Case playback
The insured changed his mother's household registration age from 77 to 54, and after meeting the insurance conditions, he was insured as the insured. Two years later, after the death of the insured, the insured modified the age-related parts of his mother's personal file and other related documents accordingly, and claimed compensation from the insurance company, and obtained insurance money of 270,000 yuan.
Industry dispute
There is a great controversy in academic and practical circles about whether the insured falsifies the age of the insured to defraud huge amounts of insurance money, and there are two diametrically opposite views.
One view is that the insured's behavior does not constitute insurance fraud. The reasons are as follows: First, the so-called life span refers to a person's "life and death". According to Article 12 of the Insurance Law, the subject matter of life insurance refers to the life span and body of a person, and age does not belong to the subject matter of insurance, so fictional age does not constitute a fictional subject matter of insurance, let alone insurance fraud. Second, Article 54 of the Insurance Law clearly stipulates that the declaration age is not true, and the insurer cannot terminate the contract after more than two years, and the contract is valid. Third, the insurance law should be applied first, not the criminal law. Although this case is suspected of insurance fraud, the relevant provisions of the Insurance Law should be applied first when defining the case.
Another view is that the insured's behavior constitutes the crime of insurance fraud. The reasons are as follows: First, fictional age constitutes fictional insurance subject matter. Although the subject matter insured in the Insurance Law does not specify the age, it is closely related to health and life span. It is a deliberate fiction for the insured to cheat knowing that the insured does not meet the insurance conditions. The insured violates the provisions of Articles 138 and 1 of the Insurance Law and Article 198 and 1 of the Criminal Law, that is, "the insured deliberately fabricates the subject matter of insurance to defraud the insurance money", which constitutes the crime of insurance fraud according to law. Second, the insured's tampering with his age does not fall within the scope of "lying about his age" as stipulated in Article 54 of the Insurance Law. Third, the malicious fraud of the insured in this case has constituted a crime and should be adjusted by the criminal law.
Jurisprudential analysis
The Influence of Insurance Law (Revised Draft) on the Case
On August 29th, 2008, the National People's Congress Standing Committee (NPCSC) published the full text and explanations of the Insurance Law (Revised Draft), and solicited opinions from the public. Paragraph 1 of Article 55 of the draft stipulates: "If the age of the insured declared by the applicant is not true and its true age does not reach the age limit agreed in the contract, the insurer may terminate the contract and refund the insurance premium to the applicant after deducting the handling fee. If more than two years have passed since the date of the establishment of the contract, the insurer shall not terminate the contract, except that the insured deliberately falsely reports the age of the insured, which constitutes insurance fraud. " This provision has certain guiding significance for us to re-examine this case.
Legislative Intention of Article 54 of Insurance Law
Article 54 of the Insurance Law stipulates: "If the age of the insured declared by the applicant is not true, and its true age does not reach the age limit stipulated in the contract, the insurer may terminate the contract and refund the insurance premium to the applicant after deducting the handling fee, except that it has been more than two years since the establishment of the contract. If the age of the insured declared by the applicant is untrue, resulting in the insured paying less than the insurance premium payable, the insurer has the right to correct and require the insured to make up the insurance premium, or pay the insurance premium according to the ratio of the actually paid insurance premium to the insurance premium payable. If the age of the insured declared by the applicant is untrue, resulting in the insured actually paying more insurance premiums than the insurance premiums payable, the insurer shall return the overcharged insurance premiums to the applicant. " This clause is called the force majeure clause in the insurance law, which is about the legal consequences of the applicant failing to truthfully declare the age of the insured.
Some scholars say that Article 54 of the Insurance Law has legislative defects and should be amended. Force majeure clauses are clearly stipulated in the insurance laws of civil law system and common law system.
Article 163 of the German Insurance Contract Law stipulates: "An insurer shall not terminate the contract 10 years after the conclusion of the contract, even if it is found that the applicant has violated his obligation of informing when signing the contract. However, those who want to protect people from malicious infringement are not subject to this restriction. "
Article 104 1 of China's "Macao Commercial Code" stipulates: "(1) The applicant's failure to state or incorrect statement will affect the risk assessment, which will lead to the consequences stipulated in Articles 974 and 975. (2) However, the insurer shall not exercise the rights arising from failure to declare or incorrect declaration only within one year after the conclusion of the contract or within a shorter period stipulated in the short-term contract. (3) The act of the insured is intentional, and the provisions of the preceding paragraph shall not apply. "
In the United States, the incontestable clause is usually stipulated as: "This contract is valid during the life of the insured and will be incontestable after two years, except when the insurance premium is not paid." According to 1950 Model Law on Uniform Personal Accident and Disease Insurance Clauses, the defense limitation clause in health insurance contract means that the insurer shall not raise any objection to the insured's disability or illness or refuse to pay the insurance money after three years of policy issuance, unless the applicant commits fraud or false notification. By comparing the insurance laws of Germany, Macao and the United States, we can draw such a conclusion. If the applicant fails to inform maliciously or intentionally, the legal consequences will exclude the application of the force majeure clause.
