The author of this article: He Shunqi Xu Wei
Keywords:
Open a casino;transgressions;Lenient punishment.
Referee Rules:
The defendant's suspected act of opening a casino occurred before the implementation of the amendment to the Criminal Law, and the state of criminal conduct continued after the implementation of the amendment, and is a continuing offense, and the revised Criminal Law shall be applied, but a lighter punishment may be given as appropriate.
Brief facts of the case
In July 2018, defendant Liu used the WeChat platform to use a mobile game software to form a gambling WeChat group chat and convene gambling personnel to gamble. At the end of each game, defendant Liu drew RMB 3-4 from the big winner.
In January 2020, the other defendants joined the game club founded by Liu and became Liu's subordinate partners, and Liu shared the room fee according to the return ratio set by the system, and also drew the room fee from the subordinate partner according to the number of big winners, so as to make a profit.
At the time of the case in May 2021, the defendant Liu made illegal profits of about 170,000 yuan.
The prosecution believes that the defendant Liu's use of the Internet to open a casino for the purpose of profit has violated the provisions of Article 303, Paragraph 2 of the Criminal Law of the People's Republic of China, as amended by the "Amendment (11) to the Criminal Law of the People's Republic of China" on March 1, 2021.
Defendant Liu's defender submitted that part of Liu's conduct of opening a casino occurred before the implementation of Amendment (11) to the Criminal Law, and some occurred after the implementation of the amendment, and since Amendment (11) to the Criminal Law increased the sentence for the crime of opening a casino, according to the principle of leniency and leniency, the date of implementation of Amendment (11) to the Criminal Law, that is, March 1, 2021, should be used as the node, and the acts of opening casinos before and after the implementation of Amendment (11) to the Criminal Law should be applied before and after the implementation of Amendment (11) to the Criminal Law After that, the provisions of the Criminal Code on the crime of opening a casino.
The court held that the defendant Liu's act of opening a casino was subject to the criminal law after the implementation of the "Amendment (11) to the Criminal Law of the People's Republic of China".However, a lighter punishment may be given as appropriate
Rule analysis
In recent years, in order to achieve the overall goal of "improving the socialist legal system with Chinese characteristics" and to adapt to the development of the market and the times, the legislature has stepped up and accelerated the work of revising laws. The Criminal Code is no exception, and with the development of society, its revision has also kept up with the pace of the times. In this case, it is not uncommon for the perpetrator's conduct to begin before the new criminal law takes effect and ends after the new law takes effect. This criminal process covers the form of crime during the alternation of the old and new criminal laws, and is theoretically referred to as "trans-criminal offenses" [1]. Crimes that straddle between the old and new criminal laws are mainly continuing and serial offenders.
There are several different views in the academic circles on the application of the criminal law of "trans-legal offenders": (1) cross-criminal offenders involve the application of the old and new criminal laws, and the principle of treating the old with the same as the lesser should be adopted. (2) The act of transgressing the law begins with the validity period of the old criminal law and ends after the new criminal law takes effect. Judging from the phased nature of the act, the old criminal law and the new criminal law should generally be applied separately. (3) The new criminal law shall be applied to all offenders who cross the law. [2]
There are many schools of thought in the academic circles, but in judicial practice, there is a conclusion on the handling of "trans-legal offenders". In 1998, the Supreme People's Procuratorate made a provision on the specific application of the Criminal Law to the issue of continuing crimes, continuous crimes, and other crimes of the same type that have crossed the effective date of the revised Criminal Law: "For continuous crimes that began before September 30, 1997 and continued to October 1, 1997, or for multiple crimes of the same type committed before or after October 1, 1997, the charges, constituent elements, Where there is no change in the circumstances or the legally-prescribed sentence, the revised Criminal Law shall be applied and prosecuted together;Where the charges, constituent elements, circumstances, and statutory punishment have changed, alsoThe revised Penal Code should be appliedand prosecute them together. So far, it has been determined that the rule of "all offenders who cross the law should be renewed" has been adopted, and the judicial interpretation is still in effect. According to Article 89 of the Criminal Law, "the time limit for prosecution shall be calculated from the date of the crime;Criminal actsThere is continuity or continuitystate,From the day when the criminal act endedfrom the beginning. The treatment of "transgressions" is also essentially based on the criminal law in force at the date of the end of the offence. Therefore, from the perspective of system interpretation, the handling of "trans-legal offenders" also follows the requirement of maintaining the coordination and unity of the provisions of the criminal law.
