Wen/Fu Xinyi

Abstract: Under the heavy pressure of legislation and justice against gambling crimes, gambling crimes still have a high incidence trend. The case of opening a casino has a high incidence and accounts for a high proportion in gambling crimes. It is derived from the gambling crime and is highly similar to one of the manifestations of the gambling crime - gathering people to gamble in terms of its constitutive elements and manifestations. There is no clear guidance on the distinction between the two in criminal legislation, and the academic community has different views. The lack of unified standards in judicial practice has blurred the boundaries between the two. This article will start from the constitutive elements of mob gambling and casino opening, and combine with specific cases to make a comparative analysis of mob gambling and casino opening, and form a systematic differentiation theory.

Key words: gather people to gamble, open a casino, dominate the constitutive elements

1、 Introduction

Illegal gambling industry has a long history in China, in which gambling is the most typical. The essence of gambling is a lucky act that one party suffers and the other party benefits. This lucky act encourages people's lucky psychology, damages traditional virtues and social good customs, and also adds many unstable factors to the social management order. Most rulers in previous dynasties realized the social harmfulness of gambling. As early as the Warring States Period, gambling was criminalized. During the Warring States Period, Li Xuan called gambling "gambling" and stipulated it as one of the six prohibitions in Miscellaneous Laws - the prohibition of playing. [Yin Jianfeng, Yuan Hui: Research on the Criminal Law Regulation of Gambling Crimes in China, Research Report on the Development of Criminal Rule of Law, 2013-2014 volume.] In the modern criminal law system, gambling crimes first appeared in the 1979 version of the Criminal Law, as stipulated in Article 168, "Whoever gathers people to gamble or engages in gambling for the purpose of making profits shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and may also be fined." It is clear that the crime of gambling has the objective form of "gathering people to gamble" or "engaging in gambling". The 1997 Criminal Law added the expression of "opening casinos" to the crime of gambling. The Criminal Law Amendment (VI), implemented in 2006, separately stipulates the act of "opening a casino" as the crime of opening a casino, which is independent of the crime of gambling. The starting point of sentencing is consistent with the crime of gambling, but the sentencing range of "fixed-term imprisonment of more than three years but less than ten years" is added. The Criminal Law Amendment (XI) implemented in 2021 will adjust the starting point for sentencing the crime of opening casinos from "less than three years" to "less than five years", and add the crime of organizing gambling outside the participating countries (borders).

From the perspective of legislative evolution, China's crackdown on gambling crimes presents a high-pressure trend.

According to the keyword search results in Alpha, the number of gambling crimes and casino opening crimes across the country has shown an overall upward trend in the past decade, with a large increase. Although there has been a decline in the past two years, the overall number is still large. See Chart 1 and Chart 2 for details.

Regionally, gambling crimes are particularly concentrated in Zhejiang Province and Guangdong Province. See Chart 3 and 4 for details.

According to the above chart, it is not difficult to find that under the influence of legislation and justice, gambling crime cases are still frequent. According to the data released at the press conference of "Performing procuratorial functions according to law and severely punishing the crime of opening casinos" held by the Supreme People's Procuratorate on November 29, 2021, as of the month of release, the crime of opening casinos accounted for more than 80% of the gambling crimes transferred by the procuratorial organ for review and prosecution. From January to September 2021, the number of suspects prosecuted by the national procuratorial organs for the crime of opening casinos reached 63238, up 40% year on year, with an obvious upward trend. It can be seen that there is a high incidence of casinos, which account for a high proportion of gambling cases. However, casinos and crowd gambling have a high similarity in objective performance, and there is a certain degree of overlap in the elements of crime. The provisions of the current criminal law of our country on the crime of gambling and the crime of opening a casino are simple charges, and the relevant judicial interpretation does not further explain the distinction between gambling and opening a casino. In judicial practice, there is a lack of unified guiding standards for the distinction between the two.

This article will start from the elements of crime, compare and analyze the establishment of casinos and the gathering of people to gamble, summarize the consistency and difference between the two, and further explore the distinction between the two in theory in combination with specific cases in practice.