As we all know, in the theory and practice of insurance law, intentional accidents or intentional failure to perform legal obligations constitute the insurer's exemption. From this point of view, we think that the legislative intention of Article 54 of the Insurance Law is that if the age of fault declaration is not true and its true age does not reach the age limit agreed in the contract, the insurer may terminate the contract, but it is limited to two years from the date of the establishment of the contract. That is to say, if the age notification is untrue due to negligence, the insurer may not terminate the contract after more than two years from the date of the establishment of the contract, which is the duty of care of the law to the insurer. Therefore, this clause should be interpreted restrictively, that is, the insurer can terminate the contract at any time if the applicant maliciously or intentionally fails to inform the real age.
In this case, by modifying the mother's household registration file and application for joining the Party, it is obviously an act of deliberately failing to fulfill the obligation of telling the truth, which violates the provisions of Article 17 of the Insurance Law. The insurer shall have the right to terminate the insurance contract, and shall not be liable for compensation or payment of the insurance premium, and shall not refund the insurance premium.
Focus problem
Does it constitute insurance fraud?
Does this case constitute the crime of insurance fraud? Is the focus of the most intense debate.
Article 198 of China's Criminal Law stipulates that in any of the following circumstances, those who engage in insurance fraud, with a relatively large amount, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 654.38 million yuan but not more than 654.38 million yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 5 years/kloc-0 years but not more than 0 years, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan, or his property shall be confiscated: (1) The insured intentionally fabricates the subject matter of insurance to defraud the insurance money; ……
1. Is age the subject matter of insurance?
Article 12 of the insurance law stipulates: "... the subject matter of insurance refers to the property as the subject matter of insurance and its related interests or human life and body." In other words, for life insurance contracts, the subject matter of insurance refers to human life and body. So is age the subject matter of insurance? Further, is age equal to life expectancy?
Literally, age and life span are not a concept. But the question is, what does it mean that the insured deliberately fabricates the subject matter of insurance as stipulated in Article 198 of the Criminal Law? Since the insured has insured Corning Life Insurance for his mother, the subject matter of insurance should be her life and health. So can age and life span be separated? We believe that we can't separate, and people's life span is measured by age. Without age, life span will be impossible. So health and age are inseparable? Under normal circumstances, with the growth of age, people's health will gradually decline until the end of their lives. We don't rule out some special circumstances. Health has nothing to do with age, but there are few such examples, which cannot change the proposition of the ultimate relationship between age and health. Therefore, we believe that age should belong to the subject matter of insurance.
2. Whether the subject matter of insurance is intentionally fictional.
Fiction of the subject matter of insurance refers to the fact that the actor concludes an insurance contract with the insurer in order to defraud the insurance money and fictionalizes the non-existent subject matter of insurance.
The insured's mother was 77 years old when she was insured on 1998. In order to achieve the purpose of insurance, the insured changed her mother's age to 54 years old by tampering with the household registration information and the file materials of the application for joining the party. Does this behavior constitute fiction? Obviously, the 54-year-old insured does not exist, and her real age now is 77. In other words, the subject matter of insurance does not exist. Since the subject matter of insurance does not exist, it is of course fictional to carry out insurance by fictional subject matter of insurance.
Expert opinion
The influence of insurance salesman's behavior on this case
The insured repeatedly stressed that tampering with the mother's age was carried out at the instigation of the insurance salesman, so the responsibility was not on him, and the insurance company should bear the adverse consequences.
If what the applicant said is true and there is evidence to prove that the insurance salesman did carry out these acts, then the legal responsibility of the salesman should be handled separately, which is not discussed in this paper.
Article 52 of the Contract Law stipulates: "A contract is null and void under any of the following circumstances: (1) one party concludes a contract by fraud or coercion, which harms the interests of the state; (2) Malicious collusion that harms the interests of the state, the collective or a third party; (3) Covering up illegal purposes in a legal form; (4) damaging the public interest; (5) Violating the mandatory provisions of laws and administrative regulations. "
Combined with this case, the insured and the insurance salesman conspired to defraud the insurance money. From the civil point of view, if we want to discuss the nature of the contract, we think that the contract is invalid if it belongs to the situations in Item (2) and Item (3) of Article 52 of the Contract Law.