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연구보고서
보험범죄에 대한 형사정책적 대안 연구
- 작성일2016.01.19
- 조회수559
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| 연구책임자 | 신의기 | 소속기관 | 한국형사·법무정책연구원 |
|---|---|---|---|
| 내부연구참여자 | 신의기 외 1인 | 외부참여연구자 | |
| 발행기관 | 한국형사·법무정책연구원 | 공개여부 | 공개 |
| 출판일 | 2015년 12월 | 등록일 | 2016.01.19 |
| 페이지 | 0 | 분류기호 | 15-AA-04 |
| 언어 | 한국어 | 판매여부 | 판매 |
| 판매가격 | 10,000 | 보고서유형 | |
| ISBN | 표준분류 | ||
| 연구유형 | 자료유형 |
국문요약 ··············································································1
❘제1장❘보험범죄의 개념과 특성 (신의기) ··························25
제1절 연구의 필요성과 목적 ······································································27
1. 연구의 필요성 ·······························································································27
2. 연구의 범위와 방법 ······················································································29
제2절 보험범죄의 정의 ···············································································31
1. 보험범죄와 유사개념 ····················································································31
2. 현행법상 보험범죄 규정 ··············································································35
가. 형법, 특정경제범죄가중처벌법 ······································································35
나. 보험업법 ··········································································································36
다. 공적 보험 관련 법률 ·····················································································37
제3절 보험범죄의 유형 ···············································································40
1. 사기적 보험계약 체결 ··················································································41
2. 보험사고의 고의적 유발 ··············································································45
3. 보험사고의 위장 ···························································································47
4. 보험사고 발생시 피해과장 ···········································································48
5. 보험금 부정수급 ···························································································49
제4절 보험범죄의 특성 ···············································································51
1. 범죄피해의 확장성 ························································································51
2. 범죄의 이중성 ·······························································································53
3. 수법의 다양화와 혐의 입증의 어려움 ························································54
4. 범죄자의 죄의식 결여 ··················································································56
5. 보험범죄의 보호법익 ····················································································57
❘제2장❘보험범죄의 실태와 보험범죄에 대한 국민의식 (신의기) ··· 59
제1절 보험범죄 발생현황 ············································································61
1. 보험범죄 적발현황 ························································································61
2. 보험종목별 적발 ···························································································64
3. 유형별 적발 ··································································································65
제2절 공보험범죄의 실태 ············································································69
1. 국민건강보험 ·································································································69
가. 타인의 주민등록번호 이용 ············································································74
나. 요양기관의 거짓･부당청구 주요 신고 사례 ·················································75
2. 산업재해보험 ·································································································77
3. 실업급여 ········································································································78
4. 국민연금 부정수급 ························································································80
제3절 보험범죄의 추세 ···············································································81
제4절 보험범죄의 심각성에 대한 국민의 인식 ···········································83
1. 보험범죄의 빈도와 심각성에 대한 인식 ·····················································83
2. 보험사기 발각가능성에 대한 인식 ······························································86
3. 보험사기 용인도 및 처벌에 대한 태도 ······················································87
❘제3장❘보험범죄 방지법제의 개선 (신의기) ·······················91
제1절 보험범죄 방지입법 성과 ···································································93
1. 보험업법 개정 ·······························································································93
2. 자동차손해배상보장법 개정 ·········································································96
3. 보험범죄 방지 관련 최근 입법안 ································································97
제2절 보험범죄에 대한 주요 입법안 검토 ··················································98
1. 보험사기방지 특별법안 ················································································98
가. 보험사기행위의 개념 ·····················································································99
나. 보험사기 방지 전담 상설기구 ·····································································100
다. 보험사기 행위 조사 및 보고 ······································································101
라. 보험계약자 등의 보호 및 비밀유지의무 ····················································102
마. 처벌규정 ·······································································································103
바. 보험금반환 ····································································································105
2. 형법 일부개정법률안 ··················································································105
3. 보험업법 일부개정법률안 ··········································································106
4. 주요 외국의 입법 ·······················································································107
가. 미국 ···············································································································107
나. 독일 ···············································································································112
