Document Type : Original Research Paper

Authors

• H. Rostami ¹
• S. Monazami tabar ²

¹ Department of Law, Faculty of Humanities, Bu-Ali Sina University, Hamedan, Iran

² Department of Crimimnal law and Criminology, Faculty of Law and Political Science, University of Tehran, Tehran, Iran

Abstract

Objective: The crime of insurance fraud has attracted the attention of American researchers for many years, and the result of their studies has been the success in curbing this crime. The US legal system has not limited the fight against insurance fraud to punishment, but has taken precautionary measures to stifle criminal actions. The establishment of the Special Investigation Unit (SIU) as well as the American Coalition Against Insurance Fraud (ACAIF) are among the preventive and countermeasures in this system. The Special Investigation Unit is required to investigate fraudulent acts of insurance claims. The Coalition Against Insurance Fraud is also a policy-making body that proposes macro-level policies to combat this crime. In contrast, the Iranian legal system has many shortcomings in the face of this crime, both in terms of legislation and enforcement. The philosophy of the insurance institution is to examine the damages that have been caused to other economic institutions for any reason, and this institution is legally obliged to compensate it. If insurance is damaged, the repair of other economic institutions is disrupted and the country's macro-economy becomes a sick economy. The weakness of the Iranian legal system will inevitably lead to serious damage to the country's economic system and its prevention requires legal studies of pathology of the regulations. The present study has focused on the pathology of the existing regulations in the area of insurance fraud and the provision of solutions to deal with this problem more effectively.
Methodology: The method of this article is desk research, which has been done by referring to articles and books related to the subject under discussion and taking notes from them. We referred to the existing laws in the American legal system to encounter the offence of insurance fraud. Also in this field, the research and legislative background and its evolution are given. Due to the fact that the subject of this article is new and so far, no legal article or book has been written in Persian related to this subject and most of the existing articles and books were economic, it was very difficult to prepare related sources and put it into practice. The translation of English sources has been of particular importance to this. This issue can be criticized considering the importance of the crime of insurance fraud and its effect on the country's economy, and it is better for legal researchers to pay more attention to the important issue of insurance fraud.
Results: Prior to the Compulsory Insurance Law adopted in 2016, instances of insurance fraud were considered fraud. However, after the enactment of this law, the legislator put examples of this conduct under a special title and a great problem became widespread in the Iranian legal system. Since unit criminal conduct requires a single response, discrimination between instances of a single criminal title indicates a lack of desired justice. The legislature is hesitant and helpless in choosing the appropriate title and punishment for instances of insurance fraud. One of the contradictions in the law is the hesitation in adopting the title of fraud or a special title. On the other hand, knowing this fraud has many advantages, such as having the necessary intensity and also minimizing the possibility of using arbitrary policies in its severe examples. From the legislator's point of view, the title of fraud may not be sufficient and appropriate, and the enactment of a special law is deemed necessary to face this crime. Therefore, in 2016, the legislature, in an unprecedented move, included some examples of the mentioned conduct under a special title under Articles 60, 61 and 62 of the Compulsory Insurance Law of 2016 and introduced new titles in the criminal law. Of course, the penalties imposed for insurance fraud in these articles, with the exception of Article 60 of the law, were much lighter than the penalties for fraud, which is a violation of the legislature's intent because only in two cases, The idea of ​​making a lex specialis comes to his mind. One is that the intended conduct at the time of writing the law is not a crime and he seeks to create a new criminal nature. The other is that in his view, the current punishments and actions are not sufficient to deal with the conduct, which in both cases, the punishment and the measures intended for criminal behavior will be more severe than before. In the US legal system, however, a law has been enacted since 1995 called the Model Insurance Fraud Act, which covers various instances of insurer fraud. This law, which was amended in 1998 and 2019, respectively, contains various measures against the fraudster, which, in addition to deterring the offender, also include compensating the insurer. Finally, the existence of disproportionate penalties, the lack of preventive measures, a lack of comprehensive law of compulsory insurance approved in 2016 and its shortcomings against the Model Insurance Fraud Act are the main findings of this study.
Conclusion: Bring all the various instances of insurance fraud within the framework of lex specialis measure the punishment in proportion to the amount taken from the insurer, use the methods of compensation of the insurer as soon as the sentence is issued and as in the example of the Model Insurance Fraud Act, the appropriate and reasonable use of arbitrary policies in minor type of the crime of insurance fraud as well as the application of theories of restorative justice and consensual criminal procedure are among the results of the present study. In order to develop a proper infrastructure in society, politicians are obliged to create a culture in this area so that people believe that insurance serves the people and its philosophy is to use their budget to compensate for damages.
 
JEL Classification: K14, K42, Z18.

Keywords

• Insurance
• Iranian Legal System
• American Legal System
• Fraud
• Lex Specialis