2、 An Analysis of the Constitutive Elements of Gathering Gambling and Opening Casino

（1） Elements of criminal subject

The crime subject of gathering people to gamble is consistent with that of opening casinos. Both of them are ordinary criminals. The main body of the criminal system is a natural person who has reached the age of 16 and is capable of criminal responsibility. The current criminal law does not regard the unit as the subject of gambling crimes. There are some views in the academic circle that units can also constitute gambling crimes, and they are more harmful to society than crimes committed by natural persons [Yin Jianfeng and Yuan Hui: Research on the Criminal Law Regulation of Gambling Crimes in China, Research Report on the Development of Criminal Law, 2013-2014]. However, under the current criminal legal system, the subjects of gathering people to gamble and opening casinos do not include units.

It is worth noting that the first paragraph of Article 5 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Gambling [Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Issues Concerning the Specific Application of Law in Handling Criminal Cases of Gambling]

Article 5 Whoever commits the crime of gambling shall be given a heavier punishment in accordance with the provisions of Article 303 of the Criminal Law in any of the following circumstances:

（1） Having the status of a state functionary;

（2） Organizing state functionaries to gamble abroad;

（3） Organizing minors to participate in gambling, or opening casinos to attract minors to participate in gambling.] The provisions on heavier punishment for gambling crimes committed by persons with the status of state functionaries have been made. The provisions of this article refer to the identity of the criminal subject as the circumstances of sentencing rather than the elements of incrimination, and should not be confused with the identity crime.

（2） Subjective elements of crime

Article 303 of the Criminal Law has clearly stipulated that people who gather to gamble need to "make profits" subjectively, but the crime of opening a casino does not explicitly use the subjective element as a prefix. In this regard, some views believe that this is a problem of legislative technology, and it can not be considered that the crime of opening casinos does not have the subjective characteristics of "profit-making" [Xu Dehua: Research on Gambling Issues -- Also on the Amendment to the Criminal Law (VI) to Gambling Crime, Fujian Law Journal, 2007, Issue 3.]. The author believes that this view is not enough to explain the subjective characteristics of the crime of opening casinos need to be for profit. Before the Criminal Law Amendment (VI) newly established the crime of opening casinos as an independent crime, the act of opening casinos was one of the objective manifestations of the crime of gambling; Moreover, it is self-evident that the purpose of making profits is to set up casinos, attract gamblers, hire people to operate casinos and make profits from them.

Gathering people to gamble and opening a casino are consistent in the subjective elements, both of which require the actor to make profits for the purpose, so it is not for the purpose of making profits, and the entertainment activities between relatives and friends that win or lose a small amount of property obviously should not be punished. And the ways of making profits include winning property through gambling and obtaining property through taking profits or collecting fees from gamblers in various names.

（3） Legal interests infringed by crime

The punishable nature of criminal acts lies in their social harmfulness, which comes from the infringement of legal interests by acts. In the theoretical circle, there are endless calls for decriminalization of gambling. For example, people think that gambling crimes are victimless crimes [Ridagushi: Criminal Policy Science, translated by Li Hong, Law Press, 2000 edition, pp. 89-90.], that is, gambling is not harmful to legal interests, and that gambling harms social good practices, It is not punishable by criminal law [Duan Qijun, Huang Yibo: Theory on Non crime of Gambling, Criminal Law Series, 2010, Vol. 1 (total Vol. 21)]. However, under the domestic social customs and criminal law system, decriminalization of gambling is obviously lack of logical basis. At present, our country's criminal legislation adopts a compromise attitude towards the criminalization and decriminalization of gambling behaviors. Gambling behaviors with serious social harm are punished, while gambling behaviors with less social harm are cracked down by administrative means, That is, the "restricted criminalization" advocated by the theorists [Zhan Liwei: Criminalization and decriminalization of gambling -- also on the position choice of China's criminal law on gambling, Journal of Jilin Public Security College, 2006, Issue 2].