다. 오스트리아 ····································································································113
라. 영국 ···············································································································114
5. 입법안에 대한 쟁점과 해결방안 ·······························································114
가. 보험범죄에 대한 입법형식의 문제 ·····························································114
나. 형법에 규정하는 방식 ·················································································115
다. 보험업법에 규정하는 방식 ··········································································118
라. 보험범죄에 관한 특별법 제정 방식 ···························································119
마. 소결 ···············································································································119
제3절 보험범죄에 대한 양형에 대한 검토 ···············································120
1. 보험범죄에 대한 양형실태 ········································································120
2. 법원의 양형기준 ·························································································122
3. 보험범죄에 대한 양형 개선방안 ·······························································123
❘제4장❘보험금 목적의 살인과 피보험자 보호방안 (신의기) ····125
제1절 보험금 목적 살인과 사망자 보호 ···················································127
1. 사망보험의 의의와 계약유형 ·····································································127
가. 사망보험의 의의 ···························································································127
나. 계약유형 ·······································································································128
2. 보험금 목적 살인유형 ················································································129
가. 보험금 노려 타인살해, 자신이 사망한 것처럼 위장 ································129
나. 친ㆍ인척 살해 ······························································································130
다. 배우자 살해 ··································································································132
라. 장애인 생명보험 가입후 살해 ·····································································132
제2절 사망보험에서의 피보험자 보호 장치 ··············································133
1. 타인의 사망을 보험사고로 하는 보험계약의 요건 ··································133
2. 피보험자의 서면동의 철회권 ·····································································134
제3절 사망보험의 문제점 ··········································································135
1. 보험사기로부터 피보험자 보호책 부재 ····················································135
2. 피보험자 동의요건의 무력화 ·····································································136
3. 보험수익자 변경에 대한 제한 부재 ··························································137
제4절 개선 방안 ·······················································································137
1. 보험가입시 확인을 통한 위험계약 인수거부 ···········································138
2. 동의제도의 실질성 확보 ············································································138
3. 사망사고에 대한 조사 강화 ·······································································140
❘제5장❘보험사기 조사 시스템 개선방안 (황만성) ············141
제1절 현행 보험범죄 조사체계 ·································································143
1. 개관 ·············································································································143
2. 현행 보험범죄 조사체계 ············································································145
3. 보험범죄 조사기관 ·····················································································147
가. 금융위원회와 금융감독원 ············································································147
나. 국가기관 ·······································································································148
다. 보험사 및 보험협회 ·····················································································149
4. 보험사기 인지ㆍ조사ㆍ수사 연계체계 ·······················································151
제2절 보험범죄에 대한 현행 조사체계의 한계 ·········································153
1. 보험범죄 조사의 법적 근거 미약 ·····························································153
2. 보험사와 수사기관간의 협조의 어려움 ····················································154
3. 보험사기 데이터베이스의 불완전성 ··························································156
4. 범죄인지프로그램의 한계 및 인력의 부족 ···············································156
제3절 외국의 보험범죄 조사체계 ·····························································158
1. 미국 ·············································································································158
가. 보험범죄국(NICB, National Insurance Crime Bureau) ····················158
나. 보험사기국(IFB, Insurance Fraud Bureau) ···········································159
다. 보험회사의 특별조사팀(SIU, Special Investigation Unit) ···················160
라. 조사기관간의 유기적 연계 ··········································································162
2. 영국의 보험범죄 조사기관과 체계 ····························································164
제4절 보험사기조사체계의 개선방안 ·························································166
1. 보험사기 조사체계 효율화 방안 ·······························································166
2. 관련기관 상시 협력체계 구축 ···································································169
3. 보험범죄방지기구의 설립과 운영 ······························································170
4. 보험범죄 조사권의 확보 방안 ···································································171
5. 민간조사제도의 도입방안 ··········································································172
가. 민간조사제도의 논의 경과 ··········································································172
나. 민간조사제도 도입에 관한 찬반 논의 ························································173
다. 보험범죄의 조사에 있어서 민간조사제도의 활용가능성 ···························175
6. 보험범죄 조사권의 부여방안 ·····································································175
❘제6장❘보험사기 관련 개인정보공유 (황만성) ·················177
제1절 보험사기에 있어서 정보공유의 의의 ··············································179
제2절 보험관련 개인정보보호 법률 ··························································180
