Niu Kun Lawyer: Niu Kun Lawyer Title: Executive Director of Yunnan Tianwaitian (Dali) Law Firm, Head of Criminal Defense and Legal Counsel Team, Senior Partner
In the case of Li Mou suspected of opening a casino, Lawyer Niu Kun of Yunnan Tianwaitian (Dali) Law Firm defended him and received a light sentence
I. Brief introduction of the case
In January 2018, defendant Li obtained an agent account aa1782 from the Xinbaili gambling website in order to obtain illegal benefits, and acted as an agent on the gambling website. After that, defendant Li successively developed a number of members to carry out gambling activities under the agent account, and successively registered gambling accounts for Jian and others. Prior to the occurrence of the case, defendant Li had a total of 7 member accounts under the agent account aa1782 of the Xinbaili gambling website, with a cumulative 533133 yuan in commissions and rebates, and a cumulative deposit of 12371315 yuan for subordinate members.
II. The process of handling cases
The parties in this case had no objection to the facts and charges of the crime alleged in the indictment, and voluntarily admitted guilt, and the lawyer undertaking the case repeatedly communicated with the procurator and judge undertaking the case on the problems existing in the case, actively put forward his own views and opinions on the case to the procurator and judge, and submitted corresponding defense opinions.
Third, the defense line of thought
The defender's defense opinions are: 1. The defendant played a secondary and auxiliary role in the case and should be found to be an accessory; 2. The defendant voluntarily surrendered and truthfully confessed, which should be found to be voluntary surrender; 3. The defendant Li Shengping was not an agent in the substantive sense in this case, and his conduct was not an act of agency in the substantive sense, so it should not be found to be the crime of opening a casino, and even if convicted, it could not be found to be "serious circumstances". In summary, the court is requested to give leniency to the defendants.
IV. Results of Case Handling
Defendant Li Committed the crime of opening a casino and was sentenced to one year and six months in prison.
V. Case Handling Experience
This case is a suspected crime against the Online Gambling Case, and it involves overseas gambling. According to the "Opinions on Several Issues Concerning the Application of Law in handling Cases of Online Gambling Crimes", where gambling videos and data are transmitted using the Internet, mobile communication terminals, etc., to organize gambling activities, in any of the following circumstances, it is an act of "opening a casino" as provided for in the second paragraph of criminal law article 303:
(1) Establishing gambling websites and accepting bets;
(2) Establishing gambling websites and providing gambling to others to organize gambling;
(3) Acting as an agent for a gambling website and accepting bets;
(4) Participating in the profit sharing of gambling websites.
Where the conduct provided for in the preceding paragraph is committed in any of the following circumstances, it shall be found to be "serious circumstances" as provided for in the second paragraph of Criminal Law article 303:
(1) The cumulative amount of fishing profits from the tap reaches 30,000 yuan or more;
(2) The cumulative amount of gambling funds reaches 300,000 yuan or more;
(3) The cumulative number of participants in gambling reaches 120 or more;
(4) After establishing a gambling website, the amount of illegal gains is 30,000 yuan or more by providing gambling to others; (5) Participating in the profit sharing of gambling sites, and the amount of illegal gains is 30,000 yuan or more;
(6) Recruiting subordinate agents for gambling websites, and the subordinate agents accept bets;
(7) Soliciting minors to participate in online gambling;
(8) Other situations where the circumstances are serious.
Combined with the actual situation of Li Mou, it has met the degree of "serious circumstances" of opening a casino, so the sentence is more than three years. In this regard, the defender put forward a defense opinion that Li did not constitute the crime of "opening a casino" during the review and prosecution stage.
First, the website in which he participated in gambling was not established by him, so it did not belong to the (1) and (2) cases; secondly, like all the participants in gambling, he enjoyed the policy of getting commissions and rebates if he lost money, but this act did not belong to the profit sharing of the participating website, so it did not meet the provisions of article (4); third, the defender argued that Li also did not meet the provisions of article (3). According to this article, the suspect must act as an agent for the gambling website and accept bets at the same time to meet the above two points, and Li's behavior in this case does not meet any of the above two points.
The defender argued that in this case, he was not an agent in the substantive sense, and his conduct was not an act of agency in the substantive sense. Its behavior is typical of the agent who only uses the agent account for himself to collect commissions and rebates, which is essentially different from the general semantic "opening". In this case, although The so-called offline members of Li mou were registered in his name, they did not contact the website through it, and they all contacted the gambling website directly and bet on it, and each of them received the corresponding rebate and commission. Li Shengping did not enjoy the role and benefits of the agent in the so-called agency identity, which was only a title given to him by the gambling website. In fact, because Li Shengping did not meet the requirements of the gambling website on the actual agent, although he was nominally an agent, he did not enjoy the preferential policy that the agent could extract 0.9% of the rebate, and he has always extracted 0.6% of the rebate like other ordinary gamblers, that is, Li is definitely not an agent in the substantive sense.
The defender believes that in the process of determining the identity of the agent, the identification provided by the gambling website is an important reference factor, but in the judicial determination, it should not be mechanically confined to the identity name given by the gambling website, but should actually examine whether the acts and consequences it has committed are in line with the essential characteristics of the gambling website's agent and acceptance of bets, that is, the circulation of important information and funds as a third-party intermediary in the gambling network has been realized.
In addition, this case also lacks credible and sufficient evidence to prove that Li's conduct has reached the "serious circumstances" of 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 Cases of Online Gambling Crimes".
The defender believes that as far as Li's behavior is concerned, whether he can be called "acting as an agent" and "accepting bets" should be carefully explained, and his behavior should not be subject to excessively disparity in legal evaluation and punishment consequences under the premise that there is no essential difference between his behavior and the behavior of a simple gambling member.
In the end, although the procuratorate did not accept the defense lawyer's defense opinion that it did not constitute the crime of "opening a casino", it accepted the determination that it did not constitute the crime of "opening a casino", and after the defendant pleaded guilty and accepted punishment, the sentencing recommendation was reduced to one year and six months.
Through the lawyer's defense, the case achieved very good defense results, also safeguarded the legitimate rights and interests of the defendants, and ensured the correct implementation of the law.
Mr. Niu Kun, Executive Director of Yunnan Tianwaitian (Dali) Law Firm, Head of Criminal Defense and Legal Counsel Team, Senior Partner, Teacher of Dali University, Supervisor of Eryuan Rural Commercial Bank, Member of Criminal Committee of DaliZhou Lawyers Association, Member of Non-Litigation Committee of Dali Lawyers Association, Member of Legal Propaganda Group of Dali Lawyers Association, Member of Dali Municipal Publicity Team, Special Arbitrator of Dali Arbitration Court, Vice Principal of Legal System of Shangguan Town No. 2 Junior High School, City Partner of Trial Cube Criminal Defense Institution, The head of Dali district of Xinghuo Lawyer Platform was selected as the outstanding lawyer and cover lawyer of the 2021 "Dialogue Lawyer - Interview with China's Excellent Lawyers".