So whether it is gambling or opening a casino, there is no doubt that the legal interests are infringed, and the legal interests damaged by the two are consistent. In the history of criminal legislation in China, gambling crimes have always been placed in the chapter of crimes against social management order in the specific provisions of criminal law. Most people believe that gambling crimes infringe on public legal interests. There are also some views that the legal interests infringed by gambling crimes are property ownership and social customs [Zhou Lin: Preliminary Discussion on Gambling Crimes, Journal of Southwest University for Nationalities [Humanities and Social Sciences Edition], 2004, Issue 6]. Scholars who advocate this view believe that whether gambling or opening a casino, it creates a risk of property loss for others, and violates the healthy and progressive morality advocated by the society. The author believes that this view is not sufficient. If the property ownership is considered to be the legal interest infringed by gambling crime, then the gambler is the behavior victim. Although in fact, gambling crime does create a risk of property loss for the victim, the causal process from risk to actual harm is not exclusively dominated by the perpetrator. At this time, the risk is abstract. The victim has the right to choose. Only when the victim chooses to participate in gambling at the cost of property loss can the danger be materialized. What really dominates the cause and effect process and makes the actual result of the harm come true is the victim itself. In other words, the loss of property is actually due to the punishment of the victim. The victim is willing to risk himself when he knows the risk of property loss and participates in gambling, which should be considered as the victim's self responsibility, Then it is impossible to attribute the result of legal interest damage to the perpetrator of gambling crime, and gambling crime is not punishable. Therefore, the view that property ownership is the legal interest infringed by gambling crimes is obviously inconsistent in logic. However, social fashion is an element of morality, and the behavior that purely damages ethics obviously does not have the punitive nature of criminal law.

The author believes that the legal interests harmed by gathering people to gamble and open casinos should be social public legal interests, specifically, what it harms is a sound social order. On the one hand, it enlarges the fluke psychology in human nature and destroys the economic life style and order of obtaining property through labor; On the other hand, it has buried the hidden danger of social contradictions and become the inducement of a series of crimes, endangering the order of social security management.

（4） Objective manifestations of crime

Gathering people to gamble and setting up casinos are consistent in three aspects: subject of action, infringement of legal interests, and subjective intention. They also have certain similarities in the objective form of expression, both have the performance of gathering multiple people to gamble and the behavior of taking advantage of others. However, the difference between the two is also in the objective form of expression.

1. Gather people to gamble

The first paragraph of Article 303 of the Criminal Law stipulates that gathering people to gamble is one of the forms of behavior of the crime of gambling, but there is no further explanation of the manifestations of gathering people to gamble. The academic community has different opinions on this. There is a view that gathering people to gamble means gathering more people to engage in gambling [Zhang Mingkai: Criminal Law, Law Press, 2016 edition, page 1078.]. There are also views that gathering people to gamble is an act of common gambling by unspecified majority [Dong Yuting: Research on Gambling Crime, Contemporary Law, 1999, Issue 4].

Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Some Issues Concerning the Specific Application of Laws in Dealing with Criminal Cases of Gambling

For the purpose of making profits, one of the following circumstances shall be regarded as "gathering people to gamble" as stipulated in Article 303 of the Criminal Law:

（1） Organize more than 3 people to gamble, and the total amount of profits from tapping has reached more than 5000 yuan;

（2） Organize more than 3 people to gamble, and the accumulated amount of gambling funds reaches more than 50000 yuan;

（3） Organize more than 3 people to gamble, and the number of participants accumulatively reaches more than 20;

（4） Organize more than 10 citizens of the People's Republic of China to go abroad to gamble and collect kickbacks and referral fees from them.] Among the four listed situations that constitute mass gambling, the word "organization" is mentioned. It can be seen that the criminal law focuses on the behavior of "gathering" for gambling punishment, that is, the organizational behavior of organizing and soliciting gamblers to participate in gambling. So it is obviously against the modesty of criminal law and the original intention of legislation to interpret the gathering of people to gamble as the common gambling of unspecified majority. The key to the social harmfulness of mass gambling is to organize and gather gamblers to participate in gambling activities. Ordinary participants in gambling activities may be convicted of "gambling as a profession", or be subject to administrative punishment, but should not be regarded as mass gambling. In addition, the first case listed in the first article of the Interpretation of Several Issues Concerning the Specific Application of Law in Dealing with Criminal Cases of Gambling issued by the two high schools takes the amount of tap profits as the standard of conviction. It can be seen that tap profits are also a common way of behavior in gambling. Therefore, the objective behavior of gathering people to gamble should be to organize and gather unspecified objects to participate in gambling activities, from which the actors can take a chance to make profits.