1. 개관 ·············································································································180
가. 보험관련 개인정보의 개념 ··········································································180
나. 보험관련 개인정보보호 법률 ······································································182
2. 개인정보보호법 ···························································································183
가. 입법배경 및 구성 ·························································································183
나. 개인정보의 수집 ···························································································183
다. 개인정보의 이용 및 제공 ············································································184
라. 개인정보의 파기 ···························································································184
3. 신용정보의 이용 및 보호에 관한 법률 ····················································184
가. 입법목적 및 구성 ·························································································184
나. 신용정보법의 주요 내용 ··············································································185
다. 신용정보의 수집 및 조사 ············································································185
라. 신용정보의 제공 및 제공목적 ·····································································185
마. 신용정보의 집중관리 ···················································································186
4. 정보통신망 이용촉진 및 정보보호 등에 관한 법률 ································186
5. 보험업법 ······································································································187
제3절 보험개인정보 보호법제의 검토 ·······················································187
1. 적용 법률의 불명확 및 중첩적용 ·····························································187
2. 보험개인정보의 제3자 제공 ······································································189
가. 개인정보법률 규정 ·······················································································189
나. 정보주체의 보호 미약 ·················································································190
다. 언더라이팅에 있어서의 제한 ······································································191
제4절 국민건강보험과 사보험과의 정보공유의 쟁점 ································192
1. 논의배경 ······································································································192
2. 국민건강보험 정보공유의 논쟁 ·································································193
가. 민간보험업계와 재정경제부의 주장 ····························································193
나. 국무총리실 규제개혁기획단의 입장 ····························································194
다. 국민건강보험공단 및 시민사회단체의 입장 ···············································194
3. 미국의 공공의료개혁과 시사점 ·································································195
가. 배경 ···············································································································195
나. 미국 공적의료보험의 사기방지 노력 ··························································196
4. 국민건강보험상의 개인정보 공유에 관한 고찰 ········································198
❘제7장❘맺는 말 (신의기) ·················································203
참고문헌 ·········································································209
Abstract ········································································215
❘제1장❘보험범죄의 개념과 특성 (신의기) ··························25
제1절 연구의 필요성과 목적 ······································································27
1. 연구의 필요성 ·······························································································27
2. 연구의 범위와 방법 ······················································································29
제2절 보험범죄의 정의 ···············································································31
1. 보험범죄와 유사개념 ····················································································31
2. 현행법상 보험범죄 규정 ··············································································35
가. 형법, 특정경제범죄가중처벌법 ······································································35
나. 보험업법 ··········································································································36
다. 공적 보험 관련 법률 ·····················································································37
제3절 보험범죄의 유형 ···············································································40
1. 사기적 보험계약 체결 ··················································································41
2. 보험사고의 고의적 유발 ··············································································45
3. 보험사고의 위장 ···························································································47
4. 보험사고 발생시 피해과장 ···········································································48
5. 보험금 부정수급 ···························································································49
제4절 보험범죄의 특성 ···············································································51
1. 범죄피해의 확장성 ························································································51
2. 범죄의 이중성 ·······························································································53
3. 수법의 다양화와 혐의 입증의 어려움 ························································54
4. 범죄자의 죄의식 결여 ··················································································56
5. 보험범죄의 보호법익 ····················································································57
❘제2장❘보험범죄의 실태와 보험범죄에 대한 국민의식 (신의기) ··· 59
제1절 보험범죄 발생현황 ············································································61
1. 보험범죄 적발현황 ························································································61
2. 보험종목별 적발 ···························································································64
3. 유형별 적발 ··································································································65
제2절 공보험범죄의 실태 ············································································69
