Text|Yang Zi edAsh ash
For many years, there is hardly any insurance market entity that has not suffered a fine under the "giving benefits other than those agreed in the contract".
According to incomplete statistics, from 2012 to 2022, the insurance regulatory authorities issued a total of 2,277 fines for violations of the granting of extra-contractual benefits, with a penalty amount of 17.7 billion yuan.
In fact, "giving benefits other than those agreed in the contract" has always been one of the most punishable violations in the insurance industry.
In recent years, the annual regulatory fines in the insurance industry are generally around 2,000, of which no less than 200 fines under the item of "giving extra-contractual benefits", and even close to 300 in some years, accounting for a very high proportion of insurance regulatory penalties.
However, there are many controversies, challenges, and the issuance of fines regarding the determination of the nature of "giving benefits other than those agreed in the contract" and the objects of application. Until the deputies of the National People's Congress directly put forward a bill, calling for the amendment of the relevant laws
In 2021, Zhou Yanfang, deputy general manager of CPIC Life Insurance Shanghai Branch, a deputy to the National People's Congress, submitted a proposal to amend the Insurance Law to "prohibit the granting of benefits other than insurance contracts" at the two sessions.
At present, a new round of revision of the Insurance Law has been initiated, and the industry expects that this provision of "benefits other than insurance contracts", which has lasted for 30 years, will be amended accordingly.
Let us analyze and think about the problems of "interests other than contractual agreements" under the existing regulatory framework.
-insurance today-
"Giving benefits other than those agreed in the contract".
An anti-unfair competition law in the Insurance Act
to give benefits other than those agreed in the contract", the first ** in 1995 promulgated the "Insurance Law".
Article 106 of the Insurance Law stipulates that "insurance companies and their staff shall not engage in the following acts in the course of insurance business activities:(4) Undertaking to give the policyholder, the insured or the beneficiary a rebate of insurance premiums or other benefits other than those stipulated in the insurance contract".
After the resumption of domestic business, the drafting of insurance legislation began in 1992 and was finally promulgated in June 1995.
The drafting of the Insurance Law in China mainly refers to the Insurance Law of the Taiwan region. However, there is no provision in Taiwan's Insurance Law that prohibits the granting of extra-contractual benefits to policyholders.
In 1999, when the Insurance Law was amended, the phrase "promise to give" in this article was amended to "give or promise to give", which is still used today.
The Anti-Unfair Competition Law promulgated in 1993 was the one that made it clear that the Insurance Law prohibits the policyholder, the insured or the beneficiary from giving rebates or other benefits other than those stipulated in the insurance contract.
Until now, when it comes to the prohibition of the giving of benefits other than those agreed in the contract, the general interpretation of the Insurance Law has been to prevent unfair competition and prevent commercial bribery.
-insurance today-
"Giving benefits other than those agreed in the contract".
with unfair competition and commercial bribery
There are three differences in the identification
Although the relevant provisions of the Insurance Law on "giving benefits other than those agreed in the contract" are facilitated by the Anti-Unfair Competition Law, there are considerable differences and differences between the two on the determination of unfair competition and commercial bribery.
The first difference is that there is a significant difference in the object of the benefit
The Anti-Unfair Competition Law makes a strict provision in Article 8 regarding the phenomenon of "kickbacks" in sales:
Proprietors must not use property or other means to bribe to sell or purchase goods.
Those who secretly give kickbacks to the other party's unit or individual outside the account shall be punished as bribery;Where the other party's unit or individual secretly accepts kickbacks outside the account, it shall be punished as **.
The Anti-Unfair Competition Law was amended twice in November 2017 and April 2019. Article 7 of the new Anti-Unfair Competition Law stipulates that the objects that may not be used to bribe relevant persons by property or other means to seek transaction opportunities or competitive advantages are limited to the following three categories of persons:
The staff of the counterparty, the unit or individual entrusted by the counterparty to handle relevant affairs, and the unit or individual who uses his authority or influence to influence the transaction.