However, due to the fact that China's criminal law adopts the principle of "starting with the old and treating it lightly" on the issue of the statute of limitations in the general provisions, that is, in principle, the old law at the time of the act is applied, but if the application of the new law is beneficial to the perpetrator, the new law must be applied. Therefore, although the new treatment of "offenders who cross the law" is an exception to the principle of "treating offenders who have crossed the law from the old with leniency", under the influence of the general principle of "treating offenders from the old with light", there is also an exception to this provision, namely, ".ButWhere the revised Criminal Law is stricter than the constituent elements and circumstances provided for in the original Criminal Law, or where the legally-prescribed punishment is heavier, it shall be submitted when initiating a public prosecutionBe lenient as appropriateHandling of comments. In other words, although a new approach is adopted for the handling of "transgressions", if the new law is stricter than the old lawIt should be dealt with leniently, as appropriate
In short, this provision proceeds from the criminal act itself, comprehensively regulates its continuous or continuing state, satisfies the criminal law's goal of cracking down on crime, and also considers the impact of the criminal law on the principle of retroactivity from the old to the light, and gives the perpetrator a lighter treatment under the circumstances that the new law is stricter than the old law. This provision is the result of the penal law's insistence on the principle of legality of crimes.
Defense Strategy
In recent years, the Criminal Code has been amended more frequently, and new amendments to the Criminal Code are promulgated every three years or so, so it is easy for crimes that have a continuing and continuing state to become "transgressive offenders". Opening a casino is generally a long-term and ongoing act, and the offence of opening a casino was amended in the Criminal Law Amendment (11) which came into effect on 1 March 2021, raising the penalty level. Therefore, in recent years, there is a high probability that the problem of "transgressive offenders" will arise in the cases of opening casinos. Defenders may adopt the special principle of handling "cross-legal offenders" on the basis of the facts and circumstances, and strive for room for lighter punishment for the parties.
Relevant legal provisions
Criminal Law of the People's Republic of China (2017 Amendment) (as amended).
Article 303 [Crime of Gambling] Whoever gathers a crowd to gamble or uses gambling as a business for the purpose of making a profit shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release, and shall also be fined.
Whoever opens a casino shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release, and shall also be fined;where the circumstances are serious, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given.
Criminal Law of the People's Republic of China (Revised in 2020).
Article 12: [Retroactivity of Criminal Law]After the founding of the People's Republic of China, if the laws at the time do not consider acts before the implementation of this Law to be crimes, the laws at that time shall apply;If the law at the time considers it to be a crime, and it should be prosecuted in accordance with the provisions of Chapter IV, Section 8 of the General Provisions of this Law, criminal responsibility shall be pursued in accordance with the law at that time, but if it is not considered a crime by this Law or the punishment is relatively light, this Law shall apply.
Judgments that have already been rendered in accordance with the laws at that time before the implementation of this Law shall continue to be valid.
Article 89: [Calculation and Interruption of Time Limits for Prosecution]The time limits for prosecution are calculated from the date on which the crime was committed;Where the criminal conduct is continuous or continuous, it is calculated from the date on which the criminal conduct ends.
Article 303 [Crime of Gambling] Whoever gathers a crowd to gamble or uses gambling as a business for the purpose of making a profit shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release, and shall also be fined.
