독일 형법 제265조(보험남용)에 대한 고찰

Despite the enactment of the Special Act on Prevention of Insurance Fraud, there is a growing interest in Section 265 of the German Penal Code (insurance fraud), which stipulates the preliminary crime of insurance fraud, as insurance fraud continues to increase. Of course, even before the enactment of the Special Act on Prevention of Insurance Fraud, there were arguments that preliminary crimes, such as insurance fraud under the German Penal Code, should be stipulated. However, with the criticism that the hard-won Special Act on Prevention of Insurance Fraud is a law with no new provisions in its actual content, the insurance fraud under the German Penal Code seems to receive more attention than before. The core of the argument for the introduction of a provision on the preliminary crime of insurance fraud, like in Germany, is to emphasize the prevention of insurance fraud and the importance of investigating insurance fraud in advance, as most of the evidence is likely to have already been destroyed or damaged in the investigation of insurance fraud after the claim, making it difficult for the investigative authorities to prove the crime. However, insurance fraud under the German Penal Code is not a provision that can investigate insurance fraud before the claim and punish insurance fraud from the preparatory stage, unlike the argument for the introduction of a provision on the preliminary crime of insurance fraud. Section 265 of the Penal Code was hastily included at the last minute of the 6th Criminal Law Amendment due to a special situation where internationally organized car smuggling incidents were rapidly increasing at the time of legislation. In other words, this provision is a hastily enacted law without a sufficient review and discussion period. Even for professional car smugglers, the main purpose of the law, the application of Section 265 of the Penal Code, is consistently failing, and there are hardly any scholars in Germany who recognize the substantial importance of this provision. Insurance fraud under the German Penal Code, which imposes liability for insurance fraud again in cases where the insurance claim does not meet Section 263 of the Penal Code, or where the guilt is exempted due to suspension, and punishes the preliminary act of insurance fraud, cannot be considered a preliminary crime of insurance fraud in a substantial sense.