The criminal law system for the act of operating "standard fish" fishing grounds

Author: Wu Wei (Guangzhou Intellectual Property Court).

Source: People's Court Daily, July 25, 2024, page 6.

In recent years, a kind of fishing game has emerged, anglers need to pay high entrance fees, and after catching the "standard fish", they can exchange the corresponding cash according to the grade, some as high as tens of thousands of yuan or even hundreds of thousands of yuan, and the operators of the "standard fish" fishing ground attract a large number of anglers to go fishing, and make huge profits by charging high admission fees. Whether this kind of behavior of operating a "standard fish" fishing ground is a normal business activity or an act of opening a casino is a qualitative controversy, which needs to be reasonably demarcated and accurately judged.

　　Normative interpretation of the crime of opening a casino. It is generally believed that gambling refers to the act of gambling or gambling with property to win or lose by chance. Gambling activities have contributed to the social atmosphere of getting something for nothing, and it has also given rise to many illegal and criminal problems, undermining the order of social management. The legal interests infringed by opening casinos are derivative and expanded, which is manifested in the infringement effect of inducing, agglomerating, and amplifying gambling. The author believes that there should be no strict distinction between casinos and gambling establishments, because the main function of both casinos and gambling establishments is to provide conditions and convenience for gambling behavior, and both have the effect of promoting and encouraging gambling. In fact, the criminal law does not impose special restrictions on the scope of casinos, which is also necessary to adapt to the rapid development and change of society. Therefore, the crime of opening a casino should be understood in the context of the protection of legal interests. On the one hand, the owner needs to have management of the gambling establishment, absorb gambling personnel, and ensure the normal operation of the gambling establishment; On the other hand, it is necessary to have a certain attraction to gambling participants in order to stimulate and promote the proliferation of gambling. That is, the key is to grasp the control and openness of gambling establishments. Control refers to the control of gambling establishments, so as to maintain the normal gambling order and ensure the normal conduct of gambling activities. Openness, that is, the time and place of opening a casino are known by a certain range of people, and it has the conditions to attract more gambling participants.

　　The basic model of operating a "standard fish" fishing ground. The so-called "standard fish" was originally an ordinary fish, but the operator of the fishing ground put a label on the fins and other parts of the fish to represent different prices, that is, giving it a value ranging from a few hundred yuan to tens of thousands of yuan. Anglers pay a high entrance fee to get the opportunity to fish for sky-high "standard fish", and redeem high prizes for "standard fish" instead of simply experiencing the fun of fishing and getting fish. Operators of "standard fish" fishing grounds use sky-high "standard fish" as a gimmick to stimulate greed, attract a large number of anglers to go fishing, and charge high entrance fees to make huge profits. Specifically, in the operation of "standard fish" fishing grounds, operators often use WeChat groups and Moments to hype up about the release of high-value "standard fish" and the exchange of high bonuses by anglers for online drainage to attract others to fish; At the fishing grounds, there are staff to manage the fishing activities, review the "standard fish", take pictures, and redeem them. This fishing mode of online drainage and offline organization ensures the smooth operation of the "standard fish" fishing grounds.

　　Characterization of the behavior of operating "standard fish" fishing grounds. "Standard fish" fishing grounds and ordinary paid fishing grounds both charge admission fees, have management staff, all of which are manifested in the organization of fishing activities, but there are the following obvious differences: First, the "standard fish" fishing grounds often have admission fees as high as thousands of yuan, which is significantly higher than that of ordinary paid fishing grounds, beyond the scope of normal places and service fees. Second, the price of "standard fish" far exceeds the market price of the fish itself, and the price gap between the "standard fish" is large, which is not reflected in the type and size of the fish, but in the label attached to the fish, and the price of the fish in the ordinary paid fishing ground basically matches the market price of the fish itself, and there is no abnormally high price. The third is that the "standard fish" has the function of realization, the angler can not take away, can only exchange the corresponding cash according to the price represented by the "standard fish", and the ordinary paid fishing ground can be taken away, but also can be paid by the operator to recycle, and the recovery price is equivalent to the market price of the fish. In short, unlike ordinary recreational fishing, in the "standard fish" fishing ground activity, what attracts anglers is not the excellent fishing environment and high-quality fishing service of the fishing ground, but the temptation to get sky-high "standard fish" bonuses. For anglers, although they do not formally bet on their money, they pay a relatively low ticket fee in exchange for the opportunity to win a sky-high price of "standard fish", and the ticket fee is actually a bet. As for whether or not to catch the "standard fish", the number of "standard fish" and the price represented, it mostly depends on luck, and has the characteristics of small and large, and the results are random, which is in line with the essential characteristics of gambling. In the "standard fish" fishing activity, the operator of the "standard fish" fishing ground unilaterally determines the price of the fishing ground ticket, the number of "standard fish", the price system of "standard fish", the fishing rules, and the exchange rules. In order to reduce the probability of catching "standard fish" as much as possible, operators often take measures such as limiting fishing gear, specifying bait, limiting fishing time, drawing lots to determine fishing positions, and recovering catches, and anglers can only passively accept them. Obviously, the operator has a strong control over the fishing ground and meets the control criteria for opening a casino. Operators do not have restrictions on anglers, and often form "fishing friend groups" and send "winning" dynamics in real time to attract them to participate in fishing activities, which meets the openness standard for the crime of opening casinos. In other words, in the name of providing recreational fishing and entertainment services, the operators of the "standard fish" fishing grounds actually took advantage of the anglers' speculative and risk-taking psychology and lured them with huge bonuses to organize unspecified anglers to carry out small and large-scale gambling behaviors, which met the constitutive elements of the crime of opening a casino. Of course, the "standard fish" fishing ground generally distinguishes between "standard fish" and ordinary fish, but even if all the fish are "standard fish", as long as the price gap between the "standard fish" is large, so that anglers have a speculative mentality, it may constitute the crime of opening a casino.

　　Accurate sentencing for operating "standard fish" fishing grounds. In such cases, the factors affecting sentencing mainly include the size of the fishing ground, the amount of gambling funds, and the profits from taking profits, among which how to calculate gambling funds is controversial. Some people believe that gambling includes the cost of the angler's entrance fee and the price of the "standard fish" in the fishing grounds, as well as the sum of the prices of all the "standard fish" in the fishing grounds; Another view is that it includes the total cost of the angler's entrance fee and the price of the "standard fish" and the common fish caught. The author believes that the latter is more scientific and reasonable. On the one hand, the first view will lead to unfair sentencing results, because the calculation method of adding all the "standard fish" in the fishing ground will lead to double counting of gambling funds, while not counting ordinary fish in fishing will lead to the possibility of indulging in crimes. On the other hand, according to Article 8 of the 2005 Interpretation of the Supreme People's Court and the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases of Gambling, the money and property used for gambling, the money and goods exchanged for chips and the money and property won through gambling are gambling funds. Article 5 of the 2014 Opinions of the Supreme People's Court and the Supreme People's Court on Several Issues Concerning the Application of Law in Handling Cases of Using Gambling Machines to Open Casinos also contains similar provisions. Accordingly, the admission fee charged by the operator is a bet, and the amount cashed out when the "standard fish" and ordinary fish are caught is the money and goods won, which should be recognized as gambling money. The reason why the price of ordinary fish is included in the gambling range is because ordinary fish are also the object of fishing after the angler pays the entrance fee, and the ordinary fish can also be exchanged for corresponding cash, but the price is low. In this way, the gambling funds involved in the case can be fully and reasonably calculated, and then the sentence can be accurately determined.