The Spring Festival holiday is approaching, and migrant workers who have worked hard for a year have returned to their hometowns to spend the festival with their relatives and friends. After tea and dinner, it is inevitable that there will be a few "eggs" and a few rounds of mahjong to help the fun. Entertainment between relatives and friends, if you bring a little "small lottery" and have a little "small win or loss", is it gambling? A few days ago, the Beijing Second Intermediate People's Court disclosed a relevant case to explain whether the above-mentioned behavior is gambling.
Four friends played cards during the Spring Festival and were administratively detained for 10 days for gambling
The facts of the case show that He, Liu, Chen, and Wang have been friends for many years, and during the Spring Festival in 2023, the four of them met to play mahjong in a private room in a billiard hall. On the same day, the police of the public security bureau of a district in Beijing went to the scene to inspect after receiving reports from the masses, and found that there were four-color chips on the card table, and He and other four people each held a number of chips.
According to the Beijing No. 2 Intermediate People's Court, the police summoned the four people for investigation on suspicion of gambling. After obtaining the WeChat chat records of the four people and the confessions of the four people, the public security organs ascertained that He and the other four agreed to gamble by playing mahjong. In order to avoid using cash, the four agreed to use chips to calculate the amount and then transfer money through WeChat. Each person starts with 2 red, 8 white, and 10 black, with red at $500, white at $100, and black at $20. The four agreed to settle the win or loss by subtracting the amount of chips left in the hand at the end of the hand by the initial chip amount, and finally transferring the settled money to the winner.
After investigation, in accordance with Article 70 of the "Law of the People's Republic of China on Public Security Administration Punishments", the public security organs decided to give He X and four others an administrative punishment of 10 days of administrative detention and a fine of 500 yuan.
He X believed that he did not have the subjective intent to gamble, and that the chips used at the scene were only entertainment tools used to prove whether he won or lost, and that the administrative punishment decision made by the public security organ was unclear in its determination of facts and erroneous in the application of law, so he sued and requested that the punishment decision be revoked.
After trial, the court held that Article 70 of the "Public Security Administration Punishment Law of the People's Republic of China" stipulates that "for the purpose of making profits, providing conditions for gambling, or participating in gambling with a large amount of money, shall be detained for not more than five days or fined not more than 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 this case, although He and the other four did not directly use cash to gamble, they obtained the WeChat chat records of the four through the public security bureau of a certain district and the confessions of the four people, which is sufficient to determine that the four of them agreed to pay for gambling funds by settling chips. The chips seized by the public security organs at the scene were 2,000 yuan per person according to the calculation method agreed upon by the four people, totaling 8,000 yuan. The conduct of He and the other four has constituted "participating in gambling and gambling with a large amount of money" as provided for in Article 70 of the "Public Security Administration Punishment Law of the People's Republic of China", and should be punished in accordance with law. Based on the evidence in the case and in combination with the circumstances of He's violation, the public security organs determined that the facts were clear, the evidence was conclusive, the law was correctly applied, the procedures were lawful, and the punishment was appropriate. In summary, the court rejected He's claim in accordance with the law.
Judge: Settling gambling by chips is still gambling
Does it constitute gambling to settle bets instead of cash?
According to the judge of the Beijing Second Intermediate People's Court, in order to avoid punishment, many gamblers will choose to use chips to avoid directly using cash to settle gambling funds. However, if the gambling funds are settled by chips, it is still gambling. Article 6 of the Notice of the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Cases of Illegal Gambling stipulates that "if there is no gambling money at the gambling scene, but is replaced by chips or prior agreement on post-delivery, the amount of gambling funds shall be determined after investigation and verification." "Even if the settlement is made by means of "IOU" or "bookkeeping" without using chips, as long as it is verified to be true, it can still be recognized as gambling. Article 2 of the Reply of the Legislative Affairs Bureau of the Ministry of Public Security to the Notice on Issues Concerning the Application of Law in Handling Cases of Illegal Gambling Cases (September 5, 2005) stipulates that "'IOUs' belong to the method of 'prior agreement on post-delivery' as stipulated in Article 6 of the Circular, and the amount contained in the IOUs can be identified as gambling funds after investigation. ”
The above-mentioned judge also pointed out that from the above provisions, it can be seen that as long as the parties involved in gambling have a common agreement in advance, no matter how the gambling funds are settled, it will not affect the characterization of their gambling behavior. In this case, although He and the other four did not use cash to settle the gambling funds at the gambling scene, the four of them made a clear agreement on the value of the chips and the final settlement and payment method of the gambling funds, so the characterization of the behavior of the four of them will not change because the gambling funds were not obtained at the scene.
