보험사기방지특별법상 기망행위의 적용대상과 보험사기죄 실행 착수시기에 관한 비판적 분석

The government has been enforcing Special Law of Insurance Fraud Prevention since it was legislated on September 30, 2016 to raise the caution against insurance fraud and to prevent and punish it. However, it is considered that the purpose of legislating special law was not applied properly when looking into the content. Time for start of execution of insurance fraud crime or the range that can be admitted as insurance fraud can be interpreted even getting smaller comparing to fraud on Criminal Act. Especially, as time for start of execution of insurance fraud crime was regulated as time for insurance claim, it has become almost impossible to prevent insurance fraud before insurance claim such as breach of duty to disclose. If the special law was legislated to prevent and punish insurance fraud, the legislation should have been done with the appropriate contents about insurance fraud crime comparing to fraud in existing criminal law. It is wrong to restrict occurrence, cause and content of insurance accident to the object of defrauding. The requirements for insurance fraud should have been legislated with the contents that include both hard and soft insurance fraud which can be caused in the process of signing insurance contract, keeping it, occurrence of insurance accident and insurance claim. However, the Special Law has failed. The behavior like excessive claim should have been regulated as insurance fraud crime explicitly. Simple breach of duty to disclose cannot be regarded as fraud behavior. But, the behavior of signing insurance contract by breach of duty to disclose with bad faith or causing insurance accident intentionally should be interpreted as insurance fraud crime even before insurance claim. In respect of preventing insurance fraud, the revision of time for start of executing insurance fraud crime is strongly required.