2. Opening Casino

The crime of opening a casino does not further explain the behavior of opening a casino. Some people believe that opening a casino is the act of setting up a place for others to gamble under the control of the actor [Zhang Mingkai: Criminal Law, Law Press, 2016 edition, page 1079.]. There are also views that opening a casino is not only a place for people to gamble, but also includes making rules to provide gambling equipment [Yin Jianfeng and Yuan Hui: Research on the Criminal Law Regulation of Gambling Crimes in China, Research Report on the Development of Criminal Rule of Law, 2013-2014]. There are also views that the opening of casinos is an act in which the actor becomes the master, provides gambling places and gambling equipment for others to gamble, and the actor profits from it [Li Xihui: New Theory on Crimes of Disrupting Social Management Order, Wuhan University Press, 2001 edition, page 181.]. Horizontally, different viewpoints have the same definition of the act of opening a casino, emphasizing "place" and the actor's control over "place". However, different viewpoints have their own focuses, such as the provision of gambling equipment, the formulation of rules, and the performance of tapping profits.

As the name suggests, the way of opening a casino should first include the act of setting up and providing places. The establishment is not only limited to the place opened by the actor himself for gambling, but also includes the operation of the place set up by others and participation in the profit sharing of other places. And the place is not only a physical place, but also a virtual place. The 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 Internet Gambling Crime Cases clearly include the opening and operation of gambling websites as the crime of opening casinos, and provide gambling websites with Internet access, server custody, technical support, fund payment and settlement business, advertising and other services, At the same time, if the service fee collected reaches a certain amount or the amount of advertising reaches a certain amount, it shall be punished as a joint crime of the crime of opening a casino. Secondly, in addition to setting up places, the actor will also provide necessary elements for gambling, such as making rules, providing gambling equipment, etc. Finally, the actor makes profits by collecting service fees, service fees, and tapping profits.

3、 Differentiation between the Crime of Gathering Gambling and Opening Casinos

From the legislative evolution of gambling crimes, it can be seen that the crime of opening a gambling house originated from the crime of gambling. Gathering people to gamble is one of the objective manifestations of gambling crimes, and opening a gambling house was also one of the objective manifestations of gambling crimes in the history of criminal legislation. The two have consistency in three aspects: the subject of behavior, subjective intention, and damage to legal interests. In terms of objective manifestations, there are manifestations of gathering multiple people to participate in gambling and the actor profiting from it, In practice, it is often difficult to distinguish between group gambling behavior and atypical casino opening behavior. The debate on how to distinguish between the two is rampant, and both the practical and theoretical circles have made a series of attempts to do so.

（1） Differentiation between the Crime of Gathering Gambling and Opening Casinos in Judicial Practice

The following are two cases from judicial practice:

Case 1: From October to December 2012, Zhou and Wang organized more than 20 gambling personnel to gamble on a mountain in Wencheng County, and drew a top salary of over 5000 yuan from them. During this period, Wang helped the casino introduce gambling personnel and repeatedly transported Wei, Lan, and others to the casino for gambling protection. [Criminal Judgment No. 127 of Wen Mou Xing Chu Zi (2013) issued by the People's Court of Wencheng County, Zhejiang Province.]

Case 2: From May 13 to May 15, 2014, Bu, Xu, and Shen set up a gambling game in a residential house in a local village. The three arranged for Zheng to take a draw inside the casino, and Gu and Wang to watch out outside the casino. They organized more than 20 gamblers to gather and gamble in the form of "hard Pai Gow", with a total profit of over 10000 yuan. The People's Court of Wenjiang District, Suzhou City, Zhejiang Province (2014) Wu Jiang Xing Chu Zi No. 0707 Criminal Judgment

Through horizontal comparison, there is a high degree of similarity in the criminal behavior in the two cases mentioned above. Each of the perpetrators set up a venue to solicit gamblers to gamble and profit from it, while hiring personnel to be responsible for gambling, field protection, and lookout work. The scale of gambling activities is also very similar, with around 20 people. The difference is that in Case 1, the gambling activity lasted for more than two months, while in Case 2, the gambling game was seized by the public security organs on the third day of its opening. The processing results of the two cases are far from each other. In the first case, the prosecutor's office prosecuted the crime of gambling, and the court ultimately found the crime of opening a casino. In the second case, the prosecutor's office prosecuted the crime of opening a casino, and the court ultimately ruled on the crime of gambling. The reasons for the judgment in the first case pointed out that the casino in this case has a certain degree of openness, organization, stability and continuity in terms of time, and the non-specific nature of the participants, which meets the constitutive requirements for opening a casino. The judgment document in Case 2 states that the gambling venue of the perpetrator in the case is not fixed, the participants are temporarily summoned, the gambling duration is short, and it has a certain degree of secrecy. His behavior has already constituted the crime of gambling.

