior is difficult to qualitative, finally is often characterized as fraud, and such qualitative lack of rationality. Second, the possibility of the identity of the function that reflects the behavior infringe the subject specific object, from the identity of the function of view, should not be subject to the provisions of the crime of insurance fraud is a special subject. Third, the object of crime has a decisive significance to the subject of crime, the legislative mode of special subject of crime of insurance fraud, violations of law in the same but different processing results, contrary to the logic relationship between criminal object and subject of crime. Fourth, will be the subject of crime of insurance fraud is defined as the applicant, the insured or the beneficiary of the practice, not equal provision of criminal law protection as the main body of insurance transaction, violated the principle of equality before the criminal law. Fifth, from the current insurance law and accessory criminal legal norms, all kinds of insurance industry regulation and other financial crime subject. Sixth, the provisions of the subject of crime of insurance fraud is a general subject, but also abroad practice. ⒀
2 of the Insurance Crime of fraud of the type of unreasonable
Five kinds of behavior in the criminal law 198th stipulation of crime of insurance fraud, is not the first, four or five kinds of behavior of a kind of complete insurance fraud, because only deliberately fictional insurance object behavior or intentionally causing the loss of property insurance accident or intentionally caused by the insured of death, disability or illness, can not realize the purpose of insurance fraud. For example, conduct in the insured intentionally fictional insurance object, in the performance of the contract, also must implement fabricating false or fabricated reasons have not occurred insurance accident, to complete the process manufacturing fraud reasons, so the fictional insurance object behavior also must be combined with second or third kinds of behavior, in order to achieve the implementation of insurance fraud crime, the required degree of. Thus it can be seen, the relationship between first, four or five kinds of behavior and second, three two kinds of behavior, is actually a relationship between actions and behavior, the first, four, five three kinds of behavior is actually act of second, three two kinds of behavior, and the second, three two kinds of behavior is actually the behavior after the first, four five three kinds of behavior, behavior, the rule is this: a fictional insurance object / creating insurance accident, reason, put forward about fraud insurance to get insurance gold. At this time the chain, can only choose one identified as the crime of insurance fraud crime standard. But our current legislation is the fictional insurance object / creating insurance accident and fabricated fraud reasons as the crime of insurance fraud behavior, which means that the two links in the chain of the time as the crime of insurance fraud to point in time, so will have two consequences: one is in the deliberately fictional insurance object to implement the behavior, improper post of the crime to practice time, this post will result in the judicial practice in order to protect the insurance transaction adverse; two is also two time points in the crime, directly led to the theory of the crime of insurance fraud standard of starting to debate and have this crime in practice to recognized standards are not unified.
In the choice of the fictional insurance object / creating insurance accident, or make fraudulent claims for insurance fraud legislation as to time point, in view of the crime of insurance fraud crime object is a complex object, and the insurance transaction order is the main object, the author thinks that our country insurance fraud should be recognized standards will be a fictional insurance object / creating insurance accident as the crime of insurance fraud to, for the following reasons. First, the main object of crime of insurance fraud is the order of the insurance transaction, should focus on the order of the insurance business, and in social life, the order of insurance transaction as a society of law, in fact, as long as to deceive insurance or insurance premiums for the purpose, and the implementation of the act of insurance fraud, it will cause an abstract harm the insurance transaction order. Study on the insurance fraud in China, was not aware of this point, a long time will "defrauds insurance money" as the standard of accomplishment of crime of insurance fraud, will focus on the criminal law regulation of insurance fraud in the insurance, which is obviously due to the object of the crime of insurance fraud awareness caused by unclear. Second, from the perspective of comparative law, the crime of insurance fraud crime legislation pattern is more common foreign practices.
The specific crime 3 constituent elements of the representation is not science
China's criminal law 198th expression is not science is mainly manifested in the following three aspects. First, the second paragraph of article 198th of the criminal law first expression is: "to the occurrence of an insured accident fabricates false reasons......" Accident, insurance refers to insurance contract the insured of the scope of the statutory insurer shall in accordance with the claim of accident, accident refers to the unexpected loss and disaster. False cause behavior person makes up the accident, because of the accident does not belong to the provisions specified in the insurance contract and insurance law should claim the insurance accident, and fabricate false reasons, which occurred in the object of insurance accident become insurance accident, request the insurer claims, in order to achieve the purpose of insurance fraud. The legislative provisions for "after insurance accident happens fabricates false reasons", the concept of insurance accident ambiguous expressions, all accident insurance mark are understood as insurance accident, confusing the extension of accident and accident insurance. As provided for in the first paragraph second, first criminal law 198th: "the insurant deliberately fictional insurance object......" Among them, the "fiction" is out of thin air, containing active, conscious fraud means, legislation on "fictitious", make people feel there is negligence of fiction, "intentionally" two words should be removed. English third, article 198th of the criminal law on the crime of insurance fraud listed five kinds of behavior, each with a "back to defraud insurance money" expression, not only difficult to reflect the subjective purpose of the crime of insurance fraud, but also resulted in the language repetition, complex, the author thinks that we should in article 198th of the criminal law in general, directly before the listed insurance fraud behavior, the crime of insurance fraud "to defraud insurance or insurance premiums for the purpose", which can clear the crime of insurance fraud crime objective, but also can realize the legal provisions of the refining.
(two) reconstruction of the crime of insurance fraud crime
The author thinks, China's criminal law on the crime of insurance fraud crime can be reconstructed as follows:
"In the insurance business, to defraud insurance or insurance money for the purpose, the insurance transaction relationship make the following acts, the larger amount, is less than five years imprisonment or criminal detention, a fine of ten thousand yuan one hundred thousand yuan fine; the amount involved is huge or other serious circumstances, five years or ten years in prison, a fine of twenty thousand yuan two hundred thousand yuan fine; if the amount involved is especially huge or other especially serious circumstances, department for more than ten years in prison, a fine of twenty thousand yuan and two hundred thousand yuan fine or confiscation of property:
(a) a fictional insurance object;
(two) intentionally causing damage to the insured property or the death of the insured, disability, disease;
(three) loss deliberately aggravated or exaggerate the insurance accident;
(four) for fraud in other ways.
With the second acts listed in item, also constitutes another crime, shall be punished in accordance with the provisions of graft. Where a unit commits the crime in the first paragraph, it shall be fined, and the persons directly responsible and other responsible persons, more than five years in prison or detention; if the amount is enormous or other circumstances are serious, five to ten years in prison; if the amount involved is especially huge or other especially serious circumstances, at for more than ten years in prison.
Identification of human, the insurance accident that, property assessment deliberately put false documents, and provide conditions for others to commit fraud, shall be punished as an accomplice in the crime of insurance fraud.

Notes and references
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The Su Caixia: "update" in our criminal law theory perspective of international criminal law, "Chinese law" in 2005 second.
I see Ceng Yueying, Wu Hao: "concept and how to express the path of accessory criminal law", "criminal law" Chinese magazine in 2008 fifth.
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[author] the vice president Ceng Yueying Zhou Wendi, Professor of Shenzhen University law school; Shenzhen University Graduate School of law Master of criminal law.
[source] "politics and law" in 2010 fifth.
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