1. 국민건강보험 ·································································································69
가. 타인의 주민등록번호 이용 ············································································74
나. 요양기관의 거짓･부당청구 주요 신고 사례 ·················································75
2. 산업재해보험 ·································································································77
3. 실업급여 ········································································································78
4. 국민연금 부정수급 ························································································80
제3절 보험범죄의 추세 ···············································································81
제4절 보험범죄의 심각성에 대한 국민의 인식 ···········································83
1. 보험범죄의 빈도와 심각성에 대한 인식 ·····················································83
2. 보험사기 발각가능성에 대한 인식 ······························································86
3. 보험사기 용인도 및 처벌에 대한 태도 ······················································87
❘제3장❘보험범죄 방지법제의 개선 (신의기) ·······················91
제1절 보험범죄 방지입법 성과 ···································································93
1. 보험업법 개정 ·······························································································93
2. 자동차손해배상보장법 개정 ·········································································96
3. 보험범죄 방지 관련 최근 입법안 ································································97
제2절 보험범죄에 대한 주요 입법안 검토 ··················································98
1. 보험사기방지 특별법안 ················································································98
가. 보험사기행위의 개념 ·····················································································99
나. 보험사기 방지 전담 상설기구 ·····································································100
다. 보험사기 행위 조사 및 보고 ······································································101
라. 보험계약자 등의 보호 및 비밀유지의무 ····················································102
마. 처벌규정 ·······································································································103
바. 보험금반환 ····································································································105
2. 형법 일부개정법률안 ··················································································105
3. 보험업법 일부개정법률안 ··········································································106
4. 주요 외국의 입법 ·······················································································107
가. 미국 ···············································································································107
나. 독일 ···············································································································112
다. 오스트리아 ····································································································113
라. 영국 ···············································································································114
5. 입법안에 대한 쟁점과 해결방안 ·······························································114
가. 보험범죄에 대한 입법형식의 문제 ·····························································114
나. 형법에 규정하는 방식 ·················································································115
다. 보험업법에 규정하는 방식 ··········································································118
라. 보험범죄에 관한 특별법 제정 방식 ···························································119
마. 소결 ···············································································································119
제3절 보험범죄에 대한 양형에 대한 검토 ···············································120
1. 보험범죄에 대한 양형실태 ········································································120
2. 법원의 양형기준 ·························································································122
3. 보험범죄에 대한 양형 개선방안 ·······························································123
❘제4장❘보험금 목적의 살인과 피보험자 보호방안 (신의기) ····125
제1절 보험금 목적 살인과 사망자 보호 ···················································127
1. 사망보험의 의의와 계약유형 ·····································································127
가. 사망보험의 의의 ···························································································127
나. 계약유형 ·······································································································128
2. 보험금 목적 살인유형 ················································································129
가. 보험금 노려 타인살해, 자신이 사망한 것처럼 위장 ································129
나. 친ㆍ인척 살해 ······························································································130
다. 배우자 살해 ··································································································132
라. 장애인 생명보험 가입후 살해 ·····································································132
제2절 사망보험에서의 피보험자 보호 장치 ··············································133
1. 타인의 사망을 보험사고로 하는 보험계약의 요건 ··································133
2. 피보험자의 서면동의 철회권 ·····································································134
제3절 사망보험의 문제점 ··········································································135
1. 보험사기로부터 피보험자 보호책 부재 ····················································135
2. 피보험자 동의요건의 무력화 ·····································································136
3. 보험수익자 변경에 대한 제한 부재 ··························································137
제4절 개선 방안 ·······················································································137
1. 보험가입시 확인을 통한 위험계약 인수거부 ···········································138
2. 동의제도의 실질성 확보 ············································································138
3. 사망사고에 대한 조사 강화 ·······································································140
❘제5장❘보험사기 조사 시스템 개선방안 (황만성) ············141
제1절 현행 보험범죄 조사체계 ·································································143
1. 개관 ·············································································································143
