Reading guide:As the saying goes: "Small gambling is pleasant, big gambling hurts the body", in our country, it is illegal to gather people to gamble, and the gambling funds reach beyond the legal provisions. In recent years, with the popularization of the Internet, more and more people use the Internet to work and contact friends. Seeing this opportunity, criminals opened casinos on the Internet for gamblers to gamble. SoHow to distinguish gambling offences from general gambling behaviorsHow to punish if you are caught in online gambling? Can I go to jail for gambling online? How to determine the amount of gambling funds for gambling crimesCan I get my gambling money back?
1. Gambling crimes and general gambling behaviorsHow to tell the difference
The main difference between the crime of gambling and the illegal act of gambling is whether the perpetrator subjectively aims to make a profit, and objectively whether he has the conduct of gathering a crowd to gamble, opening a casino, or making gambling a regular business. Specifically, gambling crimes can be distinguished from gambling violations from the following aspects:
1. The motive and purpose of participating in gambling. The crime of gambling requires that the perpetrator subjectively acted with direct intent and had the purpose of obtaining money. If the perpetrator is not for profit, but only for entertainment, to kill boredom, to connect with feelings, etc., the crime of gambling cannot be established. However, it should be noted that as long as the perpetrator has the purpose of obtaining money, this crime can be established, and whether or not the money is actually obtained does not affect the composition of this crime.
2. The amount of gambling involved and the number of times of gambling. Some relatives, friends, and neighbors occasionally gamble with each other, but the wins and losses are not big; Some often gamble, but the amount of gambling involved is very small, and the gambling participants do not use the gambling proceeds as the main source of their livelihood or squandering. Depending on the circumstances, administrative punishments such as public security punishments and re-education through labor may be given, but it is not appropriate to find it a crime.
3. Whether the perpetrator is a gambling leader, a gambling stick, a casino owner, or an ordinary gambling public. Gambling head refers to a person who gathers a crowd to gamble, that is, to provide casinos and gambling equipment for gambling, organize and attract others to participate in gambling, and take a profit from it. The gambler may or may not be involved in gambling, and it may be one person or more than one person. Gamblers are people who take gambling as their regular business, that is, they use the proceeds of gambling as their main living or squandering. Some gamblers have no proper occupation and specialize in gambling; Some are unemployed, mainly engaged in gambling; Some have legitimate occupations, but they take gambling as a part-time job, and the amount of gambling wins and losses greatly exceeds the amount of their legitimate income. Casino owners refer to those who open casinos, that is, for the purpose of making profits, providing places for gambling, setting up gambling methods, providing gambling equipment, chips, funds, and other acts of organizing gambling. These three types of persons should be investigated for criminal responsibility for the crime of gambling, but for ordinary gambling participants, criticism and education may be given, and if the circumstances are serious, public security punishment may also be given according to the circumstances, but criminal responsibility cannot be pursued.
4. The identity of the gambling personnel and the relationship between the gambling participants. If the gambling participants are relatives, friends, colleagues, neighbors, villagers and other acquaintances, or some elderly people, it is generally not appropriate to deal with them as crimes. Unless the amount of gambling involved is very large, frequent gambling gatherings and seriously infringe on social management order and social customs.
Caution to everyone,It is necessary to correctly distinguish between gambling crimes and ordinary gambling behaviors, otherwise it is not even clear whether one's behavior is a crime, and it is easier to be used by people with intentions, so as to embark on the road of crime. The difference between gambling crimes and general gambling behaviors is mainly the above four aspects, I hope to help you solve your doubts.
IIHow to punish if you are caught in online gambling?
For the act of gambling on the Internet, it is generally recognized as an illegal act in China. And when it reaches a certain level, then it may constitute the crime of gambling under the Criminal Code. Generally, those who participate in online gambling are detained for up to 5 days, and those who are serious are detained for between 10 and 15 days.
Relevant legal knowledge
Law of the People's Republic of China on Public Security Administration Penalties
Article 70: Where conditions are provided for gambling for the purpose of profit, or where the amount of money involved in gambling is relatively large, detention for up to 5 days or a fine of up to 500 RMB is to be given; where the circumstances are serious, they are to be detained for between 10 and 15 days and fined between 500 and 3,000 RMB.
IIICan I go to jail for gambling online?
According to the relevant laws of our country, if you participate in gambling online, if it is light, the participant may be detained and fined by the public security. In serious cases, participants may also commit gambling crimes, be criminally detained, and then sentenced to prison.
Relevant legal knowledge
Law of the People's Republic of China on Public Security Administration Penalties
Article 70: Where conditions are provided for gambling for the purpose of profit, or where the amount of money involved in gambling is relatively large, detention of up to 5 days or a fine of up to 500 RMB is to be given; where the circumstances are serious, they are to be detained for between 10 and 15 days and fined between 500 and 3,000 RMB.
Criminal Law of the People's Republic of China
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 up to three years imprisonment, 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.