Whoever opens a casino shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or controlled release, and shall also be fined;where the circumstances are serious, a sentence of between 5 and 10 years imprisonment and a concurrent fine is to be given.
Crime of Organizing Participation in Gambling Outside the Country (Mainland)] Where citizens of the People's Republic of China are organized to participate in gambling outside the country (territory), and the amount is huge or there are other serious circumstances, punishment is to be given in accordance with the provisions of the preceding paragraph.
Reply of the Supreme People's Procuratorate on the Specific Application of the Criminal Law to Continuing Crimes, Continuous Crimes, and Other Crimes of the Same Kind that Spans the Effective Date of the Revised Criminal Law (Gao Jian Fa Shi Zi 1998 No. 6).
2. Where the crime commits before September 30, 1997 and continues to date after October 1, 1997, or where several crimes of the same type are committed before or after October 1, 1997, and there is no change in the charges, constituent elements, circumstances, and statutory punishment, the revised Criminal Law shall be applied and prosecuted together;Where the crime, constituent elements, circumstances, or legally-prescribed punishment have changed, the revised Criminal Law shall also be applied and prosecuted togetherHowever, where the constituent elements and circumstances of the revised Criminal Law are stricter than those provided for in the original Criminal Law, or where the legally-prescribed punishment is heavier, a discretionary leniency opinion shall be submitted when initiating a public prosecution.
The court held that
The following are the opinions expressed by the People's Court of Chaling County, Hunan Province in the judgment:
The Criminal Law of the People's Republic of China Amendment (11) raised the sentence for the crime of opening a casino, and the defendants in this case, Liu, Chen, and Tan, opened a casino before the implementation of the Criminal Law Amendment (11) of the People's Republic of China, and the criminal conduct continued until after the implementation of the Amendment (11) to the Criminal Law of the People's Republic of China, and was a continuing offense, and before the implementation of the Criminal Law Amendment (11), According to the "Reply of the Supreme People's Procuratorate on How to Specifically Apply the Criminal Law to Continuing Crimes, Continuous Crimes, and Other Crimes of the Same Kind Beyond the Effective Date of the Revised Criminal Law", the provisions of the Revised Criminal Law should be prosecuted for continuous, continuing crimes, and multiple crimes of the same type before and after the effective date of the revised Criminal Law, so the "Amendment (11) to the Criminal Law of the People's Republic of China" applies to the defendants Liu, Chen, and Tan Moufang's acts of opening casinos Criminal law after the imposition of the penal code, but with the possibility of lighter punishment as appropriate.
Case Study**
Criminal Verdict of First Instance for the Crime of Opening a Casino by Liu, Chen Mouhong et al. (2021) Xiang 0224 Xingchu No. 238.
Similar cases
In the process of searching for similar cases, the author found similar cases for readers' reference:
Criminal Verdict of First Instance for the Crime of Opening a Casino by Shi (2021) Su 0413 Xingchu No. 410.
After investigation, the defendant Shi's conduct of opening a casino from January to April 2021 was a continuous act, and according to the Supreme People's Procuratorate's "Reply on How to Specifically Apply the Criminal Law to Continuing Crimes, Continuous Crimes, and Other Crimes of the Same Kind Beyond the Effective Date of the Revised Criminal Law", the amended Criminal Law should be applied, so this court will not accept this part of the defense opinions put forward by the defender, but may give a lighter punishment as appropriate at sentencing.
China is not a case law country, and the cases cited in this article are not Guiding Cases, which are not binding on the trial and adjudication of similar cases, and at the same time, the details of each case in judicial practice are very different, and the views of this article cannot be directly cited
Notes and Citations:
1] Liu Fang, "Research on Several Issues Concerning the Application of Criminal Law for Cross-Border Offenders", China Law Science, No. 2, 2010.
2] Liu Xianquan, "An Exploration of Issues Related to Retroactivity in China's Criminal Law", Politics and Law, No. 3, 2007.