The judgment reasons for the above two cases will distinguish between crowd gambling and opening a casino, with the focus on factors such as the fixed location, the duration of time, and the scope of gambling personnel. According to the author's search of relevant criminal judgments on the Judgment Documents website, fixed venue, stable time, gambling scale, and personnel division are the keywords that frequently appear in the judgment reasons. In judicial practice, the focus of most courts in distinguishing between collective gambling and the establishment of casinos is that the establishment of casinos is open, facing an unspecified majority of people, the scope of collective gambling is uncertain, the scale is large, the venue and time of collective gambling are fixed, the organization is close, and the division of labor is clear. On the contrary, collective gambling is the opposite, with both the venue and personnel having temporary nature and loose personnel relationships.

The viewpoint of distinguishing casinos from mass gambling in judicial practice is based on experience and has certain reference significance. It has indeed played a significant role in defining this crime and that crime in some cases, but its content is too complex, the elements are loose, and a systematic methodology has not been formed. And some elements lack inevitability. For example, in cases of opening a casino, the venue is usually fixed and time stable, but there are also atypical cases of opening a casino, where the venue is mobile and the time is not fixed. Therefore, distinguishing between opening a casino and gathering gambling based on the two elements of "venue fixation" and "time stability" cannot lead to a unique conclusion. In addition, some elements have strong subjectivity in judgment, which may lead to situations where the judgment results of homogeneous cases are completely opposite, and instead blur the boundary between the two.

（2） Debate in the theoretical community on distinguishing between the crime of gathering people to gamble and the crime of opening a casino

There is also a lack of consensus in the academic community on the criteria for distinguishing between gathering for gambling and opening casinos.

There is a viewpoint that the key to distinguishing between the two is the definition of a casino. Scholars who advocate this viewpoint believe that casinos should be defined from three aspects. Firstly, the casinos in the establishment of casinos have a wider spatial range than those where people gather for gambling, including not only traditional casinos but also online casinos. Secondly, opening casinos often has a fixed time frame and is relatively covert, with strong anti reconnaissance capabilities from the perpetrator, while gathering for gambling is relatively open and casual. Thirdly, the establishment of casinos is to attract gamblers to participate in gambling through a fixed "venue", while gamblers who gather for gambling are often loosely convened by the actors. Zhang Feifei: "Definition of Gathering Gambling and Opening Casinos", Jiangsu Legal Daily, January 23, 2015, 00C Edition

The author believes that this viewpoint is not sufficient, and there are some misunderstandings in their understanding of the manifestations of crowd gambling and opening casinos. Firstly, this viewpoint suggests that the "casinos" that open casinos include online casinos, while venues that gather for gambling do not include online casinos. This fundamentally negates the criminality of online gambling behavior, which is clearly contrary to the original intention of legislation. According to Article 1 of 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, the determination of whether the perpetrator constitutes a gathering for gambling is based on the amount of fishing profits, gambling capital, and the number of participants, while the nature of gambling venues is not one of the essential factors. In judicial practice, there are also examples of treating online gambling as a gambling crime, such as the gambling case of Li Moumou in Gaozhou City, Guangdong Province [Guangdong Province Gaozhou City People's Court (2021) Yue 0981 Criminal Judgment No. 179], and the gambling case of Yang Mou in Qibin District, Hebi City, Henan Province [Henan Province Qibin District People's Court (2021) Yu 0611 Criminal Judgment No. 373]. Moreover, this viewpoint is logically self contradictory. It believes that opening a casino is to attract gamblers with a fixed location, so the casino should have openness and be targeted towards unspecified objects. However, this view also believes that opening a casino has concealment, which is clearly self contradictory.