The Anti-Unfair Competition Law completely excludes transaction partners from the subject of commercial bribery**.
However, the objects that are not allowed to be given rebates or other benefits under the Insurance Law happen to be the transaction partners of the policyholder, the insured or the beneficiary, rather than the three categories of persons stipulated in the Anti-Unfair Competition Law.
The second difference is that there is a significant difference in the target of sanctions
From the perspective of anti-commercial bribery, the prohibition on giving insurance premium rebates or other benefits to policyholders, insureds or beneficiaries other than those stipulated in the insurance contract is also significantly different from the state's handling of commercial bribery.
According to Article 5 of China's Anti-Commercial Bribery Law, anyone who secretly gives kickbacks to the other party's unit or individual outside the account shall be punished as bribery;Where the other party's unit or individual secretly accepts kickbacks outside the account, it shall be punished as **.
If giving insurance premium rebates or other benefits to the policyholder, the insured or the beneficiary other than those stipulated in the insurance contract constitutes commercial bribery, then the party paying the fee will constitute the crime of bribery, and the party receiving it will constitute the crime of **. If the amount is more than 5,000 yuan, you can file a case.
However, in reality, the insurance industry does not easily transfer the rebate of insurance premiums or other benefits not provided for in the insurance contract to the judiciary, and only the insurance company is held accountable, not the policyholder, the insured and the beneficiary who accept the fee.
In other words, the handling of commercial bribery is based on bilateral accountability, while the handling of non-contractual benefits by the insurance industry is manifested in the treatment of unilateral accountability of insurance institutions.
The third difference is whether it applies to individual trading partners
Judging from the provisions of China's Anti-Unfair Competition Law and the Anti-Commercial Bribery Law, the act of unfair competition and commercial bribery is constituted by a business operator giving kickbacks or other benefits to a transaction partner, and the transaction object does not include individual consumers.
This is because it is impossible to achieve the goal of gaining a competitive advantage by winning an individual customer, and giving benefits to an individual customer other than the contract does not constitute an act of unfair competition as referred to in the Anti-Unfair Competition Law.
For individual customers, it is more straightforward for merchants to directly reduce prices, and it is generally not necessary to collect ** and then pay rebates to individual customers.
It is even more inconceivable if it is determined that a business operator commits commercial bribery (bribery) to an individual customer in order to win over that individual customer.
This is because the crime of offering bribes as provided for in Article 389 of the Criminal Law of our country refers to the act of giving property to state functionaries and staff members of collective economic organizations for the purpose of seeking improper benefits.
There is no legal problem of a business operator offering bribes to an ordinary individual who has nothing to do with the functions and powers of the unit.
When China drafted the Insurance Law in 1992, it referred to the payment of premium rebates or benefits outside the contractIt's not inherently for individual customers.
Because at that time, real personal life insurance had not yet started. Even if there is a personal insurance paid by an individual, it still exists in the form of a unit's organization. Life insurance contracts issued directly to individuals were largely non-existent at the time.
For residents at that time, the dream of private cars had not even begun, and there was basically no motor vehicle insurance for individuals as insureds at that time.
After the introduction of private cars into ordinary households and the rise of individual insurance marketing, with the intensification of competition, the behavior of salespeople to rebates and small gifts to insured individual customers gradually appeared.
The reason why the regulatory authority punishes the marketer for giving small gifts to customers is because Article 131 of the Insurance Law stipulates that insurers, insurance brokers and their employees shall not engage in the following behaviors in handling insurance business activities: ......4) Giving or promising to give the policyholder, the insured or the beneficiary benefits other than those agreed in the insurance contract.
The "non-contractual benefits" here do not specify the starting criteria, which leads to the extreme in enforcement.
Article 8 of China's Anti-Commercial Bribery Law clearly excludes the giving of small gifts in accordance with commercial practices from commercial bribery.
-insurance today-
"Giving benefits other than those agreed in the contract".
