Concept clarification | Gambling funds, illegal gains, and fines in gambling crimes

Author: Lawyer Shao Shiwei

In cases of opening casinos and gambling, in addition to the prison term, the parties and their families are most concerned about how the parties' property will be handled by the court?

If the court finally determines that the defendant's gambling funds, illegal income, fines, etc. are extremely large, this will be a heavy financial burden for the defendant and his family. Even in judicial practice, there are many cases where the case-handling units enforce the legal property under the name of the parties and the common property of the couple.

This article will clarify and define the concepts of gambling funds, illegal income and fines.

01 The concept and disposal of gambling funds and illegal proceeds

The definition of gambling funds is mainly stipulated in the following legal provisions (the definitions of gambling funds and illegal proceeds in the 2010 "Opinions on Several Issues Concerning the Application of Laws in Handling Online Gambling Crime Cases" and the 2020 "Opinions on Several Issues Concerning the Handling of Cross-Border Gambling Crime Cases" are the same as the following 2005 judicial interpretation, so they are not listed again).

Gambling funds include: money and property used as bets, money and property exchanged for chips, and money and property won through gambling. In offline gambling venues, gambling funds are determined according to the money and property seized on the spot; in online gambling, the amount of gambling funds can be determined according to the number of points bet or won on the computer network multiplied by the actual amount represented by each point

Regarding illegal proceeds, relevant laws and regulations in my country do not have a clear definition of this.

As for the disposal of gambling funds and illegal proceeds, the law stipulates that gambling funds should be recovered and illegal proceeds should be confiscated.

The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Gambling (Fa Shi [2005] No. 3)

Article 8 Money and property used as stakes, money and property exchanged for chips, and money and property won through gambling in gambling crimes are considered gambling funds. If gambling crimes are committed through computer networks, the amount of gambling funds can be determined by multiplying the number of points bet or won on the computer network by the actual amount represented by each point.

Gambling funds shall be recovered according to law; gambling equipment, illegal proceeds from gambling, and funds, vehicles, communication tools, etc. specifically used for gambling owned by gambling criminals shall be confiscated according to law.

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 Using Gambling Machines to Set Up Casinos (Public Communication No. [2014] 17)

V. Determination of Gambling Funds

The gambling funds referred to in these opinions include:

(i) Money and property used for gambling seized on the spot;

(ii) The actual amount represented by tokens, securities, gambling points, etc.;

(iii) The actual amount represented by the points betted or won on the gambling machines.

The above legal provisions on the handling methods of "recovery" and "confiscation" seem to be semantically only handling the money and property actually seized by the case-handling unit, but this is not the case in criminal cases. The judgment is generally expressed as: "The defendant's gambling funds and illegal gains of xx yuan that have been recovered shall be confiscated, and the gambling funds of xx yuan will continue to be recovered" "The illegal gains in the case shall be confiscated, and the insufficient part will continue to be recovered or ordered to be returned; the gambling funds seized in the case shall be confiscated" From this we can see that if the court finally determines that the defendant's gambling funds and illegal gains involved in the case are higher than what has been actually seized, the actual seized part will be confiscated, and the remaining part will continue to be recovered. 02 Collection and recovery of gambling funds In criminal cases, gambling funds should be recovered. In public security cases, gambling funds should be collected. This is a different statement of the treatment of gambling funds in criminal cases and administrative cases.

Public Security Administration Punishment Law of the People's Republic of China (Revised in 2012)

Article 11 Contraband such as drugs, obscene materials, gambling tools, gambling funds, tools for smoking and injecting drugs, and tools directly used to commit acts that violate public security management shall be confiscated and handled in accordance with regulations.

03 Scope of illegal proceeds

As mentioned above, the legal provisions clearly define the concept of gambling funds, but what exactly is "illegal proceeds" and what does it include? There is no clear provision.

Just because there is no clear scope definition, we can see that in judicial practice, the defendant's "illegal gains" are identified in a broad sense, that is, the judicial authorities will determine that any property gains directly or indirectly obtained by the defendant through criminal acts can be identified as "illegal gains".

Directly obtained gains, such as providing gambling websites to others for gambling, participating in profit sharing of gambling websites, providing technical support for gambling websites, advertising, member development, fund payment and settlement, acting as an agent and developing players or offline, etc.;

Indirectly obtained gains, such as using the above-mentioned directly obtained gains to purchase RVs or invest in stocks, and converting them into other properties, property gains, and interest.

04 Fine

Article 303 of the Criminal Law of the People's Republic of my country stipulates that both the crime of opening a casino and the crime of gambling shall be subject to a fine, but there is no upper limit for the amount of the fine.

According to Article 52 of the Criminal Law, the amount of the fine shall be determined according to the circumstances of the crime. Therefore, in practice, the amount of the fine is determined by the court at its discretion after comprehensive determination based on the specific case (such as the gambling funds involved, illegal income, social influence, the number of agents and members developed, etc.) and relevant sentencing circumstances (such as surrender, confession, confession of guilt, etc.).

How to understand that there is no upper limit for the fine? For example, in this case, the defendant was sentenced to a fine of 10 million yuan.

05 Conclusion

This article clarifies the concepts of gambling funds, illegal income and fines in gambling crime cases.

In subsequent articles, we will continue to discuss the judicial identification of gambling funds and illegal income. For example, whether the illegal income should be deducted from the cost of crime, how to defend the amount related to gambling funds, etc.

For defense lawyers, this is of great significance not only to the conviction and sentencing of the parties themselves, but also to the amount of property penalties that the court may impose.