Supreme People's Court, Supreme People's ProcuratorateInterpretation on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of GamblingLegal Interpretation 2005 No. 3
Article 1: In any of the following circumstances for the purpose of for-profit, it is "gathering crowds to gamble" as provided for in Article 303 of the Criminal Law:
1) Organizing gambling with more than one person, and the cumulative amount of profits from taking a profit reaches more than 10,000 yuan;
2) Organizing gambling with more than one person, and the cumulative amount of gambling funds reaches 10,000 yuan or more;
3) Organizing gambling with more than one person, and the cumulative number of gambling participants reaches one or more people;
4) Organizing citizens of the People's Republic of China or more to go abroad to gamble, and receiving kickbacks and referral fees from them.
Article 2: Establishing gambling on a computer network for the purpose of making profits, or serving as a gambling company and accepting bets, is "opening a casino" as provided for in Article 303 of the Criminal Law.
Article 3: Where citizens of the People's Republic of China gather to gamble or open casinos in surrounding areas outside the territory of our country, with the aim of attracting citizens of the People's Republic of China as the main source of customers, and the crime of gambling is constituted, criminal responsibility may be pursued in accordance with the provisions of the Criminal Law.
Article 4: Clearly knowing that others are committing criminal gambling activities, but providing them with direct assistance such as funds, computer networks, communications, and fee settlement, is to be punished as an accomplice to the crime of gambling.
Article 5: In any of the following circumstances, where gambling crimes are committed, a heavier punishment is to be given in accordance with the provisions of Article 303 of the Criminal Law:
1) Those who have the status of a state functionary;
2) Organizing state employees to gamble abroad;
3) Organizing minors to participate in gambling, or opening casinos to attract minors to participate in gambling.
Article 8: Money and property used for gambling, money and property exchanged for chips, and money and property won through gambling in gambling crimes are gambling funds. Where gambling crimes are committed through computer networks, the amount of gambling funds may be determined by multiplying the number of points wagered or won on the computer network by the amount actually represented by each point.
Gambling funds shall be recovered in accordance with law; Gambling utensils, illegal gambling gains, and funds used exclusively for gambling by gambling criminals, means of transportation, means of communication, and so forth, shall be confiscated in accordance with law.
Article 9: Entertainment activities with a small amount of property to win or lose are not for profit, as well as business activities that only charge normal venue and service fees for providing chess and card rooms and other entertainment venues, are not to be punished as gambling.
Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Cases of Online Gambling Crimes (Gongtong Zi [2010] No. 40).
I. Conviction and sentencing standards for the crime of opening online casinos
In any of the following circumstances, the use of the Internet, mobile communication terminals, and so forth to transmit gambling ** and data, or to organize gambling activities, is an act of "opening a casino" as provided for in paragraph 2 of Criminal Law article 303:
1) Establish gambling ** and accept bets;
2) Establishing gambling** and providing it to others to organize gambling;
3) Acting as a gambling player and accepting bets;
4) Participating in gambling ** profit sharing.
In any of the following circumstances, carrying out the conduct provided for in the preceding paragraph shall be found to be 'serious circumstances' as provided for in paragraph 2 of Criminal Law article 303:
1) The cumulative amount of profits from the tap reaches more than 30,000 yuan;
2) The cumulative amount of gambling funds reaches 300,000 yuan or more;
3) The cumulative number of gambling participants reaches 120 or more;
4) After establishing gambling**, by providing gambling to others, the amount of unlawful gains is 30,000 yuan or more;
5) Participating in gambling ** profit sharing, and the amount of illegal gains is 30,000 yuan or more;
6) Recruiting subordinates for gambling, and having subordinates accept bets;
7) Soliciting minors to participate in online gambling;
8) Other situations where the circumstances are serious.
II. Determination and Punishment of Joint Crimes in Online Casinos
Clearly knowing that it is gambling**, but providing the following services or assistance to them, is a joint crime of the crime of opening a casino, and is punished in accordance with the provisions of paragraph 2 of Article 303 of the Criminal Law:
1) Providing services such as internet access, server hosting, network storage space, communication transmission channels, advertising, membership development, software development, and technical support for gambling**, and collecting service fees of more than 20,000 yuan;
2) Provide funds for payment and settlement services for gambling, collect service fees of 10,000 yuan or more, or help collect gambling funds of 200,000 yuan or more;
3) Placing advertisements related to information such as ** and odds for 10 or more gambling **, or placing a total of 100 or more advertisements for gambling**.
Where the conduct provided for in the preceding paragraph is carried out in quantity or amount 5 times or more of the standards provided for in the preceding paragraph, it shall be found to be "serious circumstances" as provided for in paragraph 2 of Criminal Law article 303.
In any of the following circumstances, where the conduct provided for in the first paragraph of this article is carried out, it shall be found that the perpetrator "clearly knew", except where there is evidence showing that they did not know:
1) After receiving a written notice from the competent administrative organ, the above-mentioned acts are still carried out;
2) Providing services such as internet access, server hosting, network storage space, communication transmission channels, advertising, software development, technical support, and fund payment and settlement for gambling**, and the collection of service fees is obviously abnormal;
3) Intentionally evading the investigation or giving information to the criminal suspect by means such as destroying or modifying data or ledgers during the investigation by law enforcement personnel;
4) Other evidence showing that the perpetrator clearly knew.
