Guiding the application of a number of provisions of Articles 248 and 249 of the Penal Code
JUSTICE OF THE ULTIMATE PEOPLE’S COURT
Pursuant to the Law on Organization of People’s Courts;
In order to properly and consistently apply provisions of the Criminal Code;
After consulting the Head of the Supreme People’s Procuracy and the Minister of Justice,
Thing 1. Regarding a number of provisions in Article 248 of the Penal Code
1. “Illegal gambling” is a gambling act performed in any form for the purpose of losing money or in kind without the permission of a competent state agency or by a state agency. have the authority to permit but do not comply with the provisions of the license granted.
2. When determining the criminal liability to a gambler, it is not allowed to calculate the total amount or value of in kind used for gambling of all gambling attempts, but must be based on each gambling time; As follows:
a) If the total amount or value of kind used for gambling of each gambling time is below the minimum level for criminal prosecution (under VND 2,000,000) and does not fall into one of the other cases for retrospective purposes. save criminal liability (have been convicted of this crime or the crime specified in Article 249 of the Penal Code, the criminal record has not been erased but still commit the violation), the gambler shall not be held criminally responsible for the crime. silver;
b) In cases where the total amount or value of objects used for gambling is equal to or above the minimum level for criminal prosecution (from 2,000,000 VND or more), the gambler must be prosecuted. criminal liability for gambling charges against such gambling;
c) In case of gambling more than two times with the total amount and value of kind used for gambling of each gambling time equal to or above the minimum level for criminal prosecution (from VND 2,000,000 or more) then the gambler must be examined for penal liability for the gambling crime with the aggravating fact of “committing crimes more than once” specified at Point g, Clause 1, Article 48 of the Criminal Code;
d) In case of gambling from five times or more with the total amount and value of kind used for gambling of each gambling time equal to or above the minimum level for criminal prosecution (from 2,000,000 VND or more) and taking money and objects from gambling but being the main source of life, gamblers must be examined for penal liability for gambling with the “professionalism” framing circumstances specified at Point a, Clause 2. Article 248 of the Criminal Code.
3. “Money or kind used for gambling” includes:
a) Money or objects used for gambling collected directly at the silver screen;
b) Money or kind seized from gamblers that have a definite basis to be or will be used for gambling;
c) Money or kind seized elsewhere with sufficient grounds to be determined that have been or will be used for gambling.
4. When determining money, the value of objects used for gambling needs to distinguish:
a) In case many gamblers join together, the determination of money and in kind value for each gambler is the total amount and value of kind used by those gamblers. in Clause 3 of this Article;
b) In case of gambling in the form of lottery betting, soccer betting, horse racing … then one game of problem numbers, one football bet, one horse racing bet … (to count as one-time gambling) means taking part in a lottery, betting on a football match, betting on a horse race … in which a player can play in multiple rounds . Criminal liability determined to a player once gambling in these circumstances is the total amount and value of in-kind used to play in those bets.
Example 1: At the 39th equestrian race, held on July 15, 2010, between 9:00 a.m. and 11:00 a.m., A wagered three specific times, namely round one 500,000 VND, phase 2 1,000,000 VND, the third round of 2,000,000 VND, in this case only A gambled once in that horse race with the total amount of 3,500,000 VND.
Example 2: On July 20, 2010, from 10:00 am to 4:00 pm, B buys three numbers in a lot, namely: buy 17 with the amount of 500,000 VND, buy number 20 with the number money is 2,100,000 VND, buy number 25 with amount 3,000,000 VND; in this case, B will only gamble once.
In the cases mentioned in example 1 and example 2 above, if the betting amount for horse racing and the number of cards for each round is 2,000,000 VND or more, the aggravation is not applicable. committing crimes more than once ”specified at Point g, Clause 1, Article 48 of the Penal Code.
5. The determination of the amount or value of in kind of the theme player, the bet and the subject, the betting owner uses gambling in the form of number game, football betting, horse racing … such as after:
5.1. Determine the amount or kind value of the player’s bet or gamble
a) In case players win the lottery or bet on the lottery or bet, the money they use to gamble is the total amount of money they spent to buy the lottery or bet plus the actual amount. which they get from the subject, the betting owner.