What is the amount of winning or losing that is considered "large gambling money" and "serious circumstances"?
The judge of the Beijing No. 2 Intermediate People's Court explained that in consideration of the differences in the level of economic development in various regions, Article 70 of the Public Security Administration Punishment Law does not make a uniform provision on "relatively large gambling funds", but authorizes the determination of this standard to all localities to formulate local regulations, rules and other normative documents on their own. With regard to the determination of the amount of gambling funds, if it is needless to say that the amount of individual gambling funds can be ascertained, and if it cannot be ascertained, the total value of the gambling property divided by the average number of gambling participants shall be calculated.
According to the judge of the Beijing Second Intermediate People's Court, taking Beijing as an example, the standards of "relatively large gambling funds" and "serious circumstances" are stipulated by the following two normative documents: the "Detailed Standards for the Implementation of the Public Security Administration Punishment Law in Beijing (Trial)" stipulates that individuals who gamble between 300 yuan and 500 yuan shall be fined less than 500 yuan; 500 to 1,500 RMB, detention for up to five days; 1,500 yuan or more, they are to be detained for between 10 and 15 days. The Beijing Municipal Public Security Administration Administrative Punishment Discretionary Standards (2018 Revised Edition) stipulates that the following situations are "serious" circumstances for gambling:Participating in gambling with an individual gambling capital of more than 1,500 yuan, or jointly participating in gambling property totaling more than 6,000 yuan.
The judge of the Beijing No. 2 Intermediate People's Court said that from the above two provisions, it can be seen that in Beijing, if an individual gambles more than 300 yuan, it can constitute "relatively large gambling funds" as stipulated in Article 70 of the Public Security Administration Punishment Law, and if an individual gambles more than 1,500 yuan or a total gambling capital of more than 6,000 yuan, it is a "serious circumstance". Specific to this case, He and the other four people each invested 2,000 yuan in gambling, totaling 8,000 yuan, which is obviously a "serious circumstance". Therefore, the public security organs' decision to impose administrative detention on the four of them for 10 days and a fine of 500 yuan in accordance with the law is appropriate in terms of sentencing.
What are the illegal consequences of gambling?
According to the judge of the Beijing Second Intermediate People's Court, the "Law of the People's Republic of China on Public Security Administration Punishments" and the "Criminal Law of the People's Republic of China" have made clear provisions on the illegal consequences of gambling. Depending on the severity of the circumstances, in addition to the administrative or criminal liability stipulated in the above-mentioned laws, some professions, such as lawyers and professional doctors, will also face consequences such as cancellation of qualifications and industry bans. Party members, cadres and public employees who participate in gambling will also be punished by party and government discipline or even expelled from public office.
The judge recommended that entertainment should also be in accordance with the law
The judge of the Beijing No. 2 Intermediate People's Court reminded that small gambling is not pleasant, and big gambling will hurt you. During the Spring Festival, playing cards and mahjong between relatives and friends, moderate entertainment can enhance the relationship, but we must stick to the bottom line of the law.
The judge of the Second Intermediate People's Court in Beijing suggested that entertainment should also follow the law. Relatives and friends gather to play cards for entertainment and bonding, not to win money. The method of calculating wins and losses can be replaced with doing housework, etc., and try to avoid calculating in the form of money. At the same time, do not crowd around when encountering gambling activities. In judicial practice, it has been found that a considerable number of people involved in gambling were watching the gambling scene with the mentality of watching the excitement at the beginning, and then unknowingly participated in it, and were finally investigated and dealt with by the public security organs. Gentlemen do not stand under dangerous walls, and should stay away from the scene of gambling activities as soon as possible, and do not stay on the lookers.
In addition, the above-mentioned judge also pointed out that there is no trap for online gambling. With the development of information network and mobile payment technology, in recent years, online gambling using "red envelopes", live quizzes, online betting and other methods has begun to emerge. This new form of gambling often entices participants with small profits, and then unknowingly traps participants. For this new type of online gambling with strong confusion, we should be fully vigilant and do not fall into the trap.
According to The Paper.