Judicial Determination Of Gambling Behavior In Organizing WeChat Red Packets

Based on the provisions of Article 303 of the current Criminal Law of China,it will constitute a crime to gamble for profit,to gather people to gamble and to open a casino.But the Internet industry has been upgrading rapidly,which has far exceeded all the economic forms in the past.On the side of regulators,despite the great efforts made,the legislative procedure is complicated and time-consuming,making the lag of law more prominent in the era of "Internet +".Organizing Weixin red envelope gambling is a new type of popular gambling crime.The current "Criminal Law" Article 303 and relevant judicial interpretations do not define the behavior of organizing Weixin red envelope gambling.Therefore,there is no uniform quantitative standard for the charges of organizing Weixin red envelope gambling in judicial practice.Different courts not only impose gambling crimes,but also impose the crime of setting up casinos.This not only confuses the judicial personnel in the process of enforcing the law,but also produces the situation of different judgments in the same case,affecting the law.The unity of applicability and the basic principle of fairness and impartiality are all equal before the law.Therefore,this article is devoted to the study of this problem.Apart from the introduction and conclusion,this article is divided into three parts: the main contents are as follows:The first part mainly defines the concept of gambling and WeChat red packets gambling.The essence of gambling is game behavior as a means of gambling.So thepopular "fishing" machine,Wechat red envelope guessing points,size,etc.are gambling in the form of games,is a new form of gambling.There are some defects in the legislation of the crime of gambling,for example,the specific act of the crime of opening a casino is not clear,and there is no provision for the peripheral crime of gambling,so when a new type of gambling crime appears in social practice,there will be controversy about its characterization,so there will be controversy on the legal application of organizing Weixin red envelope gambling.The second part mainly cognizes and analyzes the nature of organizing Weixin red envelope gambling under the basic theory of gambling crime.The difference between the crime of setting up a casino and the crime of gambling lies in the different emphasis of its behavior.The crime of setting up a casino lays stress on the control of the operator over the casino,the rules of gambling and the internal personnel,while the gambling of the crowd lays stress on the convening and aggregation of the behavior.In Weixin group,based on the program settings of Weixin,the group leader has absolute control over Weixin group,and can withdraw or invite others at will.Therefore,in the crime of organizing Weixin red envelope gambling,the main difference between the crime of gathering gambling and the crime of setting up a casino lies in the group owner's control over the internal members and the rules of gambling.Therefore,in the crime of organizing Weixin red envelope gambling,the division of labor between the actors is clear,and there is a clear dependence relationship between the actors.Other actors can only comply with the behavior,so this behavior is consistent with the constitution of casino crime.On the contrary,if there are fewer members or no obvious affiliation and the rules of gambling are agreed by all,such behavior conforms to the constitution of gambling crime.The third part mainly analyzes the problems of electronic data forensics and preservation during the investigation of Weixin red envelope gambling cases.Legitimate and valid evidence is the basis of conviction and sentencing in criminal cases,and the main evidence involved in Weixin red envelope gambling crime is stored in the form of electronic data in mobile phones and computers,the characteristics of electronic data determine its evidence collection and preservation isdifferent from traditional evidence,so we should pay attention to electricity in handling Weixin red envelope gambling cases.The validity,completeness and validity of sub-data forensics should be preserved scientifically to avoid errors,damage and loss of electronic data.