There is also a viewpoint that the two should be distinguished from the following four aspects. One is the foothold of behavior. The focus of the casino opened is on the "field", while the focus of group gambling is on the "crowd". The second is whether the actor directly participates in gambling. Casino owners often only provide venues, gambling equipment, etc. without directly participating in gambling, but the conveners of group gambling often actively participate in gambling. The third is the degree of rigor. The internal personnel of a casino have a clear division of labor and strict organization, which are directly or indirectly controlled by the actors. However, the conveners of group gambling often do not have control over the gambling game. The fourth is social impact. Opening casinos has the characteristics of imitating criminal organization, often accompanied by a series of other crimes, and has serious social harm. However, collective gambling is relatively less socially harmful. [Li Zhuoqing and Zhong Siwen: "The Difference between Opening a Casino and Gathering Gambling", 3rd edition of Procuratorial Daily, October 21, 2013.]

This viewpoint leans more towards empirical summary and lacks theoretical support for the distinction between crowd gambling and opening a casino. Scholars who advocate this viewpoint believe that those who set up casinos often do not directly participate in gambling, while those who engage in group gambling do the opposite. However, in both legislative and judicial practice, whether the actor participates in gambling has never been considered a prerequisite for determining the establishment of casinos or group gambling. In practice, there are a large number of cases where the actor also actively participates in gambling, especially in atypical cases of opening casinos. In addition, this viewpoint mistakenly considers the accidental and abnormal causal relationship between the crime of opening a casino and other illegal criminal activities to be an inevitable and normal causal relationship. Therefore, this viewpoint lacks universality and guiding significance, and instead blurs the boundary between this crime and that crime.

In addition, there is also a viewpoint that the key to distinguishing between the two lies in whether the actor has control over gambling activities. Scholars who advocate this viewpoint believe that the actor's control over gambling activities should be measured from three aspects: firstly, the control over gambling venues. The second is the control over the division of labor among internal personnel, mainly reflected in clear hierarchical relationships and work systems. Thirdly, control over operations. Mainly reflected in formulating rules, providing gambling equipment, determining business hours and profit methods. Li Lianhua and Ju Jiajia: "The Boundary between Opening Casinos and Gathering Gambling", Chinese Prosecutors, Issue 4, 2009

The viewpoint of distinguishing between opening a casino and gathering gambling through control is an important attempt to shift the focus of differentiation from formal elements to substantive foundations. Both viewpoint 1 and viewpoint 2 attempt to exhaustively list the differences between opening casinos and gathering gambling by summarizing their externalized manifestations. These viewpoints focus on the differences in externalization, but do not delve into the substantive basis of their differences. In fact, they construct a closed system that is inevitably disconnected from practice and lacks legal support. But the third viewpoint is not perfect either. This viewpoint holds that the person who opens a casino has control over the venue, while the person who gathers gambling has no control over the gambling venue. However, in practice, there are many instances where individuals gather to gamble in their own rented houses or in established WeChat groups. In such cases, individuals who gather to gamble also have control over gambling venues. In the gambling case of Zhu in Haishu District, Ningbo City, Zhejiang Province, the perpetrator Zhu gathered people in a hotel room to gamble. In this case, although the hotel room did not belong to the perpetrator, during the period of the perpetrator's rental, they enjoyed absolute exclusive control over the room.

（3） A New Exploration of Differentiation Theory

The author believes that there is an inclusive relationship between opening a casino and gathering gambling in terms of behavior. Gathering gambling is a single behavior, manifested as gathering people to gamble and profit from it, while opening a casino is a composite behavior. In addition to providing venues, the behavior also includes soliciting gamblers, hiring people, and taking turns to profit.

Whether it is opening a casino or gathering for gambling, there are places for gambling. Whether there is a place, how organized, how open, and how personnel are divided are only external manifestations of the difference between the two, or formal elements for differentiation. The essence of the difference between opening a casino and gathering people for gambling should lie in the dominance of the actors over gambling activities. Exploring the differences between the two should be based on substantive foundations and analyzed in conjunction with external manifestations. Due to the fact that the "casino" in the establishment of a casino is not simply a "place", the casino here should be a collection concept, consisting of a collection of places, personnel, gambling equipment, funds, etc. Therefore, the control of the actor should not only target the place, but also have control over personnel, funds, etc. The perpetrator of opening a casino should have control over the gambling venue, internal personnel, and funds, which is precisely what collective gambling behavior does not have.