2. 현행 보험범죄 조사체계 ············································································145
3. 보험범죄 조사기관 ·····················································································147
가. 금융위원회와 금융감독원 ············································································147
나. 국가기관 ·······································································································148
다. 보험사 및 보험협회 ·····················································································149
4. 보험사기 인지ㆍ조사ㆍ수사 연계체계 ·······················································151
제2절 보험범죄에 대한 현행 조사체계의 한계 ·········································153
1. 보험범죄 조사의 법적 근거 미약 ·····························································153
2. 보험사와 수사기관간의 협조의 어려움 ····················································154
3. 보험사기 데이터베이스의 불완전성 ··························································156
4. 범죄인지프로그램의 한계 및 인력의 부족 ···············································156
제3절 외국의 보험범죄 조사체계 ·····························································158
1. 미국 ·············································································································158
가. 보험범죄국(NICB, National Insurance Crime Bureau) ····················158
나. 보험사기국(IFB, Insurance Fraud Bureau) ···········································159
다. 보험회사의 특별조사팀(SIU, Special Investigation Unit) ···················160
라. 조사기관간의 유기적 연계 ··········································································162
2. 영국의 보험범죄 조사기관과 체계 ····························································164
제4절 보험사기조사체계의 개선방안 ·························································166
1. 보험사기 조사체계 효율화 방안 ·······························································166
2. 관련기관 상시 협력체계 구축 ···································································169
3. 보험범죄방지기구의 설립과 운영 ······························································170
4. 보험범죄 조사권의 확보 방안 ···································································171
5. 민간조사제도의 도입방안 ··········································································172
가. 민간조사제도의 논의 경과 ··········································································172
나. 민간조사제도 도입에 관한 찬반 논의 ························································173
다. 보험범죄의 조사에 있어서 민간조사제도의 활용가능성 ···························175
6. 보험범죄 조사권의 부여방안 ·····································································175
❘제6장❘보험사기 관련 개인정보공유 (황만성) ·················177
제1절 보험사기에 있어서 정보공유의 의의 ··············································179
제2절 보험관련 개인정보보호 법률 ··························································180
1. 개관 ·············································································································180
가. 보험관련 개인정보의 개념 ··········································································180
나. 보험관련 개인정보보호 법률 ······································································182
2. 개인정보보호법 ···························································································183
가. 입법배경 및 구성 ·························································································183
나. 개인정보의 수집 ···························································································183
다. 개인정보의 이용 및 제공 ············································································184
라. 개인정보의 파기 ···························································································184
3. 신용정보의 이용 및 보호에 관한 법률 ····················································184
가. 입법목적 및 구성 ·························································································184
나. 신용정보법의 주요 내용 ··············································································185
다. 신용정보의 수집 및 조사 ············································································185
라. 신용정보의 제공 및 제공목적 ·····································································185
마. 신용정보의 집중관리 ···················································································186
4. 정보통신망 이용촉진 및 정보보호 등에 관한 법률 ································186
5. 보험업법 ······································································································187
제3절 보험개인정보 보호법제의 검토 ·······················································187
1. 적용 법률의 불명확 및 중첩적용 ·····························································187
2. 보험개인정보의 제3자 제공 ······································································189
가. 개인정보법률 규정 ·······················································································189
나. 정보주체의 보호 미약 ·················································································190
다. 언더라이팅에 있어서의 제한 ······································································191
제4절 국민건강보험과 사보험과의 정보공유의 쟁점 ································192
1. 논의배경 ······································································································192
2. 국민건강보험 정보공유의 논쟁 ·································································193
가. 민간보험업계와 재정경제부의 주장 ····························································193
나. 국무총리실 규제개혁기획단의 입장 ····························································194
다. 국민건강보험공단 및 시민사회단체의 입장 ···············································194
3. 미국의 공공의료개혁과 시사점 ·································································195
가. 배경 ···············································································································195
나. 미국 공적의료보험의 사기방지 노력 ··························································196
4. 국민건강보험상의 개인정보 공유에 관한 고찰 ········································198
❘제7장❘맺는 말 (신의기) ·················································203
참고문헌 ·········································································209
Abstract ········································································215
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