One other industry does not
And in the insurance industry, there are high frequency penalties for violations
Not only is there a significant difference between the "giving benefits other than those agreed in the contract" in the Insurance Law and the determination of unfair competition and commercial bribery in the Anti-Unfair Competition Law, but there is also a great deal of controversy over the actual administrative law enforcement operations of the regulatory authorities
The China Insurance Regulatory Commission's "Implementation Opinions on the Special Work of the Insurance Industry to Deal with Commercial Bribery" (Bao Jian Fa 2006 No. 26) lists kickbacks, property or other benefits given to policyholders as the key targets of the special governance of commercial bribery.
However, according to China's Anti-Commercial Bribery Law, the element of kickbacks constituting commercial bribery is to secretly give money or benefits to the other party unit or individual outside the account, which emphasizes "off-the-books covertly".
The preferential treatment given to the other party by the operator in the form of explicit and truthful accounting when selling goods, including deducting a certain proportion of the total price when paying the price or returning the total price according to a certain proportion after paying the total price, are all legal discounts.
When an insurance operator "gives a premium rebate or extra-contractual benefits", if it is "express" and truthfully recorded in the accounts, will it not be punished?
Apparently not. Because the Insurance Law emphasizes "giving or promising to give", it has nothing to do with whether it is "off-the-books and covertly".
Compared with other industries, the insurance industry has the strictest regulations on the "granting of extra-contractual benefits".
There are also anti-commercial bribery and anti-unfair competition issues in the banking industry, but the Commercial Bank Law does not have penalty provisions for depositors and lenders to grant extra-contractual benefits.
Article 52 prohibits the staff members of commercial banks from taking advantage of their positions to solicit or accept bribes or accept kickbacks and handling fees in various names in violation of state regulations.
The benchmark interest rate of the banking industry is not market-oriented, because the maximum interest rate on deposits and the minimum interest rate on loans have always been mandatory, and the banking industry is a relatively strong party in the transaction, but despite this, it is still extremely common for commercial banks to give customers incentives outside the contract when handling deposit and loan business.
Recently, the anti-corruption in the pharmaceutical industry has been in full swing, and a large number of hospital directors have been dismissed. However, Article 88 of China's Drug Administration Law only prohibits pharmaceutical companies from giving property or other improper benefits to the person in charge, purchaser, doctor, pharmacist and other relevant personnel of medical institutions.
However, it does not prohibit pharmaceutical companies from directly giving profits to their counterparties or giving benefits outside the contract.
There are hundreds of industries engaged in sales, but if you search for "giving penalties for extra-contractual benefits" as a keyword, the search terms are all in the insurance industry!
-insurance today-
"Giving benefits other than those agreed in the contract".
There are thousands of punishment cases, some of which should be punished, and some of which are very "unjust".
From the perspective of the insurance industry as a whole, the mentality of business entities to supervise and punish "interests other than those agreed in the contract" is relatively complicated.
On the one hand, the overall operating environment and operating conditions of the insurance industry are not ideal, and about 30% of the enterprises in the industry are in a situation of operating losses every year.
As for the cost situation of grassroots insurance institutions, it is often stretched, in this case, if the industry still has to roll up and vicious competition, the development prospects are worrying.
Therefore, the industry and market entities as a whole support and support the prohibition of rebates, the granting of premium rebates and the granting of benefits outside the contract.
The self-discipline conventions issued by the insurance industry over the years to limit handling fees, limit small account payments, and prohibit rebates are often also due to the spontaneous requirements of market entities.
Judging from the cases of punishment, some market entities and sales personnel are indeed very out of line in giving "benefits other than those agreed in the contract".
Some insurance companies have formulated marketing plans to give away millions of yuan worth of Feitian Moutai to policyholders.
In the name of corporate activities, some insurance companies organized dozens of customers to travel abroad, involving an amount of nearly 700,000 yuan.
Some insurance companies will give away ** products to customers during the product briefing.
Although there are only a small number of such "large-scale" extra-contractual benefits, it is enough to show that it is indeed necessary for the insurance legislation and regulatory authorities to take action to regulate and crack down on the granting of extra-contractual benefits.
