형법상 보험사기죄 신설을 위한 제언

Abstract

Recently, the crime of insurance fraud has been increasing day by day, along with prosecutors’ burden of proof. In the consideration of general deterrence of insurance crimes, it is now actively discussed that insurance fraud should be included as separate type of fraud in the criminal law. It is very meaningful in the aspect of criminal justice policy, that we categorize various types of fraud by their nature of crime, and degree of illegality, as we do the same with the crime of murder by applying scientific data and statistics. Since we already criminalized the act of fraud utilizing computers, it is not unjustified if we criminalized the act of insurance fraud as a separate crime. Insurance fraud is greatly different from ordinary fraud in its nature. In most cases it requires other preceding criminal activities; theft, destruction, arson or murder, which the criminal law intends to prevent. Also, there is a significant difference in its protective value. Insurance fraud harms the insurers; however it does not stop there. Insurance fraud also renders the system of insurance dysfunctional, and destroys the social structure. Generally speaking the intervention of criminal law to the private transactions and economy should be considered only as a last resort. However, to protect the society there are exceptional cases that more preemptive intervention could be justified. Therefore it is possible to create a separate statute for insurance fraud in the criminal law in that the statute can help effectively protect the society, and that insurance fraud has a very different nature compared to other types of fraud. Also it is necessary to 1) address various subtypes of insurance fraud, and set carefully articulated punishments for their illegality, 2) distinguish between soft fraud and hard fraud, and 3) address the preparatory criminal activities for insurance fraud.