In life, we often hear about gambling, but how can it constitute a gambling crime in law?
First of all, the Criminal Code of 1979 provided for the crime of gambling, until Article 18, paragraph 2 of the Criminal Law Amendment (VI) separated the act of "opening a casino" from the crime of gambling and established an independent crime, that is, the crime of opening a casino.
Paragraph 1 of Article 303 of the Criminal Law stipulates the crime of gambling, which reads as follows: "Whoever gathers a crowd to gamble or takes gambling as a business for the purpose of making a profit shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also be fined." ”
The difference between the crime of gambling and ordinary illegal acts lies in whether the perpetrator subjectively aimed at making profits, and objectively whether he or she carried out the act of gathering a crowd to gamble and gambling as a business. Perpetrators who participate in gambling multiple times, but do not make a living from gambling, or provide casinos or gambling equipment, but do not profit from them, cannot be found guilty of gambling.
Secondly, Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases of Gambling stipulates that a person who gathers a crowd to gamble for the purpose of making a profit and is suspected of any of the following circumstances shall be prosecuted:
1. Organize more than three people to gamble, and the cumulative amount of profits is more than 5,000 yuan;
2. Organize gambling for more than three people, with a total amount of more than 50,000 yuan;
3. Organize more than three people to gamble, and the total number of gambling participants is more than 20;
4. Organize more than 10 Chinese citizens to gamble abroad, and collect kickbacks and referral fees;
5. Other situations where criminal responsibility should be pursued for gathering people to gamble. Where gambling is used for the purpose of making profits, a case shall be filed for prosecution.
Since gathering a crowd to gamble is an offense, in practice, as long as the perpetrator carries out the act of gathering a crowd to gamble for the purpose of profit, it is completed. Those who engage in gambling as a profession are regular offenders, and there is only the question of whether it constitutes a crime or not, and there is no attempt to commit a crime. Where the perpetrator commits the crime of gambling and at the same time commits other crimes for gambling, the punishment for the multiple crimes shall be combined.
Finally, to sum up, the crime of gambling in the form of "gathering crowds to gamble" should meet the following specific elements of the crime:
1. For the purpose of making profits. It is not necessary to make an actual profit.
2. The place is not stable. Venues may be organized temporarily, and temporary changes to venues do not affect the normal conduct of gambling behavior.
3. The specificity of the gambling personnel. Gambling participants are usually people who have gambling vices and have specific connections with the organizers, and unspecified people in society are usually not allowed to participate in crowd gambling.
4. It is hidden. Both the organizers and those involved in crowd gambling are still wary of the law, and in order to evade crackdowns, the act of crowd gambling is carried out in secret organizations, and is generally carried out in places that are abandoned, idle, and closed and easy to escape.
5. Closed. Under normal circumstances, the organizers of the "crowd gambling" behavior are specific personnel who have agreed in advance for the gambling participants, and other personnel cannot join at will.
6. Temporary. The act of "gathering crowds to gamble" is usually a temporary organization of specific gambling participants to be carried out in a selected place and place in advance, and the gambling behavior lasts for a short period of time (or three or two hours or half a day and a half), and the gambling participants who participate in the gambling will be disbanded after the gambling behavior is completed. It is uncertain whether gambling will be organized again, the same people will be involved in gambling, and whether gambling will be carried out.
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