1. Dominance over the venue

The person who opens a casino has spatial control over the gambling venue, which is de facto control, meaning that the person can actually control the venue for a period of time. The actor can control the place through ownership, and the ownership itself has exclusivity. On this basis, the actor can naturally achieve control over the place. In addition, this exclusive control can also be achieved through possession, whether it is normative possession or factual possession, which can establish control.

In the case of Liu Mou opening a casino in Kaifu District, Changsha City [Criminal Judgment No. 196 (2020) Xiang 0105 Xing Chu)], the perpetrator invested in leasing a warehouse in a village in Kaifu District, Changsha City to open a casino through the "Tuozi" method. The possession established by the legal relationship of leasing is a typical normative possession. The perpetrator does not have ownership of the premises, but during the lease term, the leased property can only be controlled by the perpetrator alone, and even interference from the owner is excluded. Even if the leased property is not actually under the supervision of the perpetrator, control still exists.

In the case of Chen Moumou opening a casino in Fengcheng City, Jiangxi Province, the perpetrator opened a casino in a vacant land on a barren mountain in Fengcheng City. The actor's possession of the place in this case is factual possession. The actor cannot have ownership of the mountain forest, nor does it have normative rights established through legal actions. The actor places the place within their own, temporary, and actual regulatory scope through factual actions, thereby forming factual possession of it.

At the same time, the person who opens a casino should also have functional dominance over the venue. That is, the actor can independently control the purpose, address, duration, etc. of the place.

Functional dominance is the difference between opening a casino and gathering gambling in terms of the "place" element. Gamblers may have spatial control over gambling venues, but there is no functional control. The premise of gathering for gambling is the prior agreement between the meaning contact person and other gamblers. In other words, the opening or not, the opening time, and the opening location of the gambling game are not independently controlled by the actor. Therefore, the behavior of gathering for gambling has a strong human nature, often gathering and dispersing for each person, with the first gathering of people and then the gambling game. This determines that the behavior has a hidden and closed scope in terms of external manifestations. The actor who opens a casino does not need to communicate with the gambling personnel beforehand, and the actor can unilaterally control the implementation of the venue's functions, causing gambling personnel to gather based on the venue. The difference in the degree of social harm between the two lies in this. The root of the social harm caused by collective gambling lies in the organizer's behavior of gathering people to gamble. The scope of gambling is usually a closed loop, with limited social impact, while the audience for opening a casino is an unspecified relative person. The scope of collective gambling is open, and the harm to social management order is broader and more serious.

In practice, there are some viewpoints that consider whether the venue operates for a long time and stably as one of the criteria for defining the crime of opening a casino and gathering people for gambling. In practice, there are many cases where a casino is caught by the public security after being opened for a few days. These cases are caused by external reasons that prevent the casino from operating for a long time and stably. Therefore, if it is considered that such cases cannot constitute the crime of opening a casino, it is obviously unfair. Therefore, this viewpoint is too idealistic, lacks operability, and is not applicable.

2. Dominance over personnel

The dominance of personnel is the most significant and operational element in distinguishing between opening a casino and gathering for gambling. The person who opens a casino should have dominance over the internal personnel of the casino, that is, within the scope of the casino, there is a subordinate and management relationship between them and the internal staff, and this relationship is not necessarily based on material rewards.

There is a strict hierarchical relationship between internal staff vertically, and a clear division of labor horizontally. The organizational structure is tight, and the ultimate control returns to one or several casino operators. From the perspective of conventional cases of opening casinos, common types of division of labor include fishing for profits, picking up and dropping off gambling personnel, exchanging cash, and protecting the venue. Owners and operators usually give certain rewards to these personnel, but the presence or absence of rewards does not affect the existence of internal division of labor relationships. In addition, those responsible for casino work may also actively participate in gambling.

