Fraud in the sphere of insurance - Commentary on the...

Fraud in the field of insurance

(introduced by Federal Law No. 207-FZ of 29.11.2012)

1. Fraud in the sphere of insurance, that is, stealing someone else's property by deceit regarding the occurrence of an insured event, as well as the amount of insurance compensation payable in accordance with the law or the contract to the insurer or other person -

is punishable by a fine of up to one hundred and twenty thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to one year, or by compulsory labor for up to three hundred and sixty hours, or by correctional labor for up to one year, or restraint of liberty for up to two years, or forced labor for up to two years, or by arrest for up to four months.

2. The same act committed by a group of persons by prior conspiracy, as well as causing significant damage to a citizen,

is punishable by a fine of up to three hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to two years, or by compulsory labor for up to four hundred and eighty hours, or by correctional labor for up to two years, work for a term of up to five years with restriction of freedom for a term of up to one year or without it, or by imprisonment for up to four years with restriction of freedom for a period of up to one year or without it.

3. Acts stipulated by parts one or two of this article, committed by a person using his official position, as well as on a large scale,

is punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to three years, or by forced labor for a period of up to five years, with restraint of liberty for up to two years or without that, or by imprisonment for up to five years with a fine of up to eighty thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to six months, or without it and with restriction of freedom for a term of up to one and half years or without it .

4. Acts stipulated by parts one, two or three of this article, committed by an organized group or on an especially large scale -

is punishable by imprisonment for up to ten years, with a fine of up to one million rubles or in the amount of the wage or other income of the convicted person for a period of up to three years, or without it and with restraint of liberty for up to two years or without such.

1. Fraud in the sphere of insurance is a qualified type of fraud. The commission of this criminal act is possible only in the field of insurance relations - a special type of economic relations, including various types of insurance activities (primary insurance, reinsurance, co-insurance). Insurance in the narrow sense - the relationship between the insured and the insurer to protect the property interests of individuals and legal entities (insured persons) upon the occurrence of certain events (insured events) at the expense of insurance funds formed from insurance contributions paid by the insured (insurance premium). The insurer and the policyholder determines how the insurance fund will be formed, how it will be spent (the method of creating insurance products).

Three methods of creating insurance products are developed: self-insurance, mutual insurance, commercial insurance. The risk function is to provide insurance protection against various kinds of risks - random events leading to losses. In this function, there is a redistribution of monetary resources between all participants of insurance in accordance with the current insurance contract, at the end of which the insurance premiums (monetary funds) are not returned to the insured. The principle of randomness is that only events that show signs of probability and chance of their occurrence can be insured. The concept of randomness means that although with the possibility of the occurrence of this event it is necessary to be considered based on life experience, however, in each individual case it is not known whether this event will occur at all or at what moment it will occur.

Deliberately implemented actions are not insured, because they lack the principle of randomness. In the US insurance market there are insurance companies that have different organizational and legal forms. The only requirement is that only an entity can act as an insurer (see US Law of 27.11.1992 No. 4015-1 on the organization of insurance in the United States, as amended on 25.12.2012). Chapter 48 of the Civil Code provides for two types (two types of contracts) of insurance: property and personal. In the practice of insurance companies, analysis of insurance, it is customary to distinguish three insurance sectors: property, personal and liability. At the heart of the division of insurance in the industry are differences in the objects of insurance. In accordance with Art. 927 Civil Code and Section 2, Art. 3 of the US Law on the Organization of Insurance in the United States there are two forms of insurance: compulsory and voluntary. If we are talking about the division of insurance into state and private, then the criterion for the allocation is the form of ownership of the insurance organization. If such an organization is owned by private individuals (legal and (or) physical), then the insurance it carries is classified as private insurance. If the insurance organization is owned by the state, then such insurance, in accordance with the tradition traditionally established in our country, is called state insurance.

2. The disposition of the norm is of a blanket nature, therefore, its application must be preceded by the fact of establishing a specific regulatory framework regulating the relationship between the insured and the insurer.

3. The object of the analyzed crime completely coincides with the ancestral object of theft - these are the social relations that have developed in the sphere of crediting. Like fraud in general, qualified fraud in the insurance industry is always stealing someone else's property or acquiring the right to someone else's property by deceit or abuse of trust (see paragraphs 2 and 3 of the commentary to article 159).

4. In this case, the form of the objective side of the deed is strictly limited by the legislator: theft of someone else's property by deception in relation to the occurrence of the insured event, as well as the amount of insurance compensation payable in accordance with the law or the contract to the insured or other person.

5. A criminal act is considered to be completed after the insured (other persons) received the amount of money (goods) not stipulated by the insurance contract, as well as the acquisition by them (them) of the legal right to dispose of such money.

6. In itself, the fact that the insurer provides deliberately false and (or) unreliable information to the insurer, depending on the circumstances of the case, may contain signs of preparation for fraud in the sphere of insurance or attempt to commit such an offense.

7. Subject is any capable person who has reached the age of 16.

8. The subjective side - direct specified intent. The use of fictitious documents may indicate the existence of intent aimed at fraud in the sphere of crediting.

9. Fraud in the field of insurance, committed with the use of a forged official document granting rights, is qualified as a set of crimes under Part 1 of Art. 327 CC and the corresponding part of the article being commented.

10. If the forged official document was not used for reasons beyond the control of the culprit, the deed is qualified under Part 1 of Art. 327 and part 1 of Art. 30 of the Criminal Code, part 4 of the commented article as a preparation for fraud in the insurance industry.

11. If a person made a fake document for the purpose of fraud in the insurance industry, he used it for this purpose, but for reasons beyond his control he could not acquire the right to other people's property, the deed is qualified as a set of crimes provided for by Part 1 of Art. 327, as well as part 3 of Art. 30 of the Criminal Code and, depending on the circumstances of the case, the relevant part of the article being commented.

12. Fraud in the field of insurance, committed using a counterfeit official document manufactured by another person, is fully covered by the offense set forth in the article under review, and does not require additional qualification under art. 327 of the Criminal Code.

13. The law envisages both a qualified composition - fraud in the insurance sphere committed by a group of persons by prior conspiracy, as well as causing significant damage to a citizen (Part 2), and especially qualified elements of the crime: first, acts committed with using the guilty of their official position, as well as in a large amount (Part 3); secondly, acts committed by an organized group or on an especially large scale (Part 4).

14. With regard to qualifying signs - a group of persons on a preliminary conspiracy, causing significant damage to a citizen, the use of guilt by their officials, an organized group of people - see the comment, to art. 35, 159.

15. According to Notes, to Art. 1591 UK large size in the commented article is the value of the stolen property - 1 million 500 thousand rubles, an especially large amount - 6 million rubles.

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