Special Declaration: This article is an original work by Attorney Shao Shiwei. It represents only the personal views of the author and does not constitute legal consultation or legal advice on specific matters. For article reprints, legal consultations, or business exchanges, please add: sswls66
Introduction:
According to Article 303 of the Criminal Law of the People's Republic of China, the crime of opening a casino carries two tiers of sentencing: imprisonment of less than five years, and imprisonment of five to ten years. The crime of gambling has only one tier of sentencing, with a maximum of fixed-term imprisonment of not more than three years. In practice, where it is difficult to distinguish between the two offenses, judicial authorities are more inclined to classify the conduct as the crime of opening a casino. Improper conviction may result in a heavier sentence for a lesser offense.
Author of this article: Attorney Shao Shiwei
Distinction between the Crime of Gambling by Crowd-Gathering and the Crime of Opening a Casino (Offline):
1. Certainty of the Casino.
Except for online gambling, the crime of opening a casino always involves a fixed location. Such premises are generally under the actual control of the perpetrator, organized and managed by specific individuals, open to the public, and used to attract unspecified gamblers.
In the crime of gambling by crowd-gathering, the organizer often temporarily rents random venues, such as bathhouses, certain outdoor locations, or borrowed mahjong/card rooms.
2. Participants.
The participants in the crime of opening a casino are unspecified. Although Article 303 of the Criminal Law does not require "for the purpose of profit" as a constituent element for the crime of opening a casino, the pursuit of profit is inevitably the core motive of those operating the casino. Therefore, to generate profits, perpetrators generally adopt promotional methods (such as recruiting agents and operational staff, placing advertisements, etc.). Individuals involved in the crime of opening a casino typically operate within a strict organizational structure and division of labor.
In the crime of gambling by crowd-gathering, the participants are generally specific, often consisting of relatively familiar friends and relatives.
3. Source of Profits.
Due to the stable organizational structure in the crime of opening a casino, the individuals involved generally do not participate in the gambling itself. Their remuneration is usually derived from providing services to the casino (such as keeping watch, providing tea and water, soliciting gamblers, etc.).
In the crime of gambling by crowd-gathering, the organizer often participates in the gambling activities themselves, profiting through collecting venue fees or taking a cut from the pots. The profits are relatively small. Such profit-making is generally one-off, and the organizer lacks the business operation intent present in the crime of opening a casino.
4. Circulation of Gambling Funds.
The flow of gambling funds in the crime of opening a casino exhibits indirect characteristics. This is manifested by the operators and managers of the casino centrally collecting gambling funds and cashing them out in a concentrated manner by exchanging chips with gamblers. The amount of gambling funds is often very large.
In the crime of gambling by crowd-gathering, gambling funds generally circulate directly among the gamblers, and the amounts involved are relatively small.
5. Timing Arrangements.
The operating hours of a casino in the crime of opening a casino are relatively stable, without the need to temporarily notify gamblers of the gambling schedule.
In the crime of gambling by crowd-gathering, there is often a temporary characteristic. After the organizer and gamblers temporarily agree on the venue and time, they randomly select a location to conduct gambling.
