The Application Of The Crime Of Illegal Business Operation Should Not Be Expanded

In 2010,the Ministry of Finance formulated the Interim Measures for the Administration of Online Lottery Sales,which legalized online lottery sales.After the lottery hits the net,it drives the increase of lottery sales and promotes the development of lottery industry.At the same time,with the help of the Internet platform to sell lottery tickets,lottery crimes occur frequently,and the number of lottery cases is increasing.In succession since 2015,the Ministry of Finance and other ministries issued notice to stop Internet sales of lottery tickets,the public security organs and other law enforcement agencies established for using the Internet to sell lottery case law enforcement activities,based on the understanding of the law and the applicable range,around the judicial organ for the cases of using the Internet sales of lottery tickets is not the same.Some places do not prosecute or acquittal,but only give administrative penalties,and some places willfully upgrade them to criminal cases for punishment.Usually,these cases will be in accordance with the May 13,2005 "projects" enacted "about deal with gambling" the explanation of the concrete application of law in criminal case of article 6 of the regulation,namely the issue without state approval,sales of lottery tickets,if the case constitutes a crime,to illegal business crime convicted and punished,caused great controversy in the judicial practice.The Regulations on Lottery Management make it clear that lottery is a state-led opportunity voucher approved by the state for sale,with the purpose of raising social funds for public welfare purposes.The issuance and sale of lottery tickets are different from the general profit-making behaviors in the market.The crime of illegal operation in Article 225 of the Criminal Law of China regulates the market profit-making behaviors,which are obviously different from the issuance and sale of lottery tickets.Obviously,the sale of welfare lottery and sports lottery approved by the state through the Internet is only a change in business mode,and online sale of lottery and "illegal operation" cannot be regarded as the same.In addition,article 225 of the Criminal Law constitutes the crime of illegaloperation,which is premised on the violation of state regulations.According to Article96 of the Criminal Law,the subject of enactment stipulated by the state shall not include any organ other than the supreme legislature or executive organ.The Detailed Rules for the Implementation of the Lottery Management Regulations,which came into effect on October 1,2018,list "welfare lottery and sports lottery sold without authorization through the Internet" as "illegal lottery".However,the detailed rules are only departmental regulations formulated by the Ministry of Finance,and the unauthorized use of the Internet by relevant websites to sell lottery tickets still cannot be regarded as a violation of national regulations,and the criminal law still does not establish the crime of illegal operation.