If there is a criminal suspect who opened a casino that has not yet been brought into the case, but it does not impact the determination of the facts of the crime of the joint criminal suspect or defendant who has already been brought into the case, the person who has already been brought into the case may be convicted and punished in accordance with law.
IV. How to determine the amount of gambling funds for gambling crimes
Gambling funds are more important in gambling crimes, and cases are generally filed and sentenced according to gambling funds, so how is the gambling funds of gambling crimes generally determined in the judiciary? This is related to the question of within which sentencing range the perpetrator should be punished, so let's find out together.
1. A draw of up to 5,000 constitutes a gambling crime
In any of the following circumstances, where the purpose is for-profit, it is "gathering crowds to gamble" as provided for in article 303 of the Criminal Law: organizing three or more people to gamble, and the cumulative amount of profits from the redge reaches 5,000 yuan or more; Organizing 3 or more people to gamble, and the cumulative amount of gambling funds reaches 50,000 yuan or more; Organizing gambling with 3 or more people, and the cumulative number of gambling participants reaches 20 or more; Organizing 10 or more citizens of the People's Republic of China to gamble abroad, and collecting kickbacks or referral fees from them.
2. **Gambling network is counted as opening a casino
Anyone who establishes gambling on a computer network for the purpose of making profits, or acts as a gambling player and accepts bets, is "opening a casino" as provided for in Article 303 of the Criminal Law.
3. Extraterritorial casinos are forbidden to recruit Chinese
Where Chinese citizens gather to gamble or open casinos in surrounding areas outside the territory of our country, with the aim of attracting Chinese citizens as the main source of customers, and the crime of gambling is constituted, criminal responsibility may be pursued in accordance with the provisions of the Criminal Law.
4. Helping others to gamble is punished as an accomplice
Clearly knowing that others are committing criminal gambling activities, but providing them with direct assistance such as funds, computer networks, communications, and fee settlement, is to be punished as an accomplice to the crime of gambling. State functionaries are given heavier punishments.
In any of the following circumstances, a person who commits a gambling crime shall be given a heavier punishment in accordance with the provisions of Article 303 of the Criminal Law: having the status of a state functionary; organizing state employees to gamble abroad; Organizing minors to participate in gambling, or opening casinos to attract minors to participate in gambling.
5. The online gambling fund is determined according to the amount it represents
Money used as bets, money in exchange for chips, and money won through gambling in gambling crimes are gambling money. Where gambling crimes are committed through computer networks, the amount of gambling funds may be determined by multiplying the number of points wagered or won on the computer network by the amount actually represented by each point. But a small amount of money and entertainment is not considered gambling.
FiveCan I get my gambling money back?
Online gambling and gambling funds will definitely not come back. Gambling is an illegal act, and the money lost from gambling is stolen money, which is confiscated and confiscated into the state treasury in accordance with the law. At the same time, according to the gambling funds and participation, the legal responsibility of the participants should be investigated. In accordance with the provisions of the "Public Security Administration Punishment Law", those who provide conditions for gambling for the purpose of making profits, or participate in gambling with a large amount of money, shall be detained for up to five days or fined up to 500 yuan.
Relevant legal knowledge
1. If the gambling police report is found to be a gambling crime, it will be punished as follows in accordance with the provisions of the criminal law:
1) Gathering crowds to gamble or engaging in gambling for the purpose of making a profit is to be sentenced to up to three years imprisonment, short-term detention or controlled release, and a concurrent fine.
2) 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.
To put it bluntly, after the family members report gambling to the police, if they are identified as gambling by the judicial authorities, they are very likely to be sentenced to prison.
2. Gambling is illegal.
When a family member gambles with enough money to commit a gambling crime, it doesn't mean it's okay. In accordance with the provisions of the "Public Security Administration Punishment Law", those who provide conditions for gambling for the purpose of making profits, or participate in gambling with a relatively large amount of money, shall be detained for up to five days or fined up to 500 yuan; where the circumstances are serious, they are to be detained for between 10 and 15 days and fined between 500 and 3,000 RMB. In other words, if a family member who is arrested by the public security organ after gambling and reports to the police, if it is determined that he only violated the Public Security Administration Punishment Law, he will be fined and detained accordingly. Therefore, if you find that your family members are gambling or addicted to gambling, and you have repeatedly persuaded them to change, it is best to consider carefully before deciding whether to call the police.
Gambling is strictly prohibited in China's law, because gambling will have an adverse impact on social stability, and gathering crowds to gamble constitutes the crime of crowd gambling, and relevant criminal responsibilities need to be investigated. In judicial practice, general gambling behavior only needs to be investigated for relevant administrative punishment responsibility, and the parties can be detained and fined, and the specific punishment should be determined according to the actual situation.
*: Kunming Forest Fire Fighting.