In most cases of crowd gambling, there is no clear division of labor among the personnel, but there may also be division of labor among the actors in some cases of crowd gambling. For example, there are personnel specifically responsible for monitoring the wind and fishing profits, but this division of labor often has spontaneity and instability, and the summoner does not have dominance over other personnel, is an equal relationship, and there is no hierarchical division. For example, in the gambling case of Chen and Qin in Pingnan County, Guigang City, Guangxi Province [People's Court of Pingnan County, Guigang City, Guangxi Province (2017) Gui 0821 Xing Chu No. 486], the perpetrator Chen and Qin set up a stall in front of a shop in Pingnan County from time to time, and gathered people to gamble in the form of rolling dice to bet on "big and small". Chen was responsible for rolling dice to set up the gambling house, and Qin and others were responsible for "Heli" to compensate for the gambling capital. The casino earned a total of 5000 yuan, The cumulative number of participants in the gambling has exceeded 20. In this case, there was a division of labor among the actors, but this division of labor was voluntarily undertaken by each person to achieve profits. There was no relationship between the actors between management and being managed, nor between control and being controlled, and a strict organizational relationship was not formed.

3. Disposability of funds

A typical casino operator typically provides chips as a unified currency, and the exchange and settlement of chips are controlled by the operator or staff hired by them. In casinos that do not provide chips, cash settlement is usually used for anti reconnaissance purposes, and the opening of casinos usually enjoys exclusive control over cash exchange, lending, settlement and payment services within the casino. Usually, the behavior of opening a casino is to provide high interest loans for gambling personnel, and this business is only controlled by the casino operator, or by personnel hired by the operator at their discretion, and cannot be interfered with by others. Although there may also be chips in collective gambling, neither the chips nor the lending and settlement businesses are controlled by the participants of the collective gambling.

The following is a case study to further illustrate the viewpoint proposed by the author.

Basic case: From November 2020 to December 24, 2020, Zhang opened an open-air gambling game in several local wastelands, where he provided playing cards as a gambling tool and recruited gamblers to come and gamble. Zhang took advantage of it. Zhang usually notifies gamblers at 5 or 6 pm in the evening and informs them of the location of the bet, which lasts until the early morning of the next day. Zou, Guo, Chen, and others provided high interest loans to gamblers during the opening period of the gambling game. Du, Yang, Li, and others pick up gamblers to participate in the gambling game, and Zhang pays remuneration to the aforementioned personnel from time to time. The gambling game has been open for over 19 days, with a total profit of over 190000 yuan.

This case is a case handled by the author in practice. Zhang's behavior in this case has some characteristics of the crime of opening a casino, but it is not a typical case of opening a casino. Therefore, there are significant differences in the conviction of the perpetrator during the handling process. The author believes that although this case is not a typical case of opening a casino, the perpetrator has control over the venue, internal personnel, and funds, and gambling activities are carried out under their control throughout the entire process, which should be recognized as the crime of opening a casino.

Firstly, the perpetrator established control over the wasteland by setting up a gambling game through factual possession. Anyone has the right to pass and stay in the wasteland, and the act of setting up a casino here establishes temporary control over the space of the place through factual actions. The operating time, installation location, gambling rules, etc. of the venue are all determined by the perpetrator, and there is no need to communicate with gambling personnel in advance. The perpetrator has the right to control the functionality of the venue, and the venue is open to unspecified objects. Gambling personnel gather based on the venue. Secondly, there is a clear and fixed division of labor among the internal personnel of the casino, and there is a clear subordinate relationship between all personnel and the operator, which is managed and controlled by them, and the organization is tight. Finally, the casino adopts cash transactions, and the personnel who provide high-interest loans within the casino are all hired by the operator. Cash exchange, lending, and payment settlement businesses are all in the hands of the operator.

4、 Conclusion

The elements used to distinguish crowd gambling from opening a casino, however complex, cannot ultimately be separated from substantive dominance. Theory often lags behind due to limitations in practice, level of understanding, and way of thinking, and research on the distinction between crowding gambling and opening casinos cannot escape this fate. But this is not to declare that research on gambling crimes is futile, but rather to provide a glimmer of comfort to all those who seek truth, teaching people to face the advantages and limitations of theory with a dialectical attitude and a peaceful attitude, and to approach truth through this.

——This article won the Excellent Award at the 2022 Taizhou Lawyer Industry Excellent Paper Seminar

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