But on the other hand, in the face of some cases of punishment for giving extra-contractual benefits, the industry and many insurance companies can't help but shake their heads helplessly and let out a wry smile.
A salesperson gave a pot to a customer and was fined 1,000 yuan.
A salesperson gave a small water dispenser to a customer and was fined 1,000 yuan.
After paying a premium of 13,000 yuan, a company gave 4 sets of commemorative coins (8 yuan per set) and 2 bed sheets (20 yuan each) to customers, with a total value of 72 yuan, and was fined 50,000 yuan.
The reason for the penalty is that the policyholder has been given an advantage outside the contract.
The sale of products in any industry inevitably requires ** activities. Based on the recognition and support of customers to themselves, giving small souvenirs to express their gratitude is universal, and it is not prohibited by other laws in China, why not only the insurance industry?
-insurance today-
"Interests other than those agreed in the contract".
How should we look at the revision of the Insurance Law?
Of course, competition issues in the insurance industry can not only be identified and regulated in accordance with the Anti-Unfair Competition Law, but special legislative arrangements can be made according to the characteristics of the industry itself, which is precisely the significance and value of the special law.
Just as we need the Insurance Law to make special provisions on insurance contracts even though the Civil Code has very detailed provisions on contract legislation.
However, with the passage of time, the competitive environment in the insurance industry has changed significantly from when the Insurance Law was originally enacted, and some provisions are no longer suitable for today's practical needs. In the process of revising the Insurance Law, attention should be paid to the regulation of the extra-contractual benefits given to relevant parties in insurance sales, and the following issues should be fully considered:
Restrict the issue of insurance and insurance for the benefit of the unit
Automobile 4S shop insurance**, banking institution insurance**, window business insurance** and unit insurance, all have the problem of using the resources they have to ask for benefits openly and secretly. In this regard, there is indeed a real problem of unfair competition and commercial bribery.
It is recommended to clarify that insurance companies and their staff shall not use financial or other means to bribe the following institutions or individuals in order to seek transaction opportunities or competitive advantages:
Part-time ** person in charge or staff of the institution;
The person in charge of the insured unit or the person entrusted to handle the insurance business;
Units or individuals that use their authority or influence to influence insurance sales.
Where an insurance company's staff commits bribes, it shall be deemed to be an act of the company.
Legitimate premium discounts should be allowed in the sale of insurance
China's insurance rates and fees themselves have commercial attributes, and insurance companies also enjoy the same pricing power over products and services as general enterprises.
If it does not violate the regulatory system of insurance terms and rates, and does not violate the measures of integrating newspapers and banks, the insurance company can give the policyholder a certain premium discount under certain conditions.
For example, premium discounts should be allowed for the insured unit's insurance to be a super-large business or a master policy, the insured unit's risk control ability is strong, and the policyholder continues to renew the insurance in the company without accidents for several years.
The premium discount can be deducted from the total premium at the time of entering into the insurance contract, and in special cases, it can be refunded at a certain percentage after paying the total premium.
However, when the premium discount is given to the insured unit in the form of fee refund, both parties must publicly and truthfully enter the account. If it is not truthfully recorded in the account, it will be punished as a kickback.
The insurance company should be allowed to provide the necessary additional services to the policyholder in the insurance contract
For example, in vehicle insurance, free rescue, driving, car inspection and other services are given once a year, or some other car-related services are given to customers.
Such as paint touch-ups, car washes, first aid kits, or other benefits.
Another example is in life insurance, a certain amount of accident insurance is given to the insurance with higher premiums, and so on.
Rebates are prohibited, but insurance companies and marketers are allowed to give small gifts to customers in accordance with business practices
The insurance market is a buyer's market, and the buyer is in the dominant position in the market. Among the many sales industries, insurance is one of the most difficult to sell.
It takes time and emotional investment to nurture customers, and it is natural to thank customers appropriately after the business is completed, and there is really no need to tie the hands and feet of the company and sales staff with excessive rules and regulations.