The Judicial Application Of Internet Gambling Crime

As a typical phenomenon of social history and culture,gambling is almost synchronized with the development of human civilization.China Criminal Law 1979 has stipulated the gambling crime,and during the revision to the Criminal Law in 1997,the act of gambling has been added.And then,the sixth amendments to Criminal Law of PRC have set the casino crimes as a single named crime.And some judicial interpretation has provided on internet gambling crime.All of these formed the rules of regulations of current criminal law on gambling.With the change of the social life style and the development of the science and technology,the internet gambling phenomenon has spread which supported by the network information technology and the forms of gambling are constantly updated.With these,there is controversy between the theory and practice of criminal law on that whether or not affirmed as gambling crime and which imputation should be made.Although there is no difference between internet gambling crime and traditional gambling crime,both of them takes the casual situation as a result,and they all take the property to engage in gambling.However,due to the huge differences in the carrier,space and form of expression,there is a fierce controversy around the cognizance in cyberspace gambling of judicial departments.Without the clear regulations targeted the internet gambling in the existing criminal law and the relevant judicial interpretation,there is a fierce controversy on the nature of gambling activities that supported by We Chat group red envelope,even within the department of criminal investigation department,the public prosecution department and the trial department,they hold the different opinion.But in theory,there is still objection on that whether the gambling which featured no direct victim should be identified as a crime.Based on this,this article start with a We Chat group red envelope gambling case,and discuss its controversy.Then this article try to make the conviction standard clear by compared with the traditional gambling crime.On this basis,this article will based on the principle of punishment,and make a deeply thinking on the reasonable and operational standards of victimless crime.This article is divided into three parts,a total of 37953 words.In the first part,choose an internet gambling case from the China Judgments Online,and introduce its facts and cause of action.And then summarize the focus of controversy around the case;points out the difficulties of affirm the internet gambling crime: “how to affirm the gambling crime with the extent of injury”,“the standard of gambling gathering”.At the same time,it reveals the “victimless” characteristic of gambling crime,which lays the foundation for the latter.The second part is the legal analysis of the above point.As the focus of this article,this part is divided into three levels.Firstly,according to the features of cyberspace activities,detailed analysis the meaning of article 303 rd of Criminal Law,especial the words of “gambling gathering”,“casino crime” and “for profit”,and discuss the features of the way of gambling,and then come to conclusion: the internet gambling activities are the temporary groups activities in cyberspace,people who join it both seeks the profit but also accept the lose;but set up a gambling house in cyberspace is the behavior to create and run an internet casino,which take the casino as core and make money by it.Secondly,it points out the article 303 rd includes the meet of “conviction in element” by the degree of harm to the social administration,which can be also called the criticality of the law being subjected to reality.And then,it aimed at the elements of the behavior of gambling gathering and casino crime to discuss the specific rules of living on gambling,bet,participation times and gambling numbers.On this basis,this article argues that,through the evaluation of the extent of injury in internet gambling,in view of the difficulty to affirm the “living on gambling”,it would be a large range if all the “gambling gathering” convicted.So it is suggested that the determination of the internet gambling crime take the casino behavior as the main punishment.Finally,discuss the cognizance standards of accomplice in cyberspace,and the general rules of behavior for casino.It shows that gambling in the cyberspace usually presented as joint crime,and the principal should be punished but for the accessory can be considered guilty.Make the criminal responsibilities and other legal responsibilities of the network operators,technical support departments clearly,to prevent them from criminal sanctions.The third part is the conclusion and thinking.First,it responds to the focus of controversy in the case.According to the comprehensive analysis and characteristics of elements,that the behavior of the defendant in this case should be characterized as gambling,and it belongs to the gravity of the circumstances.Secondly,discuss the victimless dangerous act based on the conclusion of this case.It points out that there are indirect victims in the so-called “victimless” behavior.Then,it explains the necessity and specific conditions of convicting the victimless dangerous behavior from the national emotion,religious factors,criminal law and social comprehensive control.