Example: B buys 5 numbers to buy with the total amount of 100,000 dong, the rate of losing 1/70 times, of which 4 numbers to buy 10,000 dong each, 1 number to buy with the amount of 60,000 dong, the behavior of After B is discovered after winning the prize, soccer result, horse racing … and B has won the lottery to buy with the amount of 60,000 VND, the amount B used to gamble in this case is 100,000 VND + (60,000 VND × 70 times) = 4,300,000 VND.
b) In case a player does not win the lottery, does not win the bet, or is discovered or stopped before the result of the draw is available, the money they use to gamble is the total amount of money they have spend to buy deals, bet
Example 1: In the example mentioned in Item a, Point 5.1, Clause 5 of this Article, if B does not win any lottery, the amount B used for gambling in this case is 100,000 VND.
Example 2: In the example mentioned in Item a, Point 5.1, Clause 5 of this Article, if B’s behavior is detected and stopped before the result of the prize drawing is given, the amount B used to gamble in this case is 100,000 VND. (it does not depend on whether B wins the lottery or not wins the lottery).
5.2. Determine the amount or artifact value of the topic, the bettor used to gamble
a) In case there is a player who plays the lottery, the bet wins the lottery, or wins the bet, the amount of the topic, the betting owner using the gambling is the whole amount actually received by the topic or betting owner from players the number of cards, the bet and the amount of the thread, the bettor must pay to pay the winner (can be one or more people).
Example: D is a topic of 5 players with different number of problems, each player has a number of problems with the amount of 50,000 VND (total is 250,000 VND); The odds of losing is 1/70 times and 2 people have won the lottery, the amount D used to gamble in this case is 250,000 VND + (50,000 VND × 70 times × 2 people) = 7,250,000 VND.
b) If there is no player with the lottery, the bet wins the lottery, the bet wins or is discovered or stopped before the prize draw, soccer result, horse racing result … The theme money, the bettor used to gamble is the total amount that the thread, the bettor has received from the players of the number of threads or bets.
Example 1: In the example mentioned in Item a, Point 5.2, Clause 5 of this Article, if all 5 players do not win the lottery, the amount that the topic uses for gambling is 50,000 VND × 5 people = 250,000 VND.
Example 2: In the example mentioned in Item a, Point 5.2, Clause 5 of this Article, if D’s behavior is detected and stopped before the result of the prize drawing is given, the amount D used to gamble in this case is 50,000 VND × 5 people = 250,000 VND (regardless of whether or not there are winners of the lottery prize).
Thing 2. Regarding some provisions of Article 249 of the Penal Code
1. Organizing gambling or gambling in one of the following cases is “large-scale”:
a) Organizing gambling or gambling with ten or more gamblers at the same time, or giving two or more silver bills with the amount or kind used for gambling with the value from 2,000,000 VND to under 50,000. 000 VND.
b) There is an organization where property is pledged to gamblers; having installed gambling equipment; When gambling, watchers and attendants are assigned to arrange an escape route when being arrested, use means such as cars, motorcycles, bicycles, phones … to help with gambling. ;
c) The total amount of money or kind used for gambling at the same time is worth 20,000,000 VND or more.
2. Organizers of gambling or gambling in the case not to the level guided at Points a, b and c, Clause 1 of this Article, if the total amount or kind used for gambling is valued at between VND 2,000,000. to less than VND 50,000,000, they are not liable for “organizing gambling or gambling” but they must bear criminal responsibility for their co-crimes.
3. “Gaining great, very great or particularly great illicit profits” is determined as follows:
a) Gaining an illicit profit from VND 10,000,000 to under VND 30,000,000 is a great illicit profit.
b) Gaining an illegal profit from 30,000,000 VND to less than 90,000,000 VND is a very great illicit profit.
c) Gaining an illicit profit of VND 90,000,000 or more is particularly great illicit profit.
Thing Effect of implementation
1. This Resolution was passed on September 23, 2010 by the Council of Judges of the Supreme People’s Court and takes effect after forty-five days from the date of its signing.
2. Section 6, Section 7, Part I, Resolution No. 02/2003 / NQ-HDTP dated April 17, 2003 of the Council of Judges of the Supreme People’s Court guiding the application of a number of provisions of the Criminal Code and Section 9, Resolution No. 01/2006 / NQ-HDTP dated May 12, 2006 of the Council of Judges of the Supreme People’s Court guiding the application of a number of provisions of the Criminal Code ceases to be effective from the date of This resolution is effective.
