Reflection On Criminalization Or Decriminalization Of Gambling

It is commonly acknowledged that the mere existence of gambling poses a threat to human community, no matter it happens in ancient or modern times, in China or in Western countries. Therefore, the effort people put into seeking a resolution to have it under control has never ceased. This issue turns white-hot as time goes by and the cry for severe penalty so as to"pluck up the evil by the roots"increasingly high. The essential dispute lies in whether we shall make it under absolute control or leave it alone. The same problem has been haunting the legislative branch and the judicial department of China for years. Based on results of empirical researches and fundamental principles of Chinese criminal law, this paper aims to do an in-depth analysis about how gambling shall be treated in China.This is a four-chapter paper consists of approximately 35,000 words except for the introduction section. Viewing the gambling dispute in consonant with the fundamental theories of Chinese criminal law as well as data collected from legal practices, this paper presents an dichotomic opinion that gambling for personal entertainment, gambling as a profession and unlawful gathering for gambling or establishing casinos should be differentiated. The former shall be excluded from the criminal code as a crime while the latter shall be criminalized as deterrence against social corruption. Finally,some suggestions for a change as to the current policy to control gambling are set forth in this paper to provide a more comprehensive understanding.The introduction section sums up the primary reason for writing this paper: not all gambling conducts deserve punishment and how it is so.The first chapter is an overview of gambling: the concept of gambling, the behavioral expression of gambling and the object being harmed by gambling as a criminal offence are included. The term"gambling"is used in both plain language of daily life but also in the criminal law as a specified legal term. Gambling is characterized by voluntary engagement, the contingency of profit and the beneficial outcome in all-or-nothing nature. Unlawful gathering for gambling, setting up casinos and gambling as a profession are strictly regulated by the existing Criminal Code of China. Theoretically, the differences in objects being encroached by different types of"behavioral expressions"as stated above shall be emphasized. In general, unlawful gathering for gambling and setting up casinos endanger social order which criminal law intents to maintain. On the contrary, gambling as a profession is nothing more than a personal enjoyment, which, under a more liberal view, should have been spared from criminal punishment. Therefore, this paper makes various definitions closely connected with gambling in accordance with current Criminal Code as follows: gambling for personal entertainment, unlawful gathering for gambling, setting up casinos and gambling as a profession (other quasi-gambling conduct such as lottery is not discussed in this paper).Chapter 2 introduces the theoretical debate circulating the criminal punishment of gambling and the present condition of criminal justice of gambling. Some scholars think that gambling should be criminalized. The three main reasons are: (1)gambling threatens social stability; (2) it seriously affects the moral values long been cherished in our society and (3)it creates no wealth for the community but causes great waste of social resources. They also point out the deficiency in controlling gambling in current criminal legislation and make sound recommendations thereof. The counter argument that gambling should be decriminalized was generated and further promoted following the global decriminalization trend. Some scholars advocate that those crimes without actual victim should be kept out of the scope of criminal legislation. If we construe gambling from their point of view, as a kind of crime without actual victim, gambling shall indeed be excluded from the Criminal Code. The rationale will be: to treat gambling not as a crime is to pay respect for the inherent weaknesses as human beings while regulating it in criminal law obliterates the boundary between law and ethic. Further, it is far from clear that gambling will induce "downstream crimes". It is not even a logical perspective. Gambling, as a way to dispose of one's own property, is merely an exercise of constitutional right that brings no harm to others'lawful interest other than the alleged negative effect on social morality. The sequential problem is that unlawful gathering for gambling and establishment of casinos are actually equalized in our judicial practice. What's more, due to the difficulty of inspection and lack of regulation thereof, the crime"gambling as a profession"as provided by the Criminal Code, becomes meaningless in reality.Chapter 3 lays out the theoretical foundation for arguments presented in this paper. The reflection of criminalization or decriminalization issue is analyzed in depth with four basic concepts: the functional aspect of criminal law, the courteous principle of criminal law, the function of criminal regime and the criminal notion. These concepts help in developing an overall understanding of the criminal and non-criminal dichotomy. With the constitutionalism perspective, the concept of criminal law has changed gradually. The core of our criminal law is protection of civil rights. On one hand, crimes do serious harm to the society; on the other hand, it could maintain the vitality of social organisms. The two aspects of crime are like the two sides of a coin. It is said that crime plays both positive and negative roles. These characteristics of the crime determine that our attitude towards crime should depend on the balancing of between criminalization and decriminalization. Maintaining social order and protecting human rights are the main concerns of having criminal law. In modern society, the function of protection human rights is more emphasized. Also it is widely accepted that the function of criminal is relative and restricted, rather than absolute and unlimited. Hence, under current circumstances, avoiding the"overkill"provided by criminal legislation is an inevitable choice. By setting up a high threshold of criminal punishment, overkills can be prevented and a more efficient enforcement of criminal law can be reasonably expected.In Chapter 4, the conclusion that gambling for personal entertainment and gambling as a profession shall be kept out of the criminal legislation is put forward, following the theories introduced above. The rational is: gambling, as long as it does not involve large number of people and pose negative effect to the society, shall not be severely punished by criminal law as most crimes deserve. Under the modern comprehension of criminal law and the courteous principle, gambling should be decriminalized. The particular obstacles accompanying the investigating and prosecution of gambling as a crime outweigh the general benefits or public interest that criminalizing it advances. However, unlawful gathering for gambling and setting up casinos should be criminalized because the destructive impact such conducts bring to the society can not be ignored, if they are to be permitted by criminal law. To have the gambling phenomenon under control, there are alternatives available such as by improving advanced education and enacting public policies encouraging lawful financial investment. Moral condemnation from other members in the community is another reasonable choice. It has the advantage lacking in legal sanctions that it does not influence the liberty a gambling-addicted person entitled to enjoy as a human being. Although unlawful gathering for gambling and setting up casinos are still criminalized, the scope of legislation concerning gambling control is tightly restricted and therefore, in terms of preventing wide range overkills, it has been improved.Subject to the limited length of this paper, some quasi-gambling issues such as lottery and under-the-counter gambling are not discussed. Nevertheless, they are issues in connection with gambling and worthy of further research effort in the coming future.This paper humbly present the idea of partial decriminalization of gambling, which relies heavily on the theories and principles established by those extraordinary pioneers. Hopefully, it may make a contribution to the accomplishment provided by previous researches and new ones to come.