3. From the effective date of this Resolution, if the person commits one of the acts specified in Article 248 and Article 249 of the Penal Code, under this Resolution, he / she is not liable for criminal liability, but the The judgment is in the stage of first instance or appellate trial, it is necessary to distinguish as follows:
a) In case the Procuracy withdraws the file for additional investigation to clarify the criminal liability of the accused and the first-instance court finds it grounded, the court shall apply Point b, Clause 2 of Article. 176 of the Criminal Procedure Code makes decisions to return records to the Procuracy;
b) If the Procuracy has an official dispatch (or decision) to withdraw the decision to prosecute and request the Court to terminate the case, the judge assigned to preside over the court session to hear the case shall apply Article 181. of the Criminal Procedure Code decides to terminate the case;
c) If the Procuracy still maintains its decision to prosecute, the competent Court must issue a decision to open a court session and the Trial Panel shall apply Clause 1, Article 25 of the Criminal Code, exempting from penal liability. accused; in case the defendant is being held in detention, Clause 2, Article 227 of the Criminal Procedure Code shall release the defendant;
d) If the case is in appellate trial, the appellate court must open the court session and the trial panel shall apply Clause 1, Article 25 of the Criminal Code, Point a, Clause 1, Article 249 of the Law on Denunciations. criminal proceedings, correction of first-instance judgments, exemption from criminal liability for defendants;
dd) For cases of suspension of cases guided at Point b or being exempt from criminal liability guided at Points c and d, Clause 3, the defendants are still responsible for other matters such as liability for damages, handling of evidence … (including administrative handling, disciplinary action) or adjudication of other crimes (if any), will still be resolved according to general procedures. .
4. In cases where the offenders have been sentenced before the effective date of this Resolution in accordance with the previous documents and the judgment takes legal effect, this Resolution shall not be used to protest according to the procedure of examination. cassation, reopening, unless there are other grounds for appeal; If according to this Resolution, they are not subject to criminal liability, then they shall be handled according to the penalty execution exemption procedure. The exemption from penalty execution is as follows:
a) For a person serving an imprisonment penalty, the Chief Justice of the People’s Court of the province where the convicted person is serving the penalty shall issue a decision to exempt the remaining portion of the penalty at the request of the Head of the Procuracy. killing people at the same level.
b) For persons who are or have not yet served the non-custodial reform or imprisonment sentences but are given a suspended sentence who is serving the probation period, the Chief Justice of the district People’s Court where such person is serving the sentence penalty, serving the probationary period of the suspended sentence shall issue a decision on exemption from serving the whole or the rest of the penalty at the request of the Head of the People’s Procuracy of the same level.
c) For a person sentenced to imprisonment who is temporarily suspended from serving a penalty, is postponed serving a penalty or has not yet served a penalty, the Chief Justice of the People’s Court of the province where such person resides or works. issue a decision on exemption from serving the remaining portion of the penalty or exemption from serving the entire penalty at the request of the Head of the People’s Procuracy of the province where the person resides or works;
d) If a person is convicted of multiple crimes (in the same sentence or in many sentences), including a crime under the guidance of this Resolution, it is not a crime, then the execution exemption The penalties for this offense are as follows:
– If the convicted person has not yet served the penalty or is serving the penalty but the time of serving the penalty has not exceeded the penalty level that the court sanctioned for an offense not in the case guided in the Resolution This, they are exempt from serving the full penalty for crimes that, under the guidance of this Resolution, are not criminals anymore.
– If the convicted person is serving the penalty but the time of serving the penalty is equal to or exceeds the penalty that the court has sanctioned for an offense not in the case guided in this Resolution, then they can exemption from serving the rest of the penalty.
5. When suspending a case, exempting from criminal liability or serving penalties, the court shall issue a decision to suspend or exempt criminal liabilities or penalty execution exemption decisions, which must be explained to the suspended person. The case, exemption from criminal liability or exemption from serving a penalty is known that the suspension or exemption from criminal liability or the exemption from serving this penalty is due to the new humanitarian criminal policy of our State, not injustice caused by proceedings conducting agencies; therefore, they are not entitled to claim damages in accordance with the Law on State Compensation Liability.
6. In the course of implementation, if there is any problem that requires additional explanation or guidance, it is requested to report it to the Supreme People’s Court for timely additional explanation or guidance.
JUSTICE OF THE ULTIMATE PEOPLE’S COURT JUDGE(